‘Chilling Effect’ of Limiting Freedom of Expression of Judges: Connecting the Dots from Legal and Extra-legal Doctrine

Deliberate undermining of checks on the elected branches and attempts to capture the judiciary, have pushed many judges (and prosecutors), to speak out in defence of the rule of law. They have faced stringent sanctions in response. Former judge of the ECtHR, András Baka, was dismissed from the post of Supreme Court president. Judge Żurek was subjected to endless disciplinary proceedings and dismissed from the Polish council of the judiciary. Many others, who publicly expressed loyalty to the rule of law have seen their judicial careers hindered. Moreover, many more choose to self-censor for fear that they could be next. In Constitutional law doctrine, this is called the ‘chilling effect’: the effect of (potential) sanctions for expressing one’s opinion, creating fear, which dissuades people from speaking about a certain topic at all (suppression of speech) or compel them to choose milder, more indirect or subtle way of communication (modification of speech). US legal scholars warn that the US Supreme Court has uncritically embraced the concept of ‘chilling effect’ and question whether judicial intuition is sufficient to justify such far-reaching consequences for constitutional adjudication. We can raise a similar reproach against the ECtHR. The Strasbourg court’s jurisprudence reveals a lack of clarity and uniformity in application of the ‘chilling effect’, at least in cases concerning freedom of expression of judges. In essence, the ‘chilling effect’ is a behavioural phenomenon. Lack of expertise in behavioural science explains why judges struggle to adequately grasp its significance. Legal scholars have contributed little to fill this knowledge gap. This is why this paper draws on other disciplines that have studied the ‘chilling effect’ such as mass communication, journalism, psychology, philosophy, to complement the legal theory and provide a more robust theoretical account of the ‘chilling effect’. It then determines to what extent we can apply these findings to the specific context of freedom of expression of judges and critically evaluates the ECtHR jurisprudence in the light of the bolstered understanding of the ‘chilling effect’.