Chilling effect

It's the Law

To punish and protect

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A chilling effect describes a situation in which rights, such as free speech, are threatened by the possible negative results of exercising these rights. The effect is to silence criticism and freedom of expression, even in cases where criticism is perfectly valid.

An example of a chilling effect can be seen in the libel law of England, in which the threat of a libel suit — a very costly process to defend against — discourages people from writing what they otherwise consider to be accurate and morally defensible work. Chilling effects are also seen in situations where people or groups have sufficient power to make it difficult for others to express their opinions.

Muhammed cartoons

The reaction to the Danish cartoons in which Muhammad was portrayed led most mainstream media to avoid reprinting the cartoons because they didn't want to offend Muslims. Comedy Central went so far as to censor the appearance of Muhammad in episodes of South Park — perhaps forgetting that the same series regularly features Jesus, and Islam frowns upon any of the prophets being depicted. Indeed orthodox Islam forbids images of any animate thing. The same effect has led to writers struggling to find publishers for books that are critical of Islam, or even just those that don't portray Muhammad and friends in the way they'd see him. The book Jewel of Medina was scheduled for publication by Random House but later cancelled for fear that the book would offend Muslims.

Libel

Making it dangerous for people to offer criticism makes it easier for bad or negative actions and ideas to persist. In the case of the Danish cartoons, the media provided preferential treatment to Muslim religious sensibilities, which is unfair to other religions and makes it difficult to discuss and debate ideas that really do need to be examined. English libel law, with its low burdens of proof for claimants and high cost of defending a case, is claimed to prevent journalists and even scientists from publishing their work for fear of being sued.

In 2008 Simon Singh, a British science writer, wrote a column in which he accused the British Chiropractic Association (BCA) of pushing bogus treatments. This was demonstrably true, given that they did indeed make physically impossible claims, yet he found himself engaged in a case that could have cost him millions to defend. The case was eventually dropped by the BCA, but not before Singh had run-up costs of an estimated £100,000, not including the personal time lost. Such sums are beyond the resources of many writers, meaning that small newspapers and independent bloggers (and wiki editors) would have to either remove their work or risk legal proceedings that could lead to financial Armageddon.

The Singh case is particularly relevant given that scientifically he was completely correct, yet the law was used in an attempt to silence him. This is a dangerous situation in which the law is being used to try to decide scientific fact.

Software patents

The practice of allowing patents for software is controversial, given that separate software products often have to use similar approaches, or protocols, to be interoperable with the products of competitors. Patents, unlike trademarks, do not have to be defended. One could allow someone to knowingly infringe a patent for many years before finally coming forward to demand payment or launch a legal case. The sheer difficulty in knowing whether or not patents are being infringed acts as a barrier against software development, and has, in the form of FUD, been used to dissuade companies from adopting open source products. The tactic is to claim that open source products (or a specific product) violates patents, yet not disclose the patents in question. Because large corporations tend to have extensive portfolios of patents it can be difficult to determine which ones are being violated, so some adopters may find it less risky to simply avoid the products.

The chilling effect here is twofold. Developers are dissuaded from contributing to open source products for fear that they may inadvertently violate a patent, and adopters are pushed to proprietary products which may themselves violate patents, but at least they may be indemnified against this risk by the publishers.

The Chicks

The Chicks in 2006

In 2003 Natalie Maines, a member of the country music group, the Chicks (formerly Dixie Chicks), commented negatively on the war in Iraq, and expressed shame that the then President, George Bush, is from Texas, the band's home state.

This resulted in moral panic among those most likely to listen to country music, and the band was subject to boycotts, people burning their Dixie Chicks music collections in a scene reminiscent of both the novel Fahrenheit 451 and The Beatles record burnings spurred by John Lennon's "more popular than Jesus" remarks, and the customary death threats. Immense public pressure forced expressions of regret, and the overall criticism seemed to be based on the notion that it was unpatriotic not to support the (Republican) president, which is dangerous in that it places the president above criticism.

Although this particular variant does not impose legal threats, the possibility of a ruined career and life would certainly discourage some from speaking out.

External links

• Lumen (formerly Chilling Effects Clearinghouse): A site that "collects and analyzes legal complaints and requests for removal of online materials, helping Internet users to know their rights and understand the law."