Speech, Spouses, and Standing: Is There Standing to Sue When Sanctions Threatened Against One's Spouse Chill Protected Expression?

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.