Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, October 25, 2021

Penney on Understanding Chilling Effects @jon_penney @MinnesotaLawRev

Jon Penney, Citizen Lab, University of Toronto; Harvard University, Berkman Klein Center for Internet & Society; Osgoode Hall Law School, is publishing Understanding Chilling Effects in volume 106 of the Minnesota Law Review. Here is the abstract.

With digital surveillance and censorship on the rise, the amount of data available online unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence (AI), machine learning, and facial recognition technology (FRT) for surveillance and data analytics, concerns about “chilling effects”, that is, the capacity for these activities “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 point. 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, empirically weak, cannot predict or explain chilling effects in a range of different contexts, and neglect its productive dimensions—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 public or private sector 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.

Download the article from SSRN at the link.

https://lawprofessors.typepad.com/media_law_prof_blog/2021/10/penney-on-understanding-chilling-effects-jon_penney-minnesotalawrev.html

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