The Myth of the Chilling Effect

Abstract

The chilling effect—historically associated with protecting First Amendment rights—has more recently become a tool used to argue against social media platform (e.g., Facebook, Twitter) policies of restricting content. The 70-year-old principle invalidates regulations if censoring the unwanted speech will also deter or “chill” related but valuable speech. Despite its longstanding use and recent significance, little to no empirical work has been done on whether this phenomenon exists. This Article finally fills this gap. It employs an empirical study using social media speech restrictions analyzed with text analysis to conclude that the chilling effect has little to no impact on the content of the message; at most, it subtly alters the specific style or tone used. This study therefore confirms the existence of the phenomenon but simultaneously raises serious concerns about its usefulness as a guiding constitutional legal principle when assessing speech regulations.