What happens when the government merely suggests you could be in trouble? “Excuse me sir, I’m with the government and we’ve heard some suggestions, seen some social media, questioned some motives, had a few complaints ... we’d just like to talk with you a bit.” Chilling.
Have you ever had one of those electric fences where a wire is buried in a perimeter around the yard? It is designed so that a dog wears a collar that shocks him if he crosses over the invisible barrier. It doesn’t take long for the dog to figure it out. I used to go jogging through my neighborhood near one of those yards. A large dog charged at me one day but came to a screeching halt three feet from the curb. I noticed it had a little box on its collar. Yep, an invisible fence. After that I ran by with impunity.
The funny thing is that the fence can be a deterrent even when the power goes off. The dog’s behavior is modified by the mere possibility of the shock. It has a “chilling effect” on canine behavior.
The concept works on people as well. No, I’m not advocating for people to wear shock collars. But have you ever changed what you were going to do because of the mere possibility of negative consequences? It’s that chilling effect.
Deterrents exist in life. Some are self-imposed, others are legal, ethical, or simply part of workplace requirements. Where it becomes a problem is when the government takes certain actions with the sole intent of shutting down constitutional freedoms, especially related to speech.
Freedom of speech is sacred in this country. There is a reason it is enshrined in the very First Amendment. Generally speaking, the U.S. Supreme Court does not take kindly to governmental attempts that create what the nation’s courts refer to as a “chilling effect” on free speech.
In essence, some government actions may not be truly enforceable, but the mere fact that those actions were threatened has a “chilling effect” on citizens speaking out due to fear over potential consequences. Sort of like the dog with the special collar.
The Supreme Court espoused the “chilling effect doctrine” in several McCarthy era opinions. Those opinions were further advanced during the ’60s. In Baggett v. Bullitt (1964), the Court struck down loyalty oaths required of Washington state employees, asserting that “the threat of sanctions may deter . . . almost as potently as the actual application of sanctions.”
In Lamont v. Postmaster General (1965), the Court struck down a postal regulation requiring individuals who wished to receive Communist literature to first sign up at the post office. I’m not for communism at all, but I recognize that freedom of assembly, association, and speech are protected, and so did the court. Although no sanctions were levied in Lamont, the Court said the regulation would chill individuals who wanted the material but were afraid to make their wishes known to the government.
The chilling effect doctrine came into its own in Dombrowski v. Pfister (1965), a case involving the Louisiana Subversive Activities and Communist Front Control Law and Communist Propaganda Control Law by which the State of Louisiana required civil rights groups to register as Communist-front organizations. The Court ruled that not only was the Louisiana law unconstitutional, but that the federal courts could enjoin the state from ever trying to enforce it.
The bottom line is that when government even intimates it will take certain actions to “promote good order” or “create an adequate database,” it’s as if you are the dog wearing the shock collar. You don’t know if the power is on, but you can be rendered afraid to even try. But unlike the dog, Americans are protected from such abuse.
There are legal limitations on speech. One cannot attempt to incite violence or issue threats of harm. You can’t yell “fire!” in a crowded theater. When I worked with a security clearance I couldn’t divulge classified information, and certain aspects of society, such as the military, have restrictions on what they can say politically.
But not John and Jane Citizen. Generally speaking, the government has no acceptable right to chill the rights of citizens to voice their opinions.
Attorney General Merrick Garland supposedly knows this. Yet not long ago, Garland, a former judge nominated by Barack Obama for the Supreme Court, issued a memorandum indicating that he was directing the DOJ and FBI to review the National Association of School Boards’ concerns about parents speaking against Board members. No specifics, mind you. Just steps to address concerns about so-called “domestic terrorism.” Just a bit of a chilling effect, don’t you think?
Garland merely let it be known that he was looking into it all, and by doing so, he became the poster child for governmental chilling effects on the free speech of average folks who are fed up with liberal social activism in their local schools. This is precisely the kind of McCarthyism that the Supreme Court considered when it generated the “chilling effect doctrine.”
When the day comes that we no longer have the right to speak on behalf of our children’s education and welfare, then we have ceased to be a free nation.
We cannot become the dog that fears the mere possibility of the shock even when the power is off. Know your rights.