Speech, Intent and the Chilling Effect

59 Pages Posted: 27 Jun 2012  

Leslie Kendrick

University of Virginia School of Law

Date Written: June 27, 2012

Abstract

In First Amendment doctrine, the “chilling effect” is often invoked as an objection to an otherwise legitimate rule that has the incidental effect of over-deterring protected speech. Although applications of the chilling effect are pervasive in cases involving the freedom of speech, they have received surprisingly little attention.

This Article focuses specifically on the use of chilling effect arguments to explain the role of speaker’s intent in protecting free speech. Speaker intent requirements, such as the “actual malice” standard for defamation, are common features of First Amendment law, and the chilling effect has been the primary doctrinal and normative explanation for their presence. This Article argues that the chilling effect is an unsatisfactory justification for such requirements. Moreover, the failure of the chilling effect to account for important aspects of free speech doctrine ought to raise more general concerns about the use of deterrence-based arguments in constitutional law.

Keywords: First Amendment, chilling effect, breathing space, intent

Suggested Citation

Kendrick, Leslie, Speech, Intent and the Chilling Effect (June 27, 2012). William & Mary Law Review, Vol. 54, 2013; Virginia Public Law and Legal Theory Research Paper No. 2012-37. Available at SSRN: https://ssrn.com/abstract=2094443

Leslie Kendrick (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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