Law is carried forward on a stream of language. Metaphor not only reflects the growth of constitutional law but nourishes it as well. Since the 1960s, when the warren court widened the domain of the first amendment, Justices have frequently remarked on laws' "chilling effects" on the freedom of speech. a statute tainted by vagueness or overbreadth, for example, restricts the freedom of expression not only by directly subjecting people to the laws' sanctions but also by threatening others. Because the very existence of such a law may induce self-censorship when the reach of the law is uncertain, the law may be held invalid on its face. The assumed causal connection between vague legislation and self-censorship was made by the Supreme Court as early as herndon v. lowry (1937); half a century later, circulating the coinage of Justice felix frankfurter, lawyers and judges express similar assumptions in the language of chilling effects.
The assumption plainly makes more sense in some cases than it does in others. For a law's uncertainty actually to chill speech, the would-be speaker must be conscious of the uncertainty. Yet few of us go about our day-to-day business with the statute book in hand. A statute forbidding insulting language may be vague, but its uncertainty is unlikely to have any actual chilling effect on speech in face-to-face street encounters. Yet a court striking that law down—even in application to one whose insults fit the Supreme Court's narrow definition of fighting words—is apt to speak of the law's chilling effects.
For chilling effects that are real rather than assumed, we must look to institutional speakers—publishers, broad-casters, advertisers, political parties, groups promoting causes—who regularly inquire into the letter of the law and its interpretation by the courts. Magazine editors, for example, routinely seek legal counsel about defamation. Here the uncertainty of the law's reach does not lie in any statutory language, for the law of libel and slander is largely the product of common law judges. It was a concern for chilling effects, however, that led three concurring Justices in new york times v. sullivan (1964) to advocate an absolute rule protecting the press against damages for the libel of a public official. The majority's principle in the case, which would allow damages when a newspaper defames an official knowing that its statement is false, or in reckless disregard of its truth or falsity, may, indeed, chill the press. Even slight doubt about information may make an editor hesitate to publish it, for fear that it may turn out to be false—and that a jury years later will decide it was published recklessly. The concern is not to protect false information, but that doubtful editors will play it safe, suppressing information that is true.
Conversely, when the Justices are persuaded that the law's threat will not have the effect of chilling speech, they are disinclined to use the overbreadth doctrine. A prominent modern example is the treatment of commercial speech. Because advertising is profitable, and advertisers seem unlikely to be chilled by laws regulating advertising, such laws are not subject to challenge for overbreadth.
The worry, when a court discusses chilling effects, is that a law's uncertainty will cause potential speakers to censor themselves. Thus, an overly broad law is subject to constitutional challenge even by one whose own speech would be punishable under a law focused narrowly on speech lying outside First Amendment protection. The defendant in court stands as a surrogate for others whose speech would be constitutionally protected—but who have been afraid to speak, and thus have not been prosecuted, and cannot themselves challenge the law. Whether or not this technique amounts to a dilution of the jurisdictional requirements of standing or ripeness, it allows courts to defend against the chilling effects of unconstitutional statutes that would otherwise elude their scrutiny.
Kenneth L. Karst
Amsterdam, Anthony G. 1960 The Void-for-Vagueness Doctrine in the Supreme Court. University of Pennsylvania Law Review 109:67–116.
Note 1970 The First Amendment Overbreadth Doctrine. Harvard Law Review 83:844–927.
Schauer, Frederick 1978 Fear, Risk and the First Amendment: Unraveling the "Chilling Effect." Boston University Law Review 5:685–732.