by Andrew P. Napolitano,
July 17, 2014
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“Chilling” is the word lawyers use to describe governmental behavior that does
not directly interfere with constitutionally protected freedoms, but rather
tends to deter folks from exercising them. Classic examples of “chilling” occurred
in the 1970s, when FBI agents and U.S. Army soldiers, in business suits with
badges displayed or in full uniform, showed up at anti-war rallies and proceeded
to photograph and tape record protesters. When an umbrella group of protesters
sued the government, the Supreme Court dismissed the case, ruling that the protesters
lacked standing – meaning, because they could not show that they were actually
harmed, they could not invoke the federal courts for redress.
Yet, they were harmed, and the government knew it. Years after he died, longtime
FBI boss J. Edgar Hoover was quoted boasting of the success of this program.
The harm existed in the pause or second thoughts that protesters gave to their
contemplated behavior because they knew the feds would be in their faces –
figuratively and literally. The government’s goal, and its limited success,
was to deter dissent without actually interfering with it. Even the government
recognized that physical interference with and legal prosecutions of pure speech
are prohibited by the First Amendment. Eventually, when this was exposed as
part of a huge government plot to stifle dissent, known as COINTELPRO, the government
stopped doing it.