A “chilling effect” is a situation in which rights are restricted, often because of indirect political pressure or overbroad legislation. Chilling effect is usually used to refer to free speech restrictions.
The term, and in fact the doctrine, first became widespread in the middle of the 20th century. That’s when the courts were asked to respond to McCarthy era laws aimed at monitoring communist sympathizers. In a series of landmark cases in the 1960s, the Supreme Court ruled that even when they don’t explicitly infringe on speech, laws can effectively restrict speech through intimidation.
Today, we mainly use “chilling effect” to talk about the subtle ways that politics, money, and power can impact free speech. The phrase is in frequent use by people on all points of the political spectrum. It doesn’t always refer to free speech; a “chilling effect” can also deter people from taking unpopular political positions, or from carrying out certain actions.
In 2016, for example, a prominent critic of the Clintons argued that President Obama should not have endorsed Hillary Clinton for president. Peter Schweizer, the author of “Clinton Cash,” said that the endorsement was likely going to deter the FBI from investigating Hillary Clinton’s email setup.
“The timing is horrible,” he said of Obama’s endorsement. “The optics are horrible. And you’re not going to convince me, I don’t think anybody’s going to convince me, that this is not going to have some sort of chilling effect on the FBI.”
A few years later, Democratic lawmakers expressed concern that President Trump had allegedly silenced a whistleblower. The whistleblower in question claimed that he had information about Trump’s conversation with the Ukrainian leader, in which Trump allegedly asked for an investigation of then-vice president Joe Biden’s son.
However, as the Washington Post reported, Democrats weren’t just concerned about the whistleblower in that case. They were concerned, they said, about the knock-on effect this might have on future whistleblowers. “The President’s brazen effort to intimidate this whistleblower risks a chilling effect on future whistleblowers, with grave consequences for our democracy and national security,” said Adam Schiff, Elijah Cummings, Jerrold Nadler and Eliot L. Engel.
Around the same time, former FBI agents told CNN that they were concerned about a possible chilling effect within the FBI as a result of comments from President Trump and Attorney General William Barr. The former FBI agents said that Barr’s “harsh” rhetoric was likely to stop current agents from “sticking their necks out” and undertaking other politically risky investigations.
“These comments will have a chilling effect on the workforce,” said one recently retired agent who has handled surveillance warrants under the Foreign Intelligence Surveillance Act, the kind abused according to the inspector general report.
Of course, the term “chilling effect” isn’t always about politicians and their actions. Sometimes, the phrase is used to describe a broader culture that discourages free speech. In 2016, for example, Conor Friedersdorf published an article in the Atlantic arguing that college campuses were becoming so obsessed with “political correctness” that they were dampening free speech.