August 8, 2012 chilling effect
(legalese | “prior restraint,” “restriction,” “constraint,” “threat”)
The knowledgeable among you will cry that this expression was commonplace by 1980, and I concede the point. It was widely used, but mostly within a narrow legal context having to do with civil rights enjoyed by individuals and institutions. A “chilling effect” was a threat to fundamental freedoms caused by intrusive government action, most often due to overzealous law enforcement. (But in some cases court decisions may be said to have a “chilling effect” on the police.) It might affect an abstraction, like dissent or the exercise of a particular right, or it might affect actual people, like reporters or abortion providers. In November 1984, no less a defender of press freedom than Nat Hentoff used the phrase reluctantly on the grounds that it was already a cliché, but still within that same narrow context. The phrase used this way lies close to the very old concept of “prior restraint” — the ability of the government to prevent the press from publishing disagreeable material, rather than prosecuting a news outlet after publication — although it has a wider application.
And now? Chilling effects are everywhere. The phrase is still used in its old sense, but it ranges far beyond. Publisher Barry Diller’s announcement that Newsweek would “go digital” in the future had a “chilling effect” on advertising — not on advertisers’ freedom of expression but their willingness to pay Newsweek to print their copy. A writer in Slate dismisses on-line literary culture (August 4, 2012) as “an environment where writers are vaunted for their personal biographies or their online followings rather than for their work on the page” which has produced a “chilling effect.” My current favorite involves the “Renewable Fuel Standard” applied to biofuels; according to one author, “undermining the RFS will have a chilling effect on the development of cellulosic feedstocks that are not used for food or feed.” In this year’s political campaign, the term comes up with numbing regularity in discussions of economic policy, as in a “chilling effect” on hiring or job creation. We have come a long way from the language of rights and how far the government may go in suppressing them.
I hoped to trace this expression back to a single jurist, but LexisNexis is inconclusive on that score. My legal antennae are not very good, but searches of federal and state cases suggest that this term was used rarely if at all before 1960. A noticeable increase in uses in the 1960’s was followed by a veritable explosion in the 1970’s, which evidently gave the phrase a powerful boost into everyday language. Two Supreme Court justices, William O. Douglas and William Brennan, both noted for their defenses of liberty against government encroachment, seem to have used the expression most, although it turned up in a few decisions by others as well. Most of the early examples of the phrase come from Supreme Court decisions — not surprisingly, legal language, like the law itself, depends on precedents set by higher courts. It would be satisfying to find a definitive first use of this expression, but my limited investigations have failed.