Chilling effect (law)
||The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. (March 2013)|
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In a legal context, a chilling effect is the inhibition or discouragement of the legitimate exercise of a constitutional right by the threat of legal sanction. The right that is most often described as being suppressed by a chilling effect is the right to free speech. 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. A lawsuit initiated specifically for the purpose of creating a chilling effect may be called a Strategic Lawsuit Against Public Participation, or "SLAPP" suit.
An example of the "chilling effect" in Canadian case law can be found in Iorfida v. MacIntyre where the constitutionality of a criminal law prohibiting the publication of literature depicting illicit drug use was challenged. 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. 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.
Recognition that a law may allow for a chilling effect as a vehicle for political libel or vexatious litigation provides motivation to change such defamation laws, and therefore prevent censorship and the suppression of free speech.
The term chilling effect had been in use in the United States since as early as 1950. 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.
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" to specifically authorize the delivery.
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, "chilling effect" is now often used in reference to laws or actions that do not explicitly prohibit legitimate speech, but that impose undue burdens.[not in citation given]
- Culture of fear
- Fear mongering
- Franchise fraud
- Media transparency
- Prior restraint
- Strategic lawsuit against public participation
- Simon Singh, British author sued by chiropractors in a case widely cited as an example of a chilling effect.
- chilling effect. (n.d.). Retrieved October 19th, 2011, from http://law.yourdictionary.com/chilling-effect
- Green, A. (2009, October 15). Banish the libel chill. The Guardian. Retrieved from http://www.guardian.co.uk/commentisfree/libertycentral/2009/oct/15/simon-singh-libel-laws-chiropractic
- Iorfida v. MacIntyre, 1994 CanLII 7341 (ON SC)at para. 20, <http://canlii.ca/s/wwhi> retrieved on 2011-10-25
- Iorfida v. MacIntyre, 1994 CanLII 7341 (ON SC) at para. 37, <http://canlii.ca/s/wwhi> retrieved on 2011-10-25
- Freund, Paul A. "4 Vanderbilt Law Review 533, at 539 (1950–1951): The Supreme Court and Civil Liberties".
- "The Chilling Effect in Constitutional Law". Columbia Law Review 69 (5): 808–842. May, 1969. JSTOR 1121147.
- Safire, William (2005-07-20). "Safire Urges Federal Journalist Shield Law". Center For Individual Freedom. Retrieved 2008-06-18. "Justice Brennan reported having written a 1965 decision striking down a state’s intrusion on civil liberty because of its “chilling effect upon the exercise of First Amendment rights...”"
- "LAMONT V. POSTMASTER GENERAL, 381 U. S. 301 (1965)". Justia. Retrieved 2008-06-18.
- Chilling Effects Clearinghouse, containing many current examples of alleged chilling effects
- Terms associated with libel cases
- Cato Policy Analysis No. 270 Chilling The Internet? Lessons from FCC Regulation of Radio Broadcasting
- Libel Reform Campaign The Chilling Effect of English libel law