On the heels of yesterday’s Supreme Court decision holding that a 13 year old girl has the right to attend school without being strip-searched by drug warriors hunting for contraband advil, Matthew Wright, the attorney for Safford Unified School District, had a reaction that, at first blush, blends in with the newspaper boilerplate but when isolated and examined on its own, becomes intensely dishonest:

[S]tunting the discretion of school officials in such circumstances where they need the flexibility to act will inevitably have a chilling effect on their response to threats of drugs on campus.

That’s one way to phrase it.  But it isn’t the phrase I’d use.

Rather, I’d say that school officials who use their “discretion” to order prepubescent girls to strip almost naked will inevitably be subjected to compensatory or punitive damages.

Or perhaps that school officials who needlessly subject students to abuse of the sort that’s normally tolerated only in a jail or prison will inevitably be deterred from doing what your clients did to Savana Redding.

That was the very point of the Redding lawsuit, Mr. Wright.  Although from the lofty peak of the United States Supreme Court it wasn’t obvious until yesterday, here on the fringes of decent society where I live it’s always been pretty well established that grown men don’t order little girls to strip to their training bras and turn their underwear inside out.

Indeed, if your clients hadn’t been school administrators, society would have introduced them to an even harsher deterrent or “chilling effect” than money damages:  prison.

Although the language of law has introduced many toxins into everyday English, I can think of few as pervasive as the term “chilling effect,” which has evolved from its original and limited meaning (suppression of legitimate political speech by overbroad or arbitrarily enforced laws) to mean, today, “deterring me from doing something that everyone knows is wrong, but that I’d like to do anyway.”

Motor vehicle negligence laws exert a “chilling effect” on my discretion to drive after consuming six beers.

The threat of losing my law license, divorce, and alimony laws exert a “chilling effect” on my discretion to clean out my client trust account and fly to Argentina for a weeklong fling with my partner’s hot secretary.

And the criminal code exerts a “chilling effect” on my discretion to invest in cocaine futures.

In plain English, we call these “chilling effects” compensation for wrongs, deterrence, and punishment.  And yes Mr. Wright your clients hopefully will be deterred by the prospect of paying damages in a civil suit from molesting little girls like Savana Redding in the future.  Even if their hearts are in the right places.  Even if it’s to protect her from advil.

The “chilling effect” euphemism is hardly an American phenomenon.

In England, hardly a bastion of free speech, parliamentarians who’ve been caught raiding the public treasury for personal expenses complain that a new oversight commission will have a “chilling effect” on their discretion to renovate the family moat on the taxpayers’ bill.

In Canada, the head of the federal censorship commission complains that public criticism of her agency’s abuses exerts a “reverse chill” on her ability to prosecute even more people for thoughtcrimes.

And back home, insurance companies afraid at the prospect of a federal oversight board in reaction to their role in the economic crisis complain of a “chilling effect” on their discretion to invest policyholders’ money in the lucrative North Korean liability insurance market.

None of these cases has anything to do with speech, save that in each someone is mangling the English language, with weasel words.

Perverted drug warriors masquerading as teachers, censors masquerading as the censored, public servants caught with their hands in the till, and corporations squandering shareholders’ assets on the equivalent of Dutch tulips, all become victims, by repeating the magic words “chilling effect.”

There ought to be a law.

Last 5 posts by Patrick

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