Document Type
Article
Date
5-25-2016
Keywords
freedom of expression, free speech, contempt of court, judicial review, constitutional courts, international courts, European Court of Human Rights, US Supreme Court
Disciplines
Political Science
Description/Abstract
The willingness of constitutional courts to extend free expression protection to speech that criticizes the performance and/or character of courts and judges could be a more widely used benchmark for assessing the commitment of various democratic jurisdictions to free expression. In a democracy, political institutions (and the leaders who occupy them) must tolerate criticism of their decisions (and their competence and character); this rule applies to courts no less than to legislatures and executives. Indeed, this rule is a key indicator of courts’ democracy-reinforcing character. In this paper, we trace the emergence of this commitment in English and American contempt-of-court case law and then assess whether and to what degree constitutional courts in other jurisdictions have followed a similar path. We close with a systematic analysis of all judgments issued by the European Court of Human Rights (ECtHR) on the merits of Article 10 free expression claims involving anti-judicial speech acts. We conclude that the ECtHR, like most constitutional courts in the world, has yet to articulate a standard that adequately distinguishes between legitimate commentary on judicial performance and illegitimate threats to judicial independence and the rule of law.
Recommended Citation
Keck, Thomas; Metroka, Brandon; and Price, Richard S., "The Judicial Protection of Anti- Judicial Speech" (2016). Political Science - All Scholarship. 8.
https://surface.syr.edu/psc/8
Creative Commons License
This work is licensed under a Creative Commons Attribution 4.0 International License.
