Free expression and judicial power in Colombia, India, and South Africa

Sandra Botero, Rachel Ellett, Thomas M. Keck, Stephan Stohler

Research output: Contribution to journalArticlepeer-review

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.

Original languageEnglish (US)
Pages (from-to)331-363
Number of pages33
JournalLaw and Social Inquiry
Volume46
Issue number2
DOIs
StatePublished - May 2021

ASJC Scopus subject areas

  • Social Sciences(all)
  • Law

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