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Chilling Effects and Unequal Subjects: A Response to Jonathon Penney’s Understanding Chilling Effects

By Karen Levy. Full Text.

The mark of a strong theoretical argument is that it opens our minds to new empirical questions. In his generative article Understanding Chilling Effects, Jonathon Penney provides a persuasive and nuanced argument for interpreting chilling effects through the lens of social conformity, rather than self-censorship of lawful conduct. Penney’s own previous scholarship has provided us with crucial empirical knowledge about how chilling effects function in society. And his current work fruitfully marries legal theory with social theory, giving us a clearer account of how law and social life mutually shape one another.

This conceptual move by Penney opens the door to a richer understanding of how chilling effects operate in the social world. Rather than merely a dynamic that accounts for the absence of activity, Penney’s account draws our attention to how chilling effects create and shape socially compliant behaviors. In this view, the conventional understanding of chilling effects as acts of self-censorship—as creating voids where lawful expression, association, and activity used to be—is both incomplete (in that it fails to account for what activity does arise in the presence of chill) and less interesting than it might be (in that the emergence of socially conforming behavior has important consequences that are left out of scope).

Penney argues that the integration of social and psychological perspectives into the chilling effects discourse can better illuminate the “relationship [between chilling effects and] existing social, economic, and political structures, power, and hierarchies.” Here, I take up Penney’s suggestion and ask: what do we know (and what do we want to know) about the relationship between chilling effects and social inequality? How might we expect chilling effects to manifest differently based on the subject position of the person being chilled? And what are the effects of chilling effects—that is, how do they actually manifest in people’s lives?

Many accounts of social and psychological influence, including some renditions of chilling effects theory, contemplate a relatively flat subject—they make assertions or predictions about how “people” are impacted in the abstract, but stop short of asking who is likely to be impacted and to what ends. In what follows, I explore the implications of Penney’s theory for people with different resources available to them. First, drawing from empirical accounts of how vulnerable groups respond to generalized surveillance anxiety, I ask how Penney’s theory might lead us to ask new questions about resistance. Second, reflecting on sociological research on markedness, I observe that social conformity is not equally available as an avenue for action for all people. Finally, I consider an implication of Penney’s reading of chilling effects on collective action and intentional norm formation.