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The Conforming Effect: First Amendment Implications of Surveillance, Beyond Chilling Speech

55 Pages Posted: 17 Jan 2015 Last revised: 23 Feb 2015

Margot E. Kaminski

University of Colorado Law School; Yale University - Yale Information Society Project; Yale University - Law School; University of Colorado at Boulder - Silicon Flatirons Center for Law, Technology, and Entrepreneurship

Shane Witnov

Practicing attorney in California; University of California, Berkeley - School of Law; Practicing attorney in California

Date Written: January 1, 2015

Abstract

First Amendment jurisprudence is wary not only of direct bans on speech, but of the chilling effect. A growing number of scholars have suggested that chilling arises from more than just a threat of overbroad enforcement — surveillance has a chilling effect on both speech and intellectual inquiries. Surveillance of intellectual habits, these scholars suggest, implicates First Amendment values. However, courts and legislatures have been divided in their understanding of the extent to which surveillance chills speech and thus causes First Amendment harms.

This article brings First Amendment theory into conversation with social psychology to show that not only is there empirical support for the idea that surveillance chills speech, but surveillance has additional consequences that implicate multiple theories of the First Amendment. We call these consequences “the conforming effect.” Surveillance causes individuals to conform their behavior to perceived group norms, even when they are unaware that they are conforming. Under multiple theories of the First Amendment — the marketplace of ideas, democratic self-governance, autonomy theory, and cultural democracy — these studies suggest that surveillance’s effects on speech are broad. Courts and legislatures should keep these effects in mind.

Keywords: Law, First Amendment, surveillance, privacy, chilling effects, social psychology

Suggested Citation

Kaminski, Margot E. and Witnov, Shane, The Conforming Effect: First Amendment Implications of Surveillance, Beyond Chilling Speech (January 1, 2015). University of Richmond Law Review, Vol. 49, 2015; Ohio State Public Law Working Paper No. 288. Available at SSRN: https://ssrn.com/abstract=2550385

Margot Kaminski

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States

Yale University - Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

University of Colorado at Boulder - Silicon Flatirons Center for Law, Technology, and Entrepreneurship ( email )

Wolf Law Building
2450 Kittredge Loop Road
Boulder, CO
United States

Shane Witnov (Contact Author)

Practicing attorney in California ( email )

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

Practicing attorney in California

No Address Available

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