Fear, Risk and the First Amendment Unraveling the Chilling….pdfVIP

College of William Mary Law School William Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 1978 Fear, Risk and the First Amendment : Unraveling the Chilling Effect Frederick Schauer Repository Citation Schauer, Frederick, Fear, Risk and the First Amendment : Unraveling the Chilling Effect (1978). Faculty P ublications. Paper 879. /facpubs/879 Copyright c 1978 by the authors. This article is brought to you by the William Mary Law School Scholarship Repository. /facpubs 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