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58 B.U. L. Rev. 685 (1978)
Fear, Risk and the First Amendment: Unraveling the Chilling Effect

handle is hein.journals/bulr58 and id is 695 raw text is: FEAR, RISK AND THE FIRST AMENDMENT: UNRAVELING THE CHILLING EFFECTt FREDERICK SCHAUER* I. INTRODUCTION It has been twenty-six years since the Supreme Court introduced the word chill in a first amendment case,' and nearly sixteen years since the phrase chilling effect made its debut.2 In that time, the concept of the chilling effect has grown from an emotive argument into a major3 substantive component of first amendment adjudication. Its use accounts for some very significant advances in free speech theory, and, in fact, the chilling effect doctrine underlies the resolution of many cases in which it is neither ex- pressed nor clearly implied.4 The chilling effect concept has been recognized most frequently and articulated most clearly in decisions chiefly concerned with the procedural aspects of free speech adjudication.5 The possibility that the existence of an unconstitutional state statute might inhibit the exercise of first amendment freedoms was the primary justification for those decisions establishing a more receptive approach to affirmative federal court litigation contesting the validity of such legislation.6 Similarly, the potential deterrent effect of a vague, or more commonly, an overbroad statute, was seen as reason enough to bend traditional rules of standing-a litigant would be allowed to attack such a statute, even though his own conduct could validly be proscribed by a legislative enactment more narrowly and clearly drafted.7 The current Su- t ( 1978 by Frederick Schauer. * Associate Professor of Law, Marshall-Wythe School of Law, College of William and Mary. A.B. 1967, M.B.A. 1968, Dartmouth College; J.D. 1972, Harvard Law School. ' Such unwarranted inhibition ... has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers. Wieman v. Updegraff, 344 U.S. 183, 195 (1952) (Frankfurter, J., concurring). 2 While, of course, all legitimate organizations are the beneficiaries of these protections, they are all the more essential here, where the challenged privacy is that of persons espousing beliefs already unpopular with their neighbors and the deterrent and chill- ing effect on the free exercise of constitutionally enshrined rights of free speech, expression, and association is consequently the more immediate and substantial. Gibson v. Florida Legis. Investigation Comm., 372 U.S. 539, 556-57 (1963). See also Freed- man v. Maryland, 380 U.S. 51, 60-61 (1965); Dombrowski v. Pfister, 380 U.S. 479, 487, 494 (1965). 1 Even by 1967, Mr. Justice Harlan noted that the chilling effect doctrine had become ubiquitous. Zwickler v. Koota, 389 U.S. 241, 256 n.2 (1967) (Harlan, J., concurring). 4 See note 42 infra. 5 For a discussion and analysis of these cases, see generally Note, The Chilling Effect in Constitutional Law, 69 Colum. L. Rev. 808 (1969); Note, The First Amendment Over- breadth Doctrine, 83 Harv. L. Rev. 844 (1970). o n The leading case is, of course, Dombrowski v. Pfister, 380 U.S. 479 (1965). See, e.g., Zwickler v. Koota, 389 U.S. 241 (1967). For a general discussion of the Court's work in this area, see generally Maraist, Federal Injunctive Relief Against State Court Proceedings: The Significance of Dombrowski, 48 Tex. L. Rev. 535 (1970); Note, supra note 5, 69 Colum. L. Rev. 808. Again, Dombrowski v. Pfister, 380 U.S. 479 (1965), is the seminal case, although traces 685

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