Speech, Intent, and the Chilling Effect

Speaker's intent requirements are a common but unremarked feature of First Amendment law. From the "actual malice" standard for defamation to the specific-intent requirement for incitement, many types of expression are protected or unprotected depending on the state of mind with which they are said. To the extent that courts and commentators have considered why speaker's intent should determine First Amendment protection, they have relied upon the chilling effect. On this view, imposing strict liability for harmful speech, such as defamatory statements, would overdeter, or chill, valuable speech, such as true political information. Intent requirements are necessary prophylactically to provide "breathing space "for protected speech. This Article argues that, although the chilling effect may be a real concern, as a justification for speaker's intent requirements, it proves unsatisfactory. It cannot explain existing intent requirements, and the difficulties of measuring and remedying chilling effects cast doubt on whether they could ever provide the sole justification for the choice of one intent requirement over another. The inadequacy of the chilling effect leaves the problem of speaker's intent in need of further explanation and raises more general concerns about the use of deterrence-based arguments in constitutional law. TABLE OF CONTENTS INTRODUCTION I. INTENT AND THE CHILLING EFFECT A. Intent Requirements in First Amendment Law 1. Unprotected Categories 2. Other Examples B. The Chilling Effect Account of Speaker's Intent 1. Why Chilling Matters 2. How Chilling Works II. ROUGH JUDGMENT: THE SPECULATIVE CHILLING EFFECT A. Overinclusiveness 1. Specific-Intent Requirements 2. Low-Value Expression: Obscenity and Child Pornography B. Underinclusiveness 1. The Underinclusiveness of an Intent Requirement 2. The Case of Litigation Costs 3. The Chilling Effect and Content-Neutral Laws III. A QUESTION OF POLICY: THE EMPIRICAL CHILLING EFFECT A. Empirical Accounts of the Chilling Effect 1. Litigation Data 2. Quantitative Empirical Comparisons 3. Interviews and Surveys 4. Economic Models B. The Chilling Effect and the Limits of Empirical Inquiry IV. A QUESTION OF PRINCIPLE: BEYOND THE CHILLING EFFECT CONCLUSION INTRODUCTION Although much has been written about the role of government purpose in First Amendment analysis, (1) remarkably little has been said about speaker's intent. (2) And yet, across many areas, First Amendment law determines the protection of speech by reference to the state of mind, or intent, of the speaker. (3) Incitement, for example, is speech that intends and is likely to produce imminent lawless action. (4) The constitutional standards for defamation famously turn on the state of mind of the speaker. (5) Punishment for distributing obscenity or child pornography requires proof of recklessness or knowledge as to the factual contents of the material. (6) In these and other areas, a speaker's state of mind determines the status of his expression under the First Amendment. Despite the frequency of these intent requirements, the reasons behind them are not clear. The harm or value inherent in expression is unlikely to change with the state of mind with which it is said. Why, then, should the same statement be treated differently depending on the speaker's intent? This puzzle is rarely remarked upon, let alone analyzed. To the extent that the Supreme Court has answered the question, it has relied on the chilling effect. (7) The few commentators to address the issue have also concluded that the chilling effect is the only normatively legitimate reason for constitutional speech protection to turn on speaker's intent. (8) On the chilling effect account, the intent of the speaker has no inherent relation to the protection of the speech: speech is protected or unprotected based upon its value or harm. …