Syracuse University Magazine

Speaking Out

Professor Thomas M. Keck, the Michael O. Sawyer Chair of Constitutional Law and Politics at the Maxwell School, has long been fascinated by issues that divide Americans and how the courts respond to such disputes. In his 2014 book, Judicial Politics in Polarized Times (The University of Chicago Press), Keck examined litigation over the past two decades involving abortion, affirmative action, gay rights, and gun rights. Now, Keck has turned his attention to clashes over free speech—and he’s rounding up cases from around the globe. “There’s lots of interesting stuff going on,” he says. “There are similar free speech disputes happening throughout Europe, in Latin America, in sub-Saharan Africa, in Australia, all over the place.” For example, legal disputes about whether and when racist speech can be banned have been reprised in a wide range of courts across the United States, Canada, Australia, France, Germany, the United Kingdom, and elsewhere.

With the support of a three-year, $420,000 grant from the National Science Foundation, Keck launched the project Comparative Free Speech Jurisprudence, in collaboration with about a dozen other scholars. As part of a monumental undertaking, the group has begun to gather an estimated 3,000 to 4,000 free expression decisions and related primary source documents from constitutional courts worldwide, as well as 50 U.S. state high courts. The documents will be compiled in an accessible database that will allow them to examine how these courts have responded to free speech claims brought by people from across the political spectrum, from the extreme right to the extreme left and anywhere in between, from the powerful elites to the man on the street. “It’s looking at the universe of constitutional democracies and, within that universe, those where their constitutional ideals and institutions have developed enough to start somewhat regularly enforcing a principle of freedom of speech—and it’s those patterns of enforcement that we are interested in,” says Keck, who received additional support through the Maxwell School’s Tenth Decade Project.

According to Keck, the research team has identified 184 countries with written constitutions that include a free speech provision, but not all of these countries are democracies. Among those, they have so far identified 25 whose national high courts (basically equivalents to the U.S. Supreme Court) have well-developed bodies of free speech jurisprudence. This list includes the high courts of Argentina, Australia, Japan, Norway, and South Africa, and the team is also investigating the free speech jurisprudence of some key international courts, particularly the European Court of Human Rights. Since the courts’ rulings encompass 15 different languages, one of the initiative’s biggest challenges will be getting the documents translated into English. “The Norwegian Supreme Court has a history of judicial review that is almost as old as the U.S. Supreme Court,” Keck says. “But it’s all published in Norwegian, and these decisions have been almost entirely ignored by U.S.-based courts scholars.”

They will initially look at rulings comprising electoral speech, extremist speech, sexually explicit speech, religious speech, and what Keck calls “economic” speech—cases, for example, brought by for-profit corporations or labor unions. As the project evolves, Keck says the team will consider other categories that may wander into free speech territory, such as contempt of court decisions. “Sometimes courts are biased, and people have the right to say so in public,” Keck says. “And if the judges can lock them up, that’s a problem for democracy.”

The project will also explore how the courts cite one another in their decisions. While it’s rare among U.S. courts to look to a foreign court’s ruling, Keck says, it’s fairly common for U.S. court decisions to be cited elsewhere. “One thing our data collection will help people study is whether, when, and how constitutional ideals migrate from courts in one country to courts across borders,” he says. —Jay Cox

irving-feiner-tully-event-2.jpgThe late Irving Feiner ’84 speaks at the opening of the Tully Center for Free Speech at the New-house School in 2006. As an SU undergraduate in 1949, Feiner was charged with disorderly conduct for giving a pro-civil rights speech in downtown Syracuse. In 1951, Feiner’s case landed in the U.S. Supreme Court, which declined to protect his free speech rights, in contrast to a 1949 decision that protected the free speech rights of Arthur Terminiello, a suspended Catholic priest who had made a racist speech in Chicago. One goal of Professor Keck’s project is to assess how courts have responded to free expression claims filed by differently situated actors. The project team hopes to determine which courts, if any, have provided consistent treatment of diverse claims within the United States and elsewhere.