What Good is a Right You're Afraid to Use?

A town committee’s job is not simply to pass ordinances. It is to pass ordinances that are clear, fair, and constitutional.

That duty matters most when a local law touches protected activity: speaking at meetings, recording public proceedings, criticizing officials, petitioning government, or otherwise participating in civic life. If government writes rules that ordinary residents cannot reasonably understand, the damage does not begin in a courtroom. It begins much earlier, when people decide it is safer to stay quiet than to risk punishment.

The United States Supreme Court has been clear about why vague laws are dangerous. In Grayned v. City of Rockford, the Court explained that vague laws fail to give ordinary people fair notice of what is prohibited, and they invite arbitrary enforcement by leaving too much to ad hoc judgment. The Court also warned that when a vague law touches First Amendment freedoms, it inhibits their exercise.

That warning becomes even more serious when penalties are steep. In Baggett v. Bullitt, the Supreme Court recognized that unclear laws cause citizens to steer far wider of the unlawful zone than they otherwise would. In plain English, people back off from lawful speech, lawful criticism, and lawful participation, not because those things are actually forbidden, but because no one wants to be the test case.

That is the heart of a chilling effect. Government does not have to explicitly ban a right to suppress it in practice. Sometimes all it takes is vague wording, broad discretion, and penalties severe enough to make ordinary people think twice. A protected right means very little if the public is too afraid to use it.

New Jersey law reflects the same basic principle in the context of public scrutiny. In Tarus v. Borough of Pine Hill, the New Jersey Supreme Court held that there is a common law right to videotape a municipal council meeting, subject to reasonable restrictions. The Court also made clear that those restrictions must be neutral and reasonable, and it rejected ad hoc restrictions that were used to block a critic from recording public meetings.

That is an important standard for local government. Reasonable rules to maintain order are one thing. Vague rules, selectively applied rules, or rules that function more as deterrents than as neutral safeguards are something else entirely. When residents are left wondering whether speaking up, recording, or questioning government will expose them to punishment, the law is no longer serving the public. It is pressuring the public.

As policymakers, we have a duty to prevent that from happening. We are not elected merely to pass laws. We are elected to make sure those laws respect constitutional boundaries and do not chill the very rights we are sworn to protect. That means writing with precision, limiting discretion, and making sure enforcement is fair, neutral, and understandable before the first resident is ever forced to defend himself in court.

Because once a law becomes so vague, and the penalties so severe, that people are afraid to exercise a protected right, the damage is already done. The right may still exist on paper. But in practice, it has been weakened by fear.

- Michael Bollard, Committeeman of Mansfield Township

"The Chilling Effect"