Free Expression and Judicial Power in Colombia, India, and South Africa

67 Pages Posted: 6 Jun 2019 Last revised: 24 Jun 2020

See all articles by Sandra Botero

Sandra Botero

Universidad del Rosario Bogota- Colombia

Rachel L. Ellett

Beloit College

Thomas M. Keck

Syracuse University - Maxwell School of Citizenship and Public Affairs

Stephan Stohler

University at Albany, SUNY

Date Written: June 24, 2020

Abstract

The growth of judicial power globally has renewed scholarly debates about who benefits from increased judicial authority. Using original data, we examine the full universe of constitutional free expression decisions issued by three apex courts—in Colombia, India, and South Africa—across three categories of disputes that feature a diverse array of rights claimants. By so doing, we shed light on the limits of elite-driven accounts of judicial empowerment. We find that even where constitutional courts are empowered by elites seeking to advance their own interests, activist courts can develop a practice of rights-protection that benefits a diverse range of less-powerful actors. Moreover, regardless of whether the speech claimants are elite or non-elite actors, these three apex courts regularly rule in favor of free expression for dissenting or unorthodox speech acts. In sum, where issues are peripheral to the governing regime’s core interests, relatively powerless actors are sometimes able to use legal processes to advance their rights and interests.

Keywords: free speech, freedom of expression, judicial empowerment, comparative courts, Constitutional Court of Uganda, Constitutional Court of South Africa, Supreme Court of India, Constitutional Court of Colombia

Suggested Citation

Botero, Sandra and Ellett, Rachel L. and Keck, Thomas M. and Stohler, Stephan, Free Expression and Judicial Power in Colombia, India, and South Africa (June 24, 2020). Law and Social Inquiry, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3393063 or http://dx.doi.org/10.2139/ssrn.3393063

Sandra Botero

Universidad del Rosario Bogota- Colombia ( email )

Carrera 6 # 15-18
Bogota, Bogota
Colombia

Rachel L. Ellett

Beloit College ( email )

Beloit, WI
United States

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/

Stephan Stohler

University at Albany, SUNY ( email )

1400 Washington Ave
Albany, NY 12222
United States

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