A First Amendment chilling effect occurs when a governmental action creates a consequence that deters an individual from exercising expressive rights. But in some cases, the chilling effect does not stem directly from the governmental action, but instead from intervening private actions. For example, the mandatory disclosure of campaign contributions may "chill" contributors, due to the potential threat of retaliatory acts by private actors, such as criticism, protests, boycotts, threats, or violence. Is there a point at which the chilling effect is attributable to that private reaction, rather than to the challenged governmental action? And should we distinguish between chilling effects resulting from illegal and legal private reactions?
I argue that the answer to both of these questions is yes. We should distinguish among three categories of chilling effects: governmental chill, illegal private chill, and legal private chill. I outline a new framework for the analysis of mandatory disclosure laws and other potential private chill scenarios.
The category of governmental chill is defined by whether the government has violated a constitutional rule as embodied in substantive doctrine. For example, the government may have engaged in invidious discrimination, it may have promulgated a vague or overbroad law, or it may have created a burden on protected rights that was not justified by countervailing state interests. Both negative-rights and positive-rights accounts of free expression provide a mandate for judicial intervention in these cases.
By contrast, in illegal and legal private chill cases, the government has not violated any constitutional rule, but a chilling effect has still arisen as a result of specific, feared private actions. Instead of a negative- or a positive-rights claim, such cases are better conceptualized as requests for accommodation-in other words, requests that the court intervene to facilitate the exercise of protected rights, even at the expense of the legal prerogatives of other private parties. Such an accommodation approach, derived from equitable models, provides a mandate for judicial intervention in private chill cases involving illegal private reactions, but not in private chill cases involving legal private reactions.
The Chilling Effect and the Problem of Private Action,
66 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol66/iss5/3