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

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