The Judicial Protection of Anti-Judicial Speech

78 Pages Posted: 25 May 2016 Last revised: 27 Jul 2018

Thomas M. Keck

Syracuse University - Maxwell School of Citizenship and Public Affairs

Brandon Metroka

University of the Incarnate Word

Richard S. Price

Weber State University (WSU)

Date Written: January 3, 2018

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.

Keywords: freedom of expression, free speech, contempt of court, judicial review, constitutional courts, international courts, European Court of Human Rights, US Supreme Court

Suggested Citation

Keck, Thomas M. and Metroka, Brandon and Price, Richard S., The Judicial Protection of Anti-Judicial Speech (January 3, 2018). American University International Law Review 33(4): 693-769. Available at SSRN: https://ssrn.com/abstract=2783491 or http://dx.doi.org/10.2139/ssrn.2783491

Thomas M. Keck (Contact Author)

Syracuse University - Maxwell School of Citizenship and Public Affairs ( email )

Syracuse, NY 13244
United States

HOME PAGE: http://faculty.maxwell.syr.edu/tmkeck/

Brandon Metroka

University of the Incarnate Word ( email )

4301 Broadway
AD 378
San Antonio, TX 78209
United States

Richard S. Price

Weber State University (WSU) ( email )

3802 University Circle
Ogden, UT 84408
United States

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