Should judicial voices be heard? New directions on freedom of expression from supranational and national courts

Abstract

Legal systems have traditionally imposed starker limitations on freedom of expression of judges compared to ordinary citizens. And for good reason: to safeguard judicial independence, impartiality and public trust in the judiciary. The recent rule of law developments in Europe and worldwide have rekindled the dilemma of guaranteeing free speech to judges. The rule of law crisis has led many judges to speak out and protest against the attacks of autocratic governments targeting judges and courts. Social networks emerged as the new digital marketplace of ideas with all if its vices and virtues. The growing role of courts in the society and in particular, judicialisation of politics, have expanded the range of topics of adjudication and increased the instances where courts deal with much spicier disputes than ever before. These developments have triggered an unprecedented wave of cases concerning freedom of expression of judges before European and national courts. This has resulted in important evolution in the caselaw and solf-law instruments. Legal academia has not yet properly addressed these developments. They provide fertile ground for scholarly discussion, especially, as there is no consensus on the precise margins and limitations of judicial free speech among the different legal systems in Europe, let alone globally. Are we witnessing a call for a re-examination of the role of judiciary and judicial conduct on and off the bench or do we need only minor adjustments to the existing norm? What are the risks of leaving more freedom (of expression) to legal professionals and what are the advantages of exploring new means to defend this fundamental EU value? What is the role of both European and national courts in shaping the standards of freedom of expression of judges and how judicial interaction techniques contribute to safeguarding the rule of law? This panels does not envisage to provide clear-cut answers to the questions raised. Instead, it encourages and facilitates the scholarly discussion, necessary to gain new insights allowing to properly grasp this fascinating topic.

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