The chilling effect describes the deterrence of protected expression that results not from a direct prohibition but from the burdens, vagueness or anticipated consequences of a rule. In the episodes of The Bob Zadek Show excerpted here, the concept appears in three settings: a First Amendment challenge to a California labor statute, the mid-twentieth-century enforcement of the FCC’s Fairness Doctrine, and the government purchase of commercially available geolocation data.
Vagueness and the California Union Law
In a July 2020 episode, attorney Terry Pell described a federal First Amendment suit filed in February against the Public Employment Relations Board, the state agency charged by law with enforcing a statute referred to as 3550. Pell said the theory of the lawsuit is that 3550 is so vague and difficult to apply in practice that it creates a chilling effect on speech protected by the First Amendment California’s New Union Gag Order Violates 1st Amendment (2020). In his account, the speech of an elected representative involved in political debate on important public policy issues deserves the highest level of First Amendment protection, and traditionally that is how courts have looked at the speech of elected officials. He stated that an elected official cannot be hindered from expressing one point of view under the First Amendment.
Pell recounted the procedural history: about a month after the suit was filed, five unions moved to intervene, and the judge agreed; about three weeks after that, the California Attorney General moved to intervene. The case, originally between the plaintiffs and PERB, now involved the Attorney General and five unions as additional parties. Pell said the state’s decision to intervene indicated disagreement among state agencies about who was best able to defend the law, and that this confusion supported the plaintiffs’ view that 3550 is inherently vague. He noted that the judge had before her a motion for a preliminary injunction and the defendants’ motion to dismiss, and that after those motions were decided the case would proceed to discovery and likely trial in 2021.
Bob Zadek framed the discussion by asking whether a hypothetical school board member could even tell a constituent about 3550 and what it does, or whether he is denied even to mention those four numbers in sequence. That framing is Bob’s; Pell’s contribution is the account of the suit and its theory.
The Fairness Doctrine as Economic Pressure
In a February 2021 episode, historian Paul Matzko explained the Fairness Doctrine: if a radio station allowed editorializing—opinion on the facts, not just reporting—the FCC required it to represent both major points of view. Matzko said the rule hinged on citizen complaints, which were taken into account when a station’s license came up for renewal, usually every two years, and that a complaint could mean a station might not get its license renewed, which he called the kiss of death for a radio station The Radio Right and The Fairness Doctrine (2021).
Matzko described how the Kennedy administration created a front organization called the Citizens Committee for a Nuclear Test Ban, funded by and created in the Oval Office, to file complaints against stations allowing attacks on the nuclear test ban treaty. He said the plan was brilliantly underhanded. Asked by Bob Zadek about the economic effect on small stations, Matzko described an additional rule, the Cullman Doctrine, requiring that a station air a response for free when someone said it had not represented their point of view. The result, he said, was that a station got paid once but had to give away two airtime slots, so controversial content did not pay. Small stations running on shoestring budgets began avoiding controversial content, left-wing and right-wing alike, and Matzko said this had a huge chilling effect.
Matzko cited an internal document from a Democratic National Committee-sponsored operative team using the Fairness Doctrine to support Lyndon Johnson’s campaign and hurt Barry Goldwater’s campaign. After the 1964 election, the team reported to the DNC chair that the effort had extracted thousands of hours of free pro-Johnson airtime and significantly diminished the ability of right-wing hosts to find stations willing to air them. By the end of the decade, Matzko said, right-wing radio was a shell of itself, with major broadcasters having lost a majority of their radio stations willing to air them.
Government Purchase of Data
In a June 2021 episode, Liza Goitein of the Brennan Center discussed government purchase of geolocation data. She described the information as a comprehensive record of everywhere a person has been, day in and day out, stretching back months, potentially years—a historical and ongoing record of precise whereabouts that can reveal some of the most sensitive possible information about a person New Tests for the Fourth Amendment (2021). In her view, the government should need a warrant to collect it and should not be able to buy its way around that requirement. She distinguished data voluntarily posted to social media from location information that a person does not deliberately make public.
Bob Zadek raised cancel culture as a parallel, arguing that private misuse of publicly available data has the same chilling effect, and that if a college student planning a life in public life thinks twice about what to post for fear it will come back to haunt him, that is a chilling effect. Goitein separated the issues: people who engage in cancel culture are not the buyers of massive cell phone location databases, which are sold to wealthy buyers with the technology to run algorithms. She said she did not think private marketers’ access to the data causes a chilling effect, though she called it very problematic and said there should be stronger legal protections against sales or disclosures to private entities. She distinguished private-sector harms from government ones on the ground that the government has coercive powers—the power to put a person in jail, and, she said, even to launch a drone strike against an American citizen overseas—and the incentive and ability to target, harass or persecute someone based on ideology in a way the private sector, which is trying to make money, does not.
Goitein described pending legislation called the Fourth Amendment Is Not For Sale Act, which would prohibit law enforcement and intelligence agencies—not public health or education agencies—from purchasing or exchanging anything of value for geolocation information, communications content, and other data that telephone companies are currently not allowed to sell to the government. She said the bill allows public health and other agencies to collect the data but prohibits them from sharing it with law enforcement and intelligence agencies. Asked where it falls short, she said it does not prohibit voluntary disclosures without payment, and that companies might give information gratis to curry favor for contracts or avoid regulation. She argued that disclosure of such personal data under any circumstances should require a court order and legal process.
Across episodes
The three episodes treat the chilling effect in different legal settings rather than developing a single argument over time. Pell applies it to vagueness in a state labor statute and the speech of elected officials; Matzko applies it to the economic disincentives the Fairness Doctrine and Cullman Doctrine created for small radio stations; Goitein applies it to government collection of geolocation data and questions whether private-sector data use produces the same effect. The excerpts show no shared question argued across the episodes and no development from an earlier to a later treatment; each guest supplies the framework for his or her own subject.
What the sources do not cover
The excerpts do not state the full text or scope of the California statute beyond its number, nor the outcome of the motions pending before the judge. They do not give the date the Fairness Doctrine was adopted or repealed, or the fate of the Citizens Committee for a Nuclear Test Ban. They do not state the text, sponsors’ full names, or legislative status of the Fourth Amendment Is Not For Sale Act beyond what Goitein describes, and they do not report any court holding on the purchase of geolocation data.