"Chilling effect," as I mentioned at one point in my class ramblings, is a factual conclusion whose consequence lies on the side of standing to sue, rather than substantive liability. The creation of internal impediments to free speech, encouraging self-censorship, is an outcome of some government regulation of speech that entitles those who are not apparently within the ambit of the regulation or subject to any direct interference to bring suit nonetheless, as a result of the "overbreadth" of the regulation "chilling" constitutional expression at which it is not aimed.

So, if there is a First Amendment claim to be made against forms of mass but not uniform government surveillance, parties who cannot prove themselves to have been targeted (as, presumably, they would have to show in bringing Fourth Amendment claims) might have standing to assert claims not certain to be their own under the doctrine of overbreadth, based on the effect in chilling protected speech.

But chilling is not in itself a cause of First Amendment harm. A regulation must be narrowly tailored and resort only to the least restrictive means, but if the object and the means are constitutional, the presence of some unnecessary restriction isn't therefore fatal, or at least that would seem to be what the existing rationales imply.

So either the essay directly faces that analysis and provides a reason why chilling effect is a source of constitutional liability in itself, or there need to be a modification and redirection of the next draft towards standing and away from the merits.