What is a Chilling Effect?

The term “chilling effect” is used in nations that have freedom of speech laws, such as the United States. It refers to an attempt by a company or individual to silence a critic by filing lawsuits, threatening legal action or otherwise trying to intimidate the critic by legal means. Although protected by freedom-of-speech law, the critic may be silenced by the prospect of a costly legal battle against a well-funded opponent. The chilling effect is a genuine threat to freedom of speech, even in countries with strong laws protecting such speech.

Freedom of speech is widely recognized as an important foundation of democracy. The U.S., in particular, is noted for asserting this right for its citizens. It is included in the First Amendment of the Bill of Rights, part of the U.S. Constitution, which guarantees that anyone is legally allowed to express his or her opinion, even if it is contrary to the beliefs of neighboring citizens or the nation itself. In practice, this has not always been the case, but legal cases have generally upheld this right. The American Civil Liberties Union (ACLU) is noted for defending individuals on the basis of freedom of speech, even when that speech is inflammatory or otherwise unpleasant.

The chilling effect is a potential challenge to this right, because it is technically a legal maneuver; that is, the party threatening legal action is not violating the law in a way that can be easily proved. Challenging a lawsuit on First Amendment grounds often means a legal battle in court, which compounds the problem. Unless defended pro bono — or free — by a group such as the ACLU, an individual critic often does not possess the resources to undertake a legal case against a wealthy opponent.

Sometimes a court case is not necessary to produce a chilling effect. The body in question simply has an attorney send a “cease and desist” letter threatening legal action if the critic does not immediately end the criticism. Another form of chilling effect is a strategic lawsuit against public participation (SLAPP). For example, a corporation accused of pollution by environmental activists will file a slander lawsuit against those activists.

The activists must then prove the charges of pollution are true or risk fines and punishment. Even if the charges are true, the activists may not have the funding to take on the court case and, thus, are effectively silenced. If a chilling effect can be demonstrated, however, freedom of speech laws can and often do protect such critics.