Abstract:  When a public employee’s spouse forgoes expression protected by the First Amendment for fear of direct, employment-related sanctions against the public employee, the spouse has suffered a chilling injury. Courts are split on whether such injuries constitute injuries in fact sufficient for standing, however. This Note explores chilling injuries as a basis for standing and suggests that the tests courts employ to determine whether chilling injuries are injuries in fact are inconsistently applied and inadequately protect First Amendment rights. This Note argues that courts should focus on the choice at the heart of any chilling injury: the choice between forgoing protected expression or suffering consequences. One should have standing to sue when government action forces one to make an intolerably difficult choice of whether to engage in protected expression.


Alma Mendez-Thompson was politically active and had participated in a number of political campaigns.1 After moving to Missouri, however, she resisted getting involved in local politics out of fear that her political activities would endanger her husband’s career.2 A provision in the city charter prohibited Ms. Mendez-Thompson’s husband, a city employee, from engaging directly or indirectly in local politics.3 Ms. Mendez-Thompson and her husband sued to challenge the provision.4

The U.S. District Court for the Eastern District of Missouri in International Ass’n of Firefighters, Local 2665 v. City of Ferguson, denied Ms. Mendez-Thompson standing.5 The district court concluded that because Ms. Mendez-Thompson could not be personally subject to direct disciplinary action, she failed to allege an injury in fact required [*PG148]for standing.6 The district court concluded that because disciplinary action against Mr. Thompson would only indirectly affect Ms. Mendez-Thompson, she could raise only, derivatively, the same claims as Mr. Thompson.7 Because the district court upheld the challenged provision as applied to Mr. Thompson, Ms. Mendez-Thompson’s claim likewise failed.8

In March 2002, the U.S. Court of Appeals for the Eighth Circuit reversed and granted standing to Ms. Mendez-Thompson.9 Although directly applicable only to the state employee, the court found that the prohibitions injured Ms. Mendez-Thompson by deterring her exercise of First Amendment rights.10 By holding this injury an injury in fact sufficient for standing, the Eighth Circuit split with the Fourth, Ninth, and Tenth Circuit Courts of Appeal, which had denied standing in very similar circumstances.11 Such disagreements over standing issues are not uncommon; standing doctrine is widely acknowledged to be inconsistently and unpredictably applied.12

Although the application of standing doctrine may be confused, its requirements are easily stated.13 To bring a case in federal court, a plaintiff must show that the actions of the defendant inflicted an injury in fact that a court could redress by a favorable ruling.14 Despite this simple formulation, where injuries alleged are novel or indirect, inconsistent case law provides little concrete guidance.15

The difficulty of determining exactly what sorts of injuries constitute injuries in fact is particularly acute when a plaintiff alleges injury due to a chilling effect.16 A chilling effect occurs when government [*PG149]actions or regulations discourage expression protected by the First Amendment without directly regulating it.17 Because chilling injuries are, by nature, indirect, courts may find them insufficient to meet the injury in fact required for standing in the federal courts.18 Case law provides few clear answers as to which chilling injuries a court should find sufficient for standing.19

This Note examines barriers to standing faced by spouses of public employees who allege chilling injuries due to abridgements of public employee speech.20 In particular, it considers the different approaches taken by the Fourth, Eighth, Ninth, and Tenth Circuit Courts of Appeal.21 Part I examines chilling injuries generally.22 Part II addresses standing doctrine generally, its requirements, and the rationales behind them.23 Part III discusses the application of standing doctrine to chilling injuries in the U.S. Supreme Court.24 Part IV discusses chilling injuries as a basis for standing in lower federal courts.25 Part V addresses the issue dividing the Eighth from the Fourth, Ninth, and Tenth Circuit Courts of Appeals, namely, whether fear that one’s protected speech will result in disciplinary action against one’s spouse constitutes a chilling injury sufficient for standing.26 Finally, Part VI proposes that standing should be granted to plaintiffs able to show that government action forced an objectively difficult choice between forgoing protected rights and triggering harm.27

I.  Chilling Effects Generally

Government sanctions imposed on a public employee do not directly subject the public employee’s spouse to government regulation [*PG150]or action.28 Nevertheless, sanctions against public employees triggered by their spouses’ exercise of protected expression may deter the spouses’ expression.29 To obtain standing, the spouse must show that this deterrent or chilling effect was an injury in fact.30

The concept of a First Amendment chill first emerged in Justice Felix Frankfurter’s concurrence in Wieman v. Updegraff.31 A chilling effect occurs when government action or regulation deters expression protected by the First Amendment, while not directly prohibiting it.32 For example, fear that engaging in the protected activity will subject one’s spouse to employment-related sanctions may result in a chilling effect.33 Although most cases of chilling effects may result from government regulation, a chilling effect may also occur as a result of non-regulatory government action such as surveillance.34

The recognition of chilling effects indicates the high value placed on expression protected by the First Amendment.35 The U.S. Supreme Court has emphasized that free expression is “supremely precious” but “delicate and vulnerable.”36 The concept of First Amendment chill reflects the high societal value placed on free expression by recognizing that even indirect effects of government regulation or action may abridge expression.37

[*PG151]II.  Standing Doctrine Generally

Understanding the hurdles faced by litigants seeking standing to sue for chilling injuries requires a general knowledge of standing doctrine, its requirements, and its rationales.38 Whether a public employee’s spouse has standing to challenge a regulation imposing sanctions on the public employee for the spouse’s speech hinges on whether the spouse has suffered an injury in fact.39 This discussion therefore focuses on standing doctrine’s injury-in-fact requirement.40

Standing is a threshold issue.41 Before a federal court can hear a case on the merits, litigants must show that they are the proper parties to bring suit.42 Courts derive current standing doctrine from Article III of the U.S. Constitution, which grants the federal judiciary the power to hear “cases and controversies,” and, by implication, nothing else.43 Where a plaintiff alleges merely hypothetical injuries, no genuine controversy exists between adverse parties and, therefore, a federal court would overstep its constitutional bounds if it entertained the plaintiff’s complaint.44 Because such overreaching implicates separation-of-powers concerns, the U.S. Supreme Court grounds its current standing doctrine in the concept of separation of powers.45 By limiting access solely to litigants alleging concrete, personal harms, the Court avoids interfering with the political branches.46 To prevent such interference, the U.S. Supreme Court has established three constitutional requirements for standing: (1) the plaintiff must have suffered an injury in fact; (2) the defendant’s actions must have caused this injury in fact; and (3) a court could redress the injury were the plaintiff successful on the merits.47

[*PG152] The injury-in-fact requirement is the central issue in determining whether an alleged chilling injury is sufficient for standing.48 The U.S. Supreme Court defines an injury in fact as “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.”49 A particularized injury is one that has a personal, individualized impact on the plaintiff.50

For example, in 1972, the U.S. Supreme Court in Sierra Club v. Morton denied standing to the Sierra Club because it failed to allege that any of its members actually used the land threatened by challenged development.51 Because they did not use the land, the Sierra Club’s members could not have been personally and individually affected by construction on the land.52 The construction thus did not cause an injury in fact.53 In contrast, the Sierra Club was granted standing on remand after amending its complaint to include allegations that its members did use the land and would be affected by the construction.54 For an alleged injury to be an injury in fact, therefore, the injury must affect the party in an individual way, a way different from its effects on others.55

Although standing requires concrete injuries that are neither conjectural nor hypothetical, in one oft-criticized decision the U.S. Supreme Court found injury in fact despite an attenuated connection to the contested activity.56 In 1990, in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), the U.S. Supreme Court granted standing to a student group that alleged that the Interstate Commerce Commission degraded its members’ use of city parks by increasing rates for shipping freight by rail.57 The students reasoned that because the rate hike would make it more costly to ship recycled [*PG153]goods, recycling would decline.58 This would, in turn, result in more litter in parks, thereby lessening the students’ personal aesthetic enjoyment of the parks.59 The SCRAP decision suggests that, at least in some cases, the Court places greater emphasis on whether the alleged injury is particularized and individual than on whether it is conjectural or hypothetical.60

Chilling effects are particularly relevant to standing’s overbreadth doctrine.61 Unique to First Amendment jurisprudence, the overbreadth doctrine provides an exception to the rule that parties do not have standing to assert the injuries of parties not before the court.62 Under the overbreadth doctrine, a party to whom a law has been constitutionally applied may nevertheless challenge the law on the grounds that it could be unconstitutionally applied to a hypothetical third party.63 Given this preference to err on the side of protecting speech, commentators have noted that the procedural barriers currently faced by a litigant alleging chilling injuries can be surprisingly difficult to surmount.64

III.  Chilling Effects and Standing in the U.S. Supreme Court

The U.S. Supreme Court has specifically addressed the issue of whether chilling injuries are sufficient for standing in three cases.65 First, in 1972, in Laird v. Tatum, the U.S. Supreme Court denied standing to plaintiffs who alleged that Army surveillance of their political activities impermissibly chilled their exercise of First Amendment rights.66 Although noting that even indirect effects on First Amendment rights can be sufficient for standing, the Court held subjective chills inadequate for standing.67 The Court left unanswered the ques[*PG154]tion of whether objective chills are sufficient and provided no explicit means to distinguish objective from subjective chills.68

Although Laird left these important questions unanswered, it does offer guidance as to what kinds of chilling injuries do not qualify as injuries in fact.69 In Laird, the fears that allegedly chilled plaintiffs’ expression resulted from the plaintiffs’ unsupported speculation that the Army could conceivably misuse the intelligence information to the plaintiffs’ detriment in the future.70 The Court thus looked not only at the existence of an alleged chill but also at its cause.71 Because the feared harm from misuse of intelligence information was merely speculative, the plaintiffs’ fear was subjective and thus insufficient for standing.72 Therefore, Laird indicates that speculative fears are not alone sufficient for standing.73

In 1974, in Socialist Workers Party v. Attorney General, the U.S. Supreme Court next considered chilling injuries as a basis for standing.74 Like the plaintiffs in Laird, the plaintiffs in this case sought to contest government surveillance.75 The plaintiffs, however, did more than simply allege chill based on unsupported fears of future harm from conceivable government misuse of intelligence information.76 In addition to alleging a chilling effect, the plaintiffs in Socialist Workers asserted that the government’s investigation would discourage attendance at a political convention, prevent active participation in the convention, and adversely affect the employment of those in attendance.77 The Court held these alleged harms sufficient for standing.78 The plaintiffs’ chill resulted from fear that surveillance would lead to actual and imminent harm, rather than the speculative fear of injury at some undetermined time in the future held insufficient in Laird.79 In other words, the plaintiffs had objective reasons to fear expressing themselves freely.80 Accordingly, the Court granted standing.81

[*PG155] Most recently, in 1987, the U.S. Supreme Court addressed the issue of standing based on chilling effects in Meese v. Keene.82 Meese involved a California State Senator, Barry Keene, who alleged that the labeling of three Canadian films as political propaganda chilled his First Amendment rights by deterring him from exhibiting the films.83 The Court noted that merely alleging a chilling effect without more would be insufficient for standing under Laird.84

In addition to alleging a chilling effect, however, Keene provided objective evidence legitimizing his fear that exhibiting films categorized as propaganda would result in harm to his career by damaging his reputation and consequently reducing the likelihood of his reelection.85 This evidence included results of an opinion poll and statements of a political analyst suggesting that Keene’s reputation in the community and chances of reelection would suffer from exhibiting films the Department of Justice listed as political propaganda.86 Because Keene’s fear was supported by objective evidence, in contrast to the merely speculative fears in Laird, the chilling effect he alleged was more than a subjective chill; therefore, it satisfied Article III’s injury-in-fact requirement.87

Taken together, the U.S. Supreme Court’s decisions on whether chilling injuries constitute injuries in fact sufficient for standing indicate that plaintiffs must show that the exercise of First Amendment rights will result in harm.88 Further, this harm must not be merely conjectural or hypothetical.89 Rather, the injury must be objectively supported in some way by evidence that engaging in the protected activity will result in harm.90 The Court has recognized objectively supported harms such as damage to one’s career, job prospects, reputation, or to a convention’s success.91 Lower courts have questioned whether the harm supported by objective evidence must itself be independently sufficient for standing.92

[*PG156]IV.  Chilling Effects as a Basis for Standing in
Lower Federal Courts

Laird v. Tatum’s requirement that allegations of chill be accompanied by other evidence of harm led to two general interpretations among the lower courts: (1) evidence of harm must be sufficient as an injury in fact independent of any allegation of chill and (2) alleged chill and evidence of harm may become an injury in fact in combination where the evidence of harm indicates that the chill is objectively reasonable.93

For example, in 1984, in United Presbyterian Church in the U.S.A. v. Reagan, the District of Columbia Court of Appeals stated that the existence of chilling effects is irrelevant to standing analysis.94 In then-Judge Scalia’s words, a chilling effect is the “reason why the governmental imposition is invalid rather than . . . the harm which entitles the plaintiff to challenge it.”95 Drawing no distinction between subjective and objective chills, the court concluded that Laird dictated that standing requires concrete harm separate from the chilling effect itself.96 The plaintiffs in United Presbyterian Church simply alleged that intelligence procedures outlined in an executive order chilled their constitutionally protected activities without providing evidence of other harm.97 Therefore, the court held that the plaintiffs’ complaint failed to allege an injury in fact and consequently denied standing.98

Similarly, in 1983, in Gordon v. Warren Consolidated Board of Education, the U.S. Court of Appeals for the Sixth Circuit found the chilling effects resulting from an undercover police surveillance operation in high school classrooms insufficient for standing.99 Although the plaintiffs alleged harms in addition to chilling effects—they alleged that the surveillance had degraded teacher-student relationships, caused reputational harm, and damaged future employment prospects—the [*PG157]court rejected these allegations finding them insufficient as an independent basis for standing.100 Although potentially at odds with the U.S. Supreme Court’s 1987 decision in Meese v. Keene, the view that chilling effects are irrelevant to whether there has been an injury in fact has continued support.101

In 1991, in Bordell v. General Electric Co., the U.S. Court of Appeals for the Second Circuit adopted the second interpretation—that a chilling effect can constitute an injury in fact sufficient for standing if evidence shows that the chilling effect stems from objectively reasonable fears.102 Under this interpretation, plaintiffs must substantiate alleged chilling injuries with objective evidence.103

Applying this interpretation, the Bordell court denied a federal laboratory employee standing to contest a security policy requiring formal approval before making public statements.104 The plaintiff failed to provide evidence that the policy had actually deterred him from making public statements.105 In fact, the plaintiff had made numerous public statements despite the policy.106 Further, the court determined that the plaintiff had no reasonable expectation that his employer would ever punish him under the policy, which the employer had subsequently amended to permit certain public statements.107 Because the plaintiff did not support his fears of future injury by evidence making them objectively reasonable, he alleged a purely subjective chill insufficient for standing under Laird.108

In 1999, in Latino Officers Ass’n v. Safir, the U.S. Court of Appeals for the Second Circuit applied the same reasoning to grant standing to police officers who sued to contest a department policy restricting public statements by officers.109 The plaintiffs provided evidence that they had turned down speaking requests because of the department’s refusal to allow plaintiffs to speak and threatened enforcement of the [*PG158]policy.110 The court held this evidence sufficient to objectively support plaintiffs’ claims of chilling injuries.111 Thus, plaintiffs had objectively reasonable chilling injuries sufficient for standing.112

Similarly, in 1999, in Rhode Island Ass’n of Realtors, Inc. v. Whitehouse, the U.S. Court of Appeals for the First Circuit granted standing to realtors who established a credible threat that they would be sanctioned for using public records to solicit new members (an activity protected by the First Amendment).113 The court stated that plaintiffs must establish that alleged chills resulted from objectively reasonable fears.114 Determining which fears are objectively reasonable requires consideration of the totality of the circumstances.115

Following this reasoning, the court weighed the totality of the circumstances and concluded that they supported an objectively reasonable fear of prosecution.116 Specifically, the court found: (1) an intention to engage in protected expression and (2) that doing so would result in a credible threat of sanctions.117 The existence of an objectively reasonable fear of prosecution raised the plaintiff’s allegations of chill to the level of an injury in fact.118 Accordingly, the court granted standing.119

Finally, in January 2003, in Mangual v. Rotger-Sabat, the U.S. Court of Appeals for the First Circuit supported the view that allegations of chill constitute injuries in fact if objectively reasonable.120 Mangual involved a journalist threatened by the prospect of criminal libel prosecution as retribution for revealing police corruption.121 The court concluded that recent prosecutions of journalists under the challenged statute and polls showing that journalist association members strongly feared prosecution under the statute established a credible threat of prosecution.122 In the plaintiff’s words, the threat of prosecution put him “in a catch-22 situation, damned if I do, damned if I don’t. Clearly, the alternative to not living under the risk of prose[*PG159]cution for libel . . . is not to publish. But is this not a ‘chilling effect?’”123 The First Circuit Court of Appeals agreed that the credible threat of prosecution and resultant chilling effect constituted an injury in fact sufficient for standing.124

V.  Chilling Injuries Based on Fear of Injury to One’s Spouse

This Part considers the narrower issue of whether chill resulting from fear that one’s protected speech will trigger state sanctions against one’s spouse constitutes an injury in fact sufficient for standing.125 Four federal appellate courts have considered the issue.126 The Fourth, Ninth, and Tenth Circuit Courts of Appeals have concluded that chilling injuries based on fear of injury to one’s spouse were too indirect to constitute injuries in fact.127 Most recently, however, the Eighth Circuit Court of Appeals reached the opposite conclusion.128

In 1979, in English v. Powell, the first case to address chilling injuries based on fear for one’s spouse, the U.S. Court of Appeals for the Fourth Circuit denied standing to the wife of a public employee.129 The wife alleged that her protected speech resulted in her husband’s demotion.130 The court concluded, however, that any harm she experienced was too indirect to constitute an injury in fact.131

In English, E.A. Shands was promoted to a management position with the county Alcoholic Beverage Control Board.132 The promotion resulted from a reorganization plan recommended by the County Composite Board, on which his wife, Vera Shands, sat as vice-chair.133 After the reorganization, W. D. Powell was appointed as Mr. Shands’s supervisor over Mr. Shands’s vehement objections.134 Despite Powell’s command to Mr. Shands not to voice complaints to the board, Mrs. [*PG160]Shands angrily complained about Powell to several board members.135 Powell told Mr. Shands that further complaints by Mr. Shands or his wife would result in Mr. Shands’s immediate dismissal, and, three days later, he demoted Mr. Shands.136

Concluding that his speech was not constitutionally protected, the court dismissed Mr. Shands’s suit to contest his demotion.137 Mrs. Shands had also sought standing to sue on her own behalf, alleging an infringement of her First Amendment rights.138 Mrs. Shands argued that Powell’s threat that he would fire Mr. Shands if Mrs. Shands made complaints caused a subjective chill of her First Amendment rights.139 She argued further that this subjective chill, when combined with the “present objective harm” caused by Mr. Shands’s demotion and consequent decrease in the family income (which forced Mrs. Shands to take a job) constituted an injury in fact sufficient for standing.140 The court disagreed, finding Mrs. Shands’s injuries too indirect and speculative to constitute the injury in fact required for standing.141 The court rejected Mrs. Shands’s attempt to gain standing by combining her subjective chill with present objective harm to her husband’s career.142

The Court of Appeals for the Tenth Circuit reached a similar conclusion in 1998, in Horstkoetter v. Department of Public Safety.143 Horstkoetter involved a suit by highway patrol troopers and their wives contesting an order to remove political campaign signs from their yards.144 Finding any threatened injury to the troopers’ wives too indirect to support standing for the wives’ independent claims, the court granted summary judgment, dismissing the wives’ claims.145

In Horstkoetter, the wives of two troopers erected political signs supporting a candidate for county sheriff in their yards.146 Pursuant to a policy forbidding troopers from publicly displaying political mate[*PG161]rial, supervisors threatened the troopers with discipline or termination unless the signs were removed, regardless of who erected them.147 Consequently, the wives removed the signs.148 After an exchange of letters with the highway patrol regarding the policy, the troopers and their wives sued.149

The Tenth Circuit affirmed the district court’s conclusion that the highway patrol policy constitutionally restricted the troopers’ speech and denied the troopers’ spouses standing to pursue claims independent of the troopers’ claims.150 The court held that the wives were harmed only indirectly because they could not have been directly subject to disciplinary action.151 The wives’ chilling injuries, coupled with direct harm to their husbands and indirect harm to themselves, did not constitute injuries in fact required for standing.152

Next, in 1999, in Biggs v. Best, Best & Kreiger, the Ninth Circuit Court of Appeals denied standing to the husband and daughter of a city attorney fired as a result of the husband’s and daughter’s political activities.153 Julie Biggs was an employee of a private law firm that acted as city attorney for Redlands, California.154 Her husband and daughter were active in local politics and had campaigned for the recall of the mayor of Redlands.155 As a result of the husband’s and daughter’s political activities, a city councilman demanded that the Biggs family be “silenced in Redlands community politics” or the city would fire the law firm.156 As a result, the firm told Julie Biggs to limit her family’s political involvement and informed her that she was now out of consideration for partnership at the firm.157 The family then sued the city council.158 The firm fired Julie Biggs.159

The Ninth Circuit acknowledged that fear of negative repercussions to Biggs’s career restrained the political activities of Biggs’s husband and daughter.160 Employment-related sanctions threatened [*PG162]against Julie Biggs forced her husband and daughter to make a difficult choice.161 They had to choose between jeopardizing Biggs’s position, which financially benefited the entire family, and engaging in protected political speech.162

Nevertheless, the Ninth Circuit court denied the husband and daughter standing to assert First Amendment claims of their own.163 The court found that because the husband and daughter were not directly threatened with sanctions, their injuries were indirect.164 These indirect injuries were sufficient only to allow claims derivative of Julie Biggs’s claim.165 Because Julie Biggs’s claims failed, so did those of her family.166

In contrast, in 2002, in International Ass’n of Firefighters, Local 2665 v. City of Ferguson, the Court of Appeals for the Eighth Circuit granted standing to assert chilling injuries to the spouse of a public employee.167 International Ass’n of Firefighters involved First Amendment challenges brought by a public employee and his wife against a provision in the town charter that prohibited the public employee from engaging, even indirectly, in local political campaigns.168 The Eighth Circuit upheld the constitutionality of the provision as applied to the employee.169 In contrast to the Fourth, Ninth, and Tenth Circuits, however, the court concluded that the employee’s wife had standing to independently challenge the provision.170 The court noted that if the wife’s political activities resulted in the state firing or disciplining her husband, the resultant decrease in income would have a negative economic effect on her.171 Further, the wife was injured by forgoing or hesitating to engage in protected speech to avoid these financial consequences.172 The court then determined that this was a “real and [*PG163]tangible” injury and thus constituted an injury in fact sufficient for standing.173

VI.  Analysis

When the spouse of a public employee forgoes or hesitates to engage in protected speech out of fear that doing so will result in direct, employment-related sanctions against the public employee, the spouse has suffered an injury to rights protected by the First Amendment.174 The U.S. Courts of Appeals for the Fourth, Eighth, Ninth, and Tenth Circuits have disagreed, however, as to whether and under what circumstances this injury is sufficient for standing.175 This disagreement is due to inconsistent case law on chilling injuries as a basis for standing.176

Conflicting interpretations of the few U.S. Supreme Court decisions to address whether chilling injuries constitute injuries in fact sufficient for standing have resulted in two competing tests.177 The first, referred to herein as the independent injury test, requires evidence of injury independently sufficient for standing; the existence of chill is irrelevant.178 The second, referred to herein as the objectively reasonable test, recognizes chilling injuries as injuries in fact only if based on objectively reasonable fears.179 Parts VI.A and VI.B analyze each of these two tests in turn and argue that neither is entirely satisfactory.180 Part VI.C proposes an alternative, the choice test, which focuses on the choice the challenged government action forced the plaintiff to make.181 The choice test provides appropriate and necessary safeguards of First Amendment rights while denying standing on the basis of the mere subjective chills held insufficient for standing by the U.S. Supreme Court in Laird v. Tatum.182

[*PG164]A.  The Independent Injury Test Inadequately Protects First Amendment Rights and Is Inconsistent with the Overbreadth Doctrine

The view favored by then-Judge Scalia in United Presbyterian Church in the U.S.A. v. Reagan, that chill is irrelevant to standing analysis except as part of the First Amendment doctrine of overbreadth, is flawed.183 The requirement of an injury in fact independent of chill is inconsistent with the rationale for the overbreadth doctrine and fails to adequately protect the precious and vulnerable right to free speech guaranteed by the First Amendment.184 The free flow of ideas, and political speech in particular, are essential elements of the Framers’ constitutional vision.185 Recognizing that First Amendment rights are precious but vulnerable, courts have established unique safeguards for them.186 Ignoring the presence of chilling injuries for standing purposes is inconsistent with the existence of these safeguards because deterrents as well as direct abridgements can equally impair the free flow of ideas.187

One of these safeguards is the First Amendment doctrine of overbreadth.188 This doctrine enables litigants whose speech is permissibly abridged to contest the constitutionality of government action on the basis that it may impermissibly chill the rights of hypothetical third parties.189 By allowing an exception to normal requirements for standing, overbreadth doctrine recognizes that chilling injuries present a serious danger to First Amendment freedoms.190 It would be inconsistent, however, to grant strangers standing to raise the chilling injuries of parties not before the court under overbreadth doctrine, while simultaneously denying standing to plaintiffs alleging their own chilling injuries.191 But that is exactly what the independent injury test does.192 The independent injury test denies standing to parties chilled by government action unless they can show some independent injury in fact apart from the chilling injury.193 In contrast, the overbreadth doctrine grants strangers standing to raise the same [*PG165]chilling injuries found insufficient for standing when raised by chilled parties themselves.194

Because the overbreadth doctrine presupposes that the chill of First Amendment rights is itself a serious injury, courts should recognize that chilling injuries alone can constitute injuries in fact.195 Therefore, victims of chilling injuries should have standing to challenge government action without depending on the possibility that other parties may challenge them on the basis of overbreadth.196 It is unlikely that the Framers intended to leave protection of such a precious and vulnerable right as free expression to the fortuity that a stranger would take up one’s cause.197 They most likely intended chilled parties to be able to defend their own rights.198

B.  The Objectively Reasonable Test Yields Inconsistent Results
Because It Focuses on the Harm Threatened Rather
Than the Resultant Chilling Effect

The theory that chilling effects can be injuries in fact—and thus sufficient for standing—if caused by objectively reasonable fears recognizes that deterring protected speech can inflict injury.199 By focusing on evidence of objective harm rather than on the chill itself, however, this test distracts courts from the effect of the deterrent on the chilled party.200 As a consequence, the objectively reasonable test has yielded inconsistent results.201

For example, the plaintiffs in Horstkoetter v. Department of Public Safety, Biggs v. Best, Best & Kreiger, and International Ass’n of Firefighters, Local 2665 v. City of Ferguson all provided evidence of objectively reasonable fears of employment-related sanctions against their spouses.202 Yet, the courts in Horstkoetter and Biggs denied standing.203 [*PG166]In Horstkoetter, the troopers’ wives established that, pursuant to highway patrol policy, erecting political signs could trigger employment-related sanctions against their husbands.204 Moreover, the supervisors’ threats to discipline the husbands or terminate their employment indicated that the husbands’ supervisors intended to enforce the policy.205 This evidence of threatened sanctions established that the wives’ fears were objectively reasonable.206 Therefore, the resulting chilling injuries should have been sufficient for standing.207 The court reached the wrong conclusion because it focused on whether the sanctions threatened the wives directly or indirectly rather than on the effect of the deterrent and the extent of the resultant chill on the wives’ desired expression.208

Similarly, in Biggs, the husband and daughter established that a city councilman intended to silence them by threatening to terminate the city’s business with Julie Biggs’s employer.209 They further established that these threats resulted in damage to Julie Biggs’s career and to her eventual termination.210 The husband and daughter thus showed that objectively reasonable fears chilled their expression and the court should have granted standing.211 Like the court in Horstkoetter, however, the Biggs court focused on whether the sanctions affected the husband and daughter directly or indirectly rather than on the deterrent effect on their protected expression.212

What the courts in Biggs and Horstkoetter failed to recognize is that chilling injuries are indirect by definition.213 A chilling injury results from government action or regulation that deters speech without directly regulating it.214 A direct chilling injury is a contradiction in terms.215 Requiring direct chilling injury for standing purposes thus [*PG167]closes the courts to victims of chilling injuries and eviscerates the concept of First Amendment chill.216

In addition, the tendency of courts to focus on the directness or indirectness of the threatened harm distracts courts from considering the strength of the deterrent and the resultant chilling effect.217 Indirect threatened harms can exert a strong deterrent effect resulting in injury to one’s First Amendment rights.218 To appropriately protect these rights, the central inquiry should not be the directness or indirectness of the deterrent, but its effects.219 Under the objectively reasonable test, the degree of indirectness of the threatened harm is relevant to whether the fear causing the chill is objectively reasonable, but the inquiry should focus on whether, and how strongly, the harm threatened deters speech or coerces silence.220

C.  The Choice Test Most Appropriately Protects First Amendment Rights

To determine whether an alleged chilling injury is an injury in fact required for standing, courts should consider the choice forced by the challenged government action: the choice of whether to forego the right to protected speech or to suffer consequences from exercising the right.221 This choice lies at the heart of every chilling injury and an analysis of it provides a workable framework for deciding what chilling injuries are injuries in fact sufficient for standing.222

Because a chilling injury involves a choice between two alternatives—to forego speech or suffer consequences—evaluating the choice requires considering both.223 Analyzing the choice thus involves consideration of objective factors relevant to each alternative: (a) factors relating to the desired expression and (b) factors relating to the deterrent.224 Factors relating to the desired expression include the nature and social value of the expression and evidence of the plaintiff’s desire [*PG168]to engage in it.225 Factors relating to the deterrent include the likelihood, severity, and directness of the threatened consequences.226

Evaluation of the choice at the heart of the alleged chill would appropriately safeguard First Amendment rights by recognizing that deterrents other than direct government regulation or action may cause abridgement.227 Focusing on the choice imposed would also prevent courts from becoming distracted by questions of whether the threatened consequences are direct or indirect.228 The directness of the consequences is relevant but only inasmuch as it impacts the difficulty of the choice imposed by the deterrent.229 In addition, because the existence of the deterrent must be objectively shown, the choice test will, consistent with Laird, deny standing on the basis of subjective, unsupported allegations of chilling effects.230

Although no court has explicitly used the choice test to determine whether a plaintiff alleging chilling injuries has standing, courts have recognized that chilling injuries involve a choice between the consequences of exercising protected expression and self-censorship.231 For example, the majority in the U.S. Supreme Court decision in Meese v. Keene noted that the contested provision forced Keene to make “the Hobson’s choice” between forgoing protected, political speech, on the one hand, and suffering injury to his reputation and diminished chances of reelection, on the other.232 Similarly, in Mangual v. Rotger-Sabat, the U.S. Court of Appeals for the First Circuit recognized that plaintiffs should not be forced to make impossible choices.233

Applied to cases involving chilling effects alleged by spouses of public employees, the choice test reveals that the Eighth Circuit Court of Appeals appropriately granted standing to Alma Mendez-[*PG169]Thompson in International Ass’n of Firefighters.234 The Fourth, Ninth, and Tenth Circuit Courts of Appeals, in contrast, inappropriately denied standing in similar circumstances.235

In International Ass’n of Firefighters, Ms. Mendez-Thompson had to choose whether to (a) forego her desire to engage in local politics or (b) jeopardize her husband’s career, and the income it provided to their family.236 Framed this way, it matters little that the sanction was threatened against Mr. Thompson.237 The threat of sanctions against her husband as a result of her desired expression forced an intolerable decision on Ms. Mendez-Thompson.238 Like the plaintiff in Mangual, Ms. Mendez-Thompson was in a catch-22.239 Being forced to make this intolerable decision was an injury in fact and thus sufficient as a basis for standing.240

In Biggs, Mr. Biggs and his daughter were forced to choose between (a) curtailing their protected political activities and (b) causing Mrs. Biggs’s termination and loss of her substantial salary.241 As in International Ass’n of Firefighters, this was an impossible choice.242 By being forced to make this choice, Mr. Biggs and his daughter were injured-in-fact and thus should have been granted standing.243

Horstkoetter involved a similarly difficult choice.244 Highway patrol policy forced the troopers’ wives to choose between (a) abstaining from political expression by removing campaign signs from their property and (b) the risk that their husbands would be disciplined, demoted, or terminated as a result of leaving the signs standing.245 Again, being forced to make an impossible choice was itself an injury in fact and accordingly the wives should have been granted standing.246

English v. Powell is perhaps a closer case.247 There, Mrs. Shands had to choose whether to (a) voice her displeasure about her husband’s supervisor or (b) withhold her comments to avoid risking [*PG170]harm to her husband’s position.248 The speech Mrs. Shands engaged in was not political and thus was less valuable than the speech chilled in International Ass’n of Firefighters, Biggs, and Horstkoetter.249 As a result, her choice seems much less difficult and therefore would likely be insufficient for standing.250


The few U.S. Supreme Court decisions to address whether chilling injuries can be injuries in fact required for standing have left important questions unanswered. As a result, lower federal courts have developed two incompatible tests to determine when chilling injuries are sufficient for standing. Neither appropriately protects precious and fragile First Amendment rights. The first, the independent injury test, requires a plaintiff to show injury in fact apart from the chill; chilling injuries are irrelevant except as part of the overbreadth doctrine. This test is inconsistent because it grants standing to raise the claims of hypothetical third-party victims of chill under the overbreadth doctrine while denying standing to actual victims of chill. The second test, the objectively reasonable test, better protects FirstAmendment rights because it recognizes that chilling injuries can constitute injuries in fact. This test’s focus on the threatened harm, however, distracts courts’ attention to auxiliary issues such as the directness or indirectness of the harm threatened. As a result, courts have improperly denied standing to plaintiffs able to demonstrate that their speech was chilled by objectively reasonable fears.

The alternative proposed in this Note, the choice test, would protect valuable First Amendment rights while yielding more consistent results than the objectively reasonable test. The choice test recognizes that at the root of every chilling injury lies a choice between self-censorship and the threatened consequences of exercising First Amendment rights. Focusing on the difficulty of that choice based on objective factors will best enable a court to discern what chills are injuries in fact sufficient for standing. When plaintiffs can show that the challenged government action forced an intolerable decision, they should be granted standing. The choice test would grant standing when government action forces plaintiffs to decide between forgoing protected speech and causing employment-related sanctions against [*PG171]their publicly employed spouses. Applying the choice test would thus resolve the split between the Fourth, Eighth, Ninth, and Tenth Circuit Courts of Appeals.

Jeremy A.M. Evans


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