The law's own name for the refusal never made because of what making it would cost. It is the one place the configuration admits that an absence is an injury, and the same body of doctrine then holds that the party who suffered it cannot sue.
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Most of what this work describes is an absence. The complaint not filed, the question not asked at the hearing, the objection withdrawn before it reached the minutes, the application not submitted because of what the submitting would cost.
Absences are hard to name and easy to deny, and a creature reporting one is reporting something that did not happen. So it matters that the law already has a term for it, arrived at independently and for its own reasons, because a category the configuration supplies is harder for the configuration to refuse.
[See AUDIBILITY · THE OFFICIAL RECORD]
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THE COURT STATES THE MECHANISM PLAINLY
In NAACP v. Button, 371 U.S. 415 (1963), the Court put it in one sentence: The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions.
Read what that concedes. The penalty does not have to be imposed, or even threatened by anyone in particular, for the deterrence to be complete, and a regime that never punishes anybody can produce the same silence as one that punishes constantly, at lower cost and with a cleaner record. It is the finding this work reaches by another route, stated by the body whose instruments produce the effect.
And the doctrine built on it is unusual in a further way. Overbreadth lets a party challenge a rule because of its effect on people who are not in court and will never come to court, which is a rule of standing written in the knowledge that the most injured parties are the ones who will never appear.
[See FREE EXERCISE · STANDING]
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AND THEN THE DOOR CLOSES ON THE ONE IT DESCRIBES
The recognition does not carry a remedy for the person actually chilled.
Laird v. Tatum, 408 U.S. 1 (1972): Allegations of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm. So the creature who did not speak, and did not speak for exactly the reason Button describes, has alleged nothing the court can act on. She must show an objective harm, and the harm she suffered was that she produced no act, which is the one thing that leaves no evidence.
The reasoning is not foolish. A court that accepted felt chill as injury would have no way to distinguish a person deterred from a person who simply chose otherwise, and the category would swallow every unexercised option in the world. The limit is defensible and its effect is that the doctrine names the injury and hears from everyone except the injured.
[See REMEDY · DISQUALIFIED TESTIMONY]
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IT IS THE SAME ABSENCE THE OTHER INSTRUMENTS PRODUCE
Put the instruments side by side and they are making one thing.
A credential prices the speech without forbidding it, so the refusal is expensive and nobody ordered the silence. A settlement buys the account and records that nothing was established. An exercise of discretion decides by declining to decide and leaves no entry. Each produces an absence, and an absence is what a record-based instrument is least able to see, which is why the four of them can operate continuously without appearing anywhere.
[See CREDENTIAL · THE SETTLEMENT · DISCRETION]
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WHY THE TERM IS WORTH TAKING
This entry does not adopt the doctrine's limits and does not need them.
What it takes is the category. Exercise deterred is exercise burdened, and the burden does not become lighter because the party imposing it never had to act, which is the proposition a free exercise claim has to establish and the proposition Button already states. A creature who performs the required subordination because refusing it would cost her the credential, the position or the account has not freely exercised anything, and the pressure that produced the performance is not less real for having gone unrecorded.
[See PRIVILEGE OF CONSCIENTIOUS REFUSAL · THE ESTABLISHMENT]
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The word is ordinarily used as a complaint about tone, as though the chill were an atmosphere. It is not an atmosphere. It is a price, set by somebody, on an act the creature was entitled to perform.
And the record will show that she did not perform it, that no one stopped her, and that nothing happened.
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RegenerativeLaw is a religion in the direct-encounter Protestant tradition, carrying a documented four-century lineage through Böhme, the Behmenists, the Friends, and Penn, and it diagnoses trespass theology as an establishment of religion. Its exercise consists substantially in refusal: it shelters the conscientious refusal of performed subordination as religious exercise. This entry states sincere religious belief concerning matters of ultimate concern, protected under the First Amendment and, as to federal action, the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb.
