Chilling effect

A chilling effect is generally understood to be when an individual, organization, or group is prevented from exercising their legal rights, self-censoring either the sharing of information or abstaining from doing an activity, out of fear of repercussions and harm if they act. Outside the legal context in common usage; any coercion or threat of coercion (or other unpleasantries) can have a chilling effect on a group of people regarding a specific behavior, and often can be statistically measured or be plainly observed. For example, the news headline "Flood insurance [price] spikes have chilling effect on some home sales,"^[1] and the abstract title of a two-part survey of 160 college students involved in dating relationships: "The chilling effect of aggressive potential on the expression of complaints in intimate relationships."^[2]

Censorship
Media regulation Books books banned Films banned films Internet circumvention Music Postal Press Radio Speech and expression Student media Televisions banned televisions Thought Video games banned video games
Methods Bleeping Book burning Broadcast delay By copyright Cancel culture Censor bars Chilling effect Collateral censorship Concision Conspiracy of silence Content-control software Damnatio memoriae Debanking Deplatforming Euphemism Minced oath Expurgation Fogging Gag order Gatekeeping Hallin's spheres Heckling Heckler's veto Hush money Internet police Malinformation Media blackout Memory hole National intranet News embargo Newspaper theft Non-disclosure agreement Opinion corridor Overton window Pixelization Political correctness Prior restraint Propaganda Purge Redaction Revisionism Sanitization Self-censorship Shadow banning Social rejection Speech code Spiral of silence Strategic lawsuit Super-injunction Surveillance computer and network mass Taboo Whitewashing Word filtering
Contexts AI Algorithmic Chinese censorship abroad Criminal Corporate Apple Facebook Google Hate speech Online Ideological Academic LGBT issues Media bias Moral police Moralistic fallacy Naturalistic fallacy Political censorship Banned parties Political prisoner Propaganda model Religious Blasphemy law Islamic Police Suppression of dissent Systemic bias Wikipedia
By country Censorship by country Blasphemy law Freedom of speech Internet censorship In the Middle East In South Asia
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In a legal context, a chilling effect is the inhibition or discouragement of the legitimate exercise of rights by the threat of legal sanction.^[3] A chilling effect may be caused by legal actions such as the passing of a law, the decision of a court, or the threat of a lawsuit; any legal action that would cause people to hesitate to exercise a legitimate right (freedom of speech or otherwise) for fear of legal repercussions. When that fear is brought about by the threat of a libel lawsuit, it is called libel chill.^[4] A lawsuit initiated specifically for the purpose of creating a chilling effect may be called a strategic lawsuit against public participation (SLAPP). "Chilling" in this context normally implies an undesirable slowing.

In United States and Canadian law, the term chilling effects refers to the stifling effect that vague or excessively broad laws may have on legitimate speech activity.^[5]

However, the term is also now commonly used outside American legal jargon, such as the chilling effects of high prices^[6] or of corrupt police, or of "anticipated aggressive repercussions" (in say, personal relationships^[7]).

A chilling effect is an effect that reduces, suppresses, discourages, delays, or otherwise slows reporting concerns of any kind.

An example of the "chilling effect" in Canadian case law can be found in Iorfida v. MacIntyre in which a party challenged the constitutionality of a criminal law prohibiting the publication of literature depicting illicit drug use. The court found that the law had a "chilling effect" on legitimate forms of expression and could stifle political debate on issues such as the legalization of marijuana.^[8] The court noted that it did not adopt the same "chilling effect" analysis used in American law but considered the chilling effect of the law as a part of its own analysis.^[9]

Donald Trump's conflict with the media ^[10]has been described as having a chilling effect.^[11]

In the international community, chilling effects typically are used to refer to government or political censorship on democratic systems and actors, including journalists/media, academic institutions, and judicial functions.^[12]

Chilling Effects in international law cases can be separated into "regulatory chill" or "chilling expressions" issues. The first refers to when a government or nation refrains from passing legislation or exercising their authority over their political territory in order to avoid repercussions from international actors and/or foreign investors.^{[citation needed]} Threats of sanctioning or pulling out from investment, or dismantling trade deals are some of the ways regulatory chill can be achieved.

In 2011, the Australia government passed a law that required all tobacco products to be sold in plain packaging in an effort to reduce smoking by making cigarette packs less appealing. In November of that year, tobacco company Phillips Morris Asia sued Australia on the basis that the law harmed their business and broke trade agreement rules between Hong Kong and Australia (this type of lawsuit is known as investment arbitration).^[13]

At the same time, the New Zealand government was preparing to pass similar legislation but delayed it for six and a half years while waiting for the lawsuit to conclude, in fear it would also get sued by tobacco companies for similar reasoning. ^[14]

In 2015, Australia own the case when the Permanent Court of Arbitration concluded that Phillip Morris had performed an “abuse of rights” and ordered the company to assume the cost of the trial. Following this verdict, New Zealand moved forward with their own packaging legislation.^[15]

In 1999, Costa Rican journalist Mauricio Herrera-Ulloa was found guilty on four charges of defamation for a series of seven stories he published exposing a corruption scandal of Costa Rican Ambassador Felix Przedborski^[16]. In response, Przedborski filed criminal defamation and civil lawsuits against Herrera-Ulloa and La Nación, and in 1999, Herrera-Ulloa was convicted, ordered to pay damages, to publish parts of the ruling after taking down the original stories, and his name was also entered into the record of convicted felons.

In 2001, Herrera-Ulloa and La Nación’s publisher at the time,  Fernán Vargas Rohrmoser appealed to the Inter-American Commission on Human Rights which found the court violated the jorunalist's right to freedom of expression. The commission urged Costa Rica to overturn the convictions, erase the criminal record, and restore the removed online content but when the country failed to comply, the case was brought before the Inter-American Court of Human Rights (IACtHR) in 2003 and eventually overturned in 2004. ^[17]

Regarding Ömer Faruk Gergerlioğlu's case in Turkey, the Office of the United Nations High Commissioner for Human Rights (OHCHR) said that Turkey's mis-use of counter-terrorism measures can have a chilling effect on the enjoyment of fundamental freedoms and human rights.^[18]

In 1644 John Milton expressed the chilling effect of censorship in Areopagitica:

For to distrust the judgement and the honesty of one who hath but a common repute in learning and never yet offended, as not to count him fit to print his mind without a tutor or examiner, lest he should drop a schism or something of corruption, is the greatest displeasure and indignity to a free and knowing spirit that can be put upon him.^[19]

The term chilling effect has been in use in the United States since as early as 1950.^[20] The United States Supreme Court first refers to the "chilling effect" in the context of the United States Constitution in Wieman v. Updegraff in 1952.^[21]

It, however, became further used as a legal term when William J. Brennan, a justice of the United States Supreme Court, used it in a judicial decision (Lamont v. Postmaster General) which overturned a law requiring a postal patron receiving "communist political propaganda"^[22] to specifically authorize the delivery.^[23]

The Lamont case, however, did not center around a law that explicitly stifles free speech. The "chilling effect" referred to at the time was a "deterrent effect" on freedom of expression—even when there is no law explicitly prohibiting it. However, in general, the term "chilling effect" is also used in reference to laws or actions that may not explicitly prohibit legitimate speech, but rather impose undue burden on speech.^[24]

Edward Snowden disclosed in 2013 that the US government's Upstream program was collecting data on people reading Wikipedia articles. This revelation had significant impact on the self-censorship of the readers, as shown by the fact that there were substantially fewer views for articles related to terrorism and security.^[25] The court case Wikimedia Foundation v. NSA has since followed.^[26][27][28]

Although speech may be constitutionally protected from being legally sanctioned by the government, employers in the U.S., for example, are generally free to fire employees who express opinions they disagree with or find offensive.^[29] The threat of the loss of employment as a consequence of expressing an opinion can have a chilling effect on speech, even on speech that occurs outside the workplace.^[30][31]

• Censorship
• Culture of fear
• Cancel culture
• Democratic backsliding
• Fear mongering
• Judicial misconduct
• Lawfare
• Malicious prosecution
• Media transparency
• Opinion corridor
• Paper terrorism
• Political prisoner
• Prior restraint
• Self-censorship
• Strategic lawsuit against public participation
• Vexatious litigation

• Bedi, Suneal. "The Myth of the Chilling Effect." Harvard Journal of Law and Technology, vol. 35, no. 1 (Fall 2021), pp. 267-307.
• Cato Policy Analysis No. 270 Chilling The Internet? Lessons from FCC Regulation of Radio Broadcasting
• Libel Reform Campaign Archived March 2, 2021, at the Wayback Machine The Chilling Effect of English libel law
• Penney, Jonathon W. "Understanding Chilling Effects." Minnesota Law Review, vol. 106, no. 3 (2022), pp. 1451-1530.

• Lumen, containing many current examples of alleged chilling effects
• Terms associated with libel cases