By Prof. Gergely Gosztonyi (PhD)
Faculty of Law, Eötvös Loránd University (ELTE), Budapest, Hungary
The chilling effect is one of the concepts that appears everywhere worldwide in debates on free speech, media law and platform governance. Yet the more frequently it is used, the less clear it often becomes. Everyone seems to know what the term is supposed to mean, but once we try to define it with any precision, the concept starts to slip.
At its most basic, the chilling effect refers to situations in which people refrain from lawful expression because they fear negative consequences. Those consequences may be legal sanctions, surveillance, institutional retaliation, or even informal social punishment (Penney, 2025). In that sense, the idea is intuitively compelling. But analytically, it is much less stable than it first appears. What exactly is being measured: the legal restriction itself, the individual’s perception of risk, or a broader social climate?
This is where we come to the difficult, but also interesting part. The chilling effect stays uncomfortably between law and psychology. Lawyers, like myself, tend to look for identifiable rules, concrete harms, and demonstrable causal links. We love boxes. But by contrast, chilling often operates through anticipation. People do not necessarily react to what the law clearly prohibits; they react to what they believe may happen if they speak. That gap between legal reality and perceived risk is precisely what makes the phenomenon so important, but also so hard to capture in doctrinal terms.
Historically, the concept developed in US constitutional law, especially in cases recognising that speech can be suppressed indirectly as well as directly (Fajdiga, 2026). A rule does not need to ban expression outright to undermine free speech: it may be enough that it creates uncertainty, signals possible sanction, or makes individuals think that speaking is simply not worth the risk. Thus, we could say, it works on a lower level than the legally bulletproof norms. This was an important doctrinal shift because it acknowledged self-censorship as a constitutional concern rather than a purely private reaction.
The concept later travelled into international legal discourse, though with seemingly less doctrinal force. The European Court of Human Rights and the Inter-American Court of Human Rights have certainly recognised that vague laws, intrusive monitoring, or disproportionate sanctions may deter expression (Johnson et al., 2026). Still, neither have developed a fully articulated chilling effect doctrine: in their jurisprudence, the concept is present, but often indirectly – more an undercurrent in reasoning than a clearly structured legal test.
This doctrinal uncertainty definitely has consequences. One of them is conceptual inflation. The chilling effect is now used to describe several different things at once: a legal argument about overbreadth, an empirical claim about behaviour, a sociological observation about conformity, and sometimes simply a rhetorical and political warning that regulation may go too far. This matters especially in current regulatory debates. Claims about chilling effects are often mobilised against rules addressing online harms, disinformation, platform accountability, or data governance. We have to say that sometimes such concerns are entirely justified. In other cases, however, the language of chilling functions almost as a deregulatory reflex: any intervention is treated as ’suspect’ because it might discourage speech.
That does not mean the phenomenon is illusory. On the contrary, there is now considerable empirical research suggesting that individuals do modify their behaviour when they perceive surveillance or sanction, even in the absence of direct enforcement. Awareness alone can matter. People may avoid searching online for sensitive topics, engaging in controversial debate, or participating in public discussion because they anticipate the risk. In other words, the chilling effect is often produced not by punishment itself, but by the expectation of punishment.
From a legal perspective, this creates a very serious problem. Law is better equipped to assess actual restrictions than diffuse anticipatory pressures. Courts generally want evidence of interference, injury, and causation. Chilling effects rarely appear in such a neat form. They emerge through a combination of legal ambiguity, institutional distrust, social norms, technological environments, and individual vulnerability. And also the causal chain is rarely linear.
This is why I think the chilling effect should not be treated only as a narrow doctrinal category. It is better understood as a broader, systemic phenomenon (Gosztonyi & Lendvai, 2026). Speech is shaped not by law alone, but by an entire ecology of power: legal rules, enforcement practices, platform design, public discourse, and collective memory. What matters is not only what is formally prohibited, but also what individuals believe to be dangerous, exposed, or futile.
A recent Hungarian example illustrates this point rather well. Act III of 2025 introduced severe penalties and surveillance measures in relation to public events that promoted and displayed homosexuality and gender change. This legal norm might have been expected to deter participation due tot he fear of being recorded. If one followed a simple chilling-effect logic, that would be the obvious prediction. Yet participation in fact increased dramatically, producing one of the largest Pride-demonstrations in Europe (Takács & Motakef, 2025). This shows something more interesting than legislation itself: chilling effects are not automatic. Under some conditions, restrictive measures may suppress participation; under others, they may trigger resistance, solidarity, and mobilisation. Context matters. However obvious it is: it does for all speech.
We could go further: if chilling effects are context-sensitive, then they cannot be captured adequately by purely abstract legal reasoning. Nor can they be reduced to a single empirical indicator. Surveys, interviews, experiments, and case studies each reveal only some parts. We are often trying to identify something that did not happen – speech not uttered, participation abandoned, questions left unasked. Studying non-events is inherently difficult and several researches are struggling with it.
For that reason, an interdisciplinary approach seems necessary. Legal aspects remain essential, especially in identifying the kinds of rules and institutional practices most likely to generate uncertainty and fear. But the law on its own is not enough. Sociology, behavioural research, media studies, psychology and communication theory are all needed if we want to understand how perceptions of risk are formed, distributed, and internalised. At the same time, some restraint is also needed in how the concept is used. If every regulation is described as chilling, the term would become completely empty. If the concept is ignored altogether, however, subtle but meaningful constraints on expression remain invisible. The challenge is not to forget the chilling effect, but to use it with greater precision both on conceptual, doctrinal, and empirical level.
I think, the real question, then, is not whether the chilling effect exists. The more difficult question is how we should understand it. In my view, it is less useful as a standalone legal conclusion than as a diagnostic concept: a way of identifying the hidden pressures that shape expression before any formal sanction is applied. That does not make the concept simpler. But it does make it more honest, and probably more useful as well.
For a broader interdisciplinary discussion of these questions, see Legal and Ethical Issues of Chilling Effect (Gosztonyi & Lendvai, 2026), an edited collection discussing the concept from legal, empirical, and ethical perspectives.
References
Fajdiga, M (2026). Chilling Effect: Caution, Please Handle with Care. In Gosztonyi, G & Lendvai GF (Eds.): Legal and Ethical Issues of Chilling Effect. Cham: Springer. https://doi.org/10.1007/978-3-032-17654-7_4
Gosztonyi, G & Lendvai GF (2026). So, What Is Chilling Effect? (Re)Conceptualizing the Phenomenon of Chilling Effect in the Context of Legal Doctrine and Social Perception. In Gosztonyi, G & Lendvai GF (Eds.): Legal and Ethical Issues of Chilling Effect. Cham: Springer. https://doi.org/10.1007/978-3-032-17654-7_1
Hawley, J, Dirocie De León, AD, Ospina Sánchez, JM, Furfaro, L & Mullally, E. (2026). Global Standards on the Chilling Effect: A Comparative Analysis of the Case Law from the African, European, and Inter-American Human Rights Systems. In Gosztonyi, G & Lendvai GF (Eds.): Legal and Ethical Issues of Chilling Effect. Cham: Springer. https://doi.org/10.1007/978-3-032-17654-7_3
Penney, JW (2025). Chilling Effects. Repression, Conformity, and Power in the Digital Age. Cambridge: Cambridge University Press. https://doi.org/10.1017/9781108641784
Takács, J & Motakef, M (2025). „This year the Pride represented a tipping point” – the 2025 Pride Parade in Budapest, the restrictions of LGBTIQ+ rights and gender and queer studies in Hungary. Feministische Studien, 43(2). https://doi.org/10.1515/fs-2025-0036
Featured Photo Credits: Chris Yang / Unsplash
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