The Chilling Effect

The Chilling Effect

The Supreme Court has ruled that authorities need not directly prohibit specific speech in order to have a chilling effect on the freedom of expression in violation of the First Amendment.

By David Todd McCarty | Friday, July 31, 2020

“Congress shall make no law…”

“Read aloud, this opening phrase of what would become the First Amendment to the newly ratified Constitution of the United States has almost a ring of harshness in the admonition to officials of the new government,” wrote John Seigenthaler (1927-2014), founder of the First Amendment Center. “Hands off, the amendment says. Hands off religion! Hands off dissent! Let the people speak out. Let them publish critically about their elected officials, and petition to right whatever wrongs they perceive done them. Let them assemble peaceably to protest injustice. That was the message the members of the First Congress sent in 1789 as they drafted that amendment and the others that would make up the Bill of Rights.”

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

First Amendment to the United States Constitution

America has seen more political activism, protests in the streets and calls for change than at any time in recent memory since the civil rights era of the 1960’s. When you have public, political dissent against an administration with a tendency towards authoritarian responses, there is an inevitable retaliation against protestors and those willing speak out against what they see as injustice. When this happens, there will naturally be questions of what constitutes free speech and what is merely disturbing the peace.

The First Amendment protects the freedoms of speech, press, assembly and the right to petition the government and seek redress of grievances and proclaims that citizens have the right to call the government to account. Freedom of speech and press allows citizens to communicate their ideas verbally and in writing, while freedom of assembly lets them publicly express a common interest. The right to petition allows citizens to point out to the government where it did not follow the law, to seek changes, as well as damages for such missteps.

Any officer, official, representative or person operating in a position of authority representing the government must refrain from infringing on those rights. It doesn’t matter whether you are a public health inspector, the chief of police or the school superintendent. If you hold power over another, either because they work directly for you, or because of what you can offer or withhold, then you cannot be in a position to restrict their Constitutional rights, whether directly or indirectly, by cause, action or policy. 

Dr. Benjamin Spock and Rev. Martin Luther King (center) protest against the Vietnam War along Central Park West. 1967. (Photo by Frank Hurley/NY Daily News Archive via Getty Images)
Liberation March. Wildwood, NJ. July 2020. Photo: David Todd McCarty
Angela Davis, 1974
Organizers Cassandra Gatelein and Crystal Hutchinson. July 2020. Photo: David Todd McCarty

“If a public school teacher expresses himself or herself off of school grounds, about a matter of public interest, that speech is almost certainly protected by the First Amendment,” says Ken Paulson, Director of the Free Speech Center, Middle Tennessee State University. “A school administration can only take action if that outside speech directly affects the educational process. It’s not enough that the speech might be unpopular with parents or other members of the public.”

The chilling effect is the concept of deterring free speech and association rights protected by the First Amendment as a result of government laws or actions that target free expression. It is closely tied to the overbreadth doctrine, which prohibits the government from casting too wide a net when regulating activities related to speech and expression. A regulation of speech is unconstitutionally overbroad if it regulates a substantial amount of constitutionally protected expression. Overbreadth is closely related to its constitutional cousin, vagueness. A regulation of speech is unconstitutionally vague if a reasonable person cannot distinguish between permissible and impermissible speech because of the difficulty encountered in assigning meaning to language.

During the McCarthy-era, the Supreme Court developed and explained the doctrine of the chilling effect on free speech in a series of decisions involving legislation, policies and regulations aimed at suspected so-called subversives. 

“If a public school teacher expresses himself or herself off of school grounds, about a matter of public interest, that speech is almost certainly protected by the First Amendment.”

Ken Paulson, Director of the Free Speech Center, Middle Tennessee State University

In Baggett v. Bullitt (1964), the Court struck down the idea of loyalty oaths requiring state employees to affirm that they were not members of alleged subversive organizations and requiring teachers to swear to promote “undivided allegiance to the government of the United States.”

In ruling that these provisions violated the First Amendment rights of employees, who would be unable to determine what they were swearing to, the Court asserted that “the threat of sanctions may deter . . . almost as potently as the actual application of sanctions.”

In Lamont v. Postmaster General (1965), the Court struck down a postal regulation requiring individuals who wished to receive communist literature to sign up at the post office. Although the program included no sanctions against recipients, the Court said it would chill individuals who wanted the material but were afraid to make their wishes known to the government.

The chilling effect of such governmental requirements was exacerbated by widespread knowledge that under the guidance of Director J. Edgar Hoover the FBI had gathered dossiers recording the political beliefs and associations of millions of Americans suspected of “un-American” views and activities.

The chilling effect doctrine reached its peak in Dombrowski v. Pfister (1965), a case involving the Louisiana Subversive Activities and Communist Control Law and Communist Propaganda Control Law, which the state was using to require civil rights groups to register as communist-front organizations. The Court ruled that not only was the Louisiana law unconstitutional, but that the federal courts could enjoin the state of Louisiana from bringing prosecutions under it.

At least three motives drive the government’s impulse to fashion overbroad regulations:

  • First, officials may employ overbroad regulations to suppress a broad range of criticisms directed against those in power.
  • Second, officials may selectively enforce broad regulations to protect or suppress communicative content as they choose.
  • Third, governments may adopt broad regulations to avoid judicial determinations of content or viewpoint discrimination.

The freedom of association — unlike the rights of religion, speech, press, assembly, and petition — is a right not listed in the First Amendment but recognized by the courts as a fundamental right.    

First Amendment protects two types of associative freedom. There are two types of freedom of association: the right to expressive association and the right to intimate association.

The right to expressive association refers to the right of people to associate together for expressive purposes – often for political purposes. The U.S. Supreme Court recognized this right in NAACP v. Alabama (1958), reasoning that individual members of the civil rights group had a right to associate together free from undue state interference. 

Photo: U of SC Center for Civil Rights History and Research
Wildwood police officer at the Liberation March. Wildwood, NJ. July 2020. Photo: David Todd McCarty

In that case, the state of Alabama sought to require the NAACP to disclose its membership list. In his majority opinion, Justice John Marshall Harlan II wrote: “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” 

This case and others caused leading First Amendment scholar Thomas I. Emerson to write that “freedom of association in the United States has assumed increasing significance as modern society has developed, and problems of associational rights have given rise to new and perplexing constitutional issues.”

You do not leave your political ideology or moral convictions at the door of your workplace, any more than you leave your religion or cultural tradition behind when you take a job. Free speech in the workplace is not absolute and the Courts have confirmed that employers have a right to conduct business in a way they see fit.

“Liberty is to faction –[political parties or movements] what air is to fire, an aliment without which it instantly expires,” said James Madison, the principal framer of the Constitution. “But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.”

One thing has remained true over time, is that what you do on your own time, as long as it does not interfere with your ability to perform the duties for which you were hired, and does not unduly reflect poorly on your employer, is protected by the First Amendment. Merely disagreeing with your opinion, political stance, or party of choice if not sufficient cause to seek retribution or to withdraw the offer of employment.

We hold these things to be truths, they are not always all that self-evident.

Follow David Todd McCarty on Twitter @davidtmccarty and The Standard @capemaystandard

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