Leslie Kendrick (University of Virginia School of Law) has posted Speech, Intent and the Chilling Effect (William & Mary Law Review, Vol. 54, 2013) on SSRN. Here is the 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.