https://minnesotalawreview.org/article/understanding-chilling-effects/ Skip to content Minnesota Law Review Minnesota Law Review Menu * Print + Current Issue + MLR Archive + Subscriptions * Headnotes + Current Issue + Headnotes Archive + Headnotes Submissions * Blog * Podcast * Symposium + Symposia Archive * About Us + Membership + Mastheads + Alumni * Submissions [ ] Understanding Chilling Effects April 25, 2022 By Jonathon W. Penney. Full Text. With digital surveillance and censorship on the rise, the amount of data available unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence and facial recognition technology for surveillance and data analytics, concerns about "chilling effects," that is, the capacity for these activities to "chill" or deter people from exercising their rights and freedoms, have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work points. This has left significant gaps in understanding. This Article has attempted to fill that void, synthesizing theoretical and empirical insights from law, privacy, and a range of social science fields toward a more comprehensive and unified understanding. I argue that conventional theories, based on fear of legal or privacy harm, are narrow, are empirically weak, cannot predict or explain chilling effects in a range of different contexts, and neglect the productive dimensions of chilling effects--how chilling effects shape behavior. Drawing extensively on social science literature, I argue that chilling effects are best understood as a form of social conformity. Chilling effects arise out of contexts of ambiguity and uncertainty--like the ambiguity of a vague law or surveillance--but have deeper psychological foundations as well. In moments of situational uncertainty, people conform to and comply with the relevant social norm in that context. Sometimes this means self-censorship, but most often it means more socially conforming speech or conduct. A theory of chilling effects as social conformity has important normative, theoretical, and empirical advantages, including greater explanatory and predictive power, clarifying what chilling effects theory is for and what it produces, as well as providing a basis to navigate competing and differing chilling effect claims. It also has implications, I argue, for constitutional standing as well as the First Amendment chilling effects doctrine. Tweet Share Recent De Novo Blog Posts * STEALING FROM YOUR STUDENTS: THE HIDDEN KEY IN THE HIGHER EDUCATION ACT TO HOLD LEADERS OF FOR-PROFIT COLLEGES PERSONALLY LIABLE FOR FRAUD * MEANINGFUL BUT NOT PERFECT REVIEW: IMPLIED PRECLUSION OF FEDERAL JURISDICTION AND AXON ENTERPRISE, INC. V. FTC * COPPER-NICKEL MINING AND THE MINNESOTA DEPARTMENT OF NATURAL RESOURCES' DUAL MANDATE: HOW TO ENSURE ENVIRONMENTAL CONSEQUENCES IN THE INDUSTRY CAN BE ALLEVIATED * SCOTUS TAKES ON WOTUS: PREVIEWING SACKETT V. EPA AND ITS CONSEQUENCES FOR THE CLEAN WATER ACT * A $9 BILLION SURPLUS, YET "KIDS CAN'T READ": MINNESOTA TEACHER STRIKES MAY VIOLATE STUDENTS' RIGHTS UNDER THE STATE CONSTITUTION AND THE LEGISLATURE HAS A DUTY TO FIX IT Minnesota Law Review 229 19th Ave. South Minneapolis, MN 55455 Tel: (612) 625-9330 Fax: (612) 624-5400 mnlawrev@umn.edu Home | Contact Publishing Services | My Account Privacy | Acceptable Use of IT Resources The copyright of these individual works published by the University of Minnesota Libraries Publishing remains with the original creator or editorial team. For uses beyond those covered by law or the Creative Commons license, permission to reuse should be sought directly from the copyright owner listed in the About pages.