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
Acknowledgements
Originally published in American University International Law Review, vol.33, no. 4, 2018, pp. 693–769.
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.
