The Judicial Protection of Anti-Judicial Speech
78 Pages Posted: 25 May 2016 Last revised: 27 Jul 2018
Date Written: January 3, 2018
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.
Keywords: freedom of expression, free speech, contempt of court, judicial review, constitutional courts, international courts, European Court of Human Rights, US Supreme Court
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