Thomas Moylan Keck (left) is an Associate Professor of Political Science at the Maxwell School of Citizenship and Public Affairs at Syracuse University. Erik Bleich (right) is a Professor of Political Science at Middlebury College. They recently secured funding from the National Science Foundation for their project on the political beneficiaries of free expression jurisprudence worldwide. This past week, Dr. Keck spoke with APSA about the benefits of this project and how the funding has made it possible.
You can read the abstract of the project here.
APSA: What is this project about?
Keck: The project represents a large-scale effort to identify who benefits from the judicial enforcement of constitutional free speech norms. Working with an international and interdisciplinary group of collaborators, together with a large multilingual team of research assistants, I will be identifying, locating, and gathering data on the full universe of constitutional (or quasi-constitutional) free expression holdings issued by a range of courts around the world. The full scope of the project is not yet settled, but we hope eventually to gather data on at least two dozen national high courts, along with some key transnational and subnational courts that have developed notable bodies of free speech doctrine, such as the European Court of Human Rights (ECtHR) and state high courts in the US. The list will include some courts whose free speech jurisprudence has been widely studied (such as the US Supreme Court and the ECtHR) and others whose free speech decisions have been largely ignored by scholars in the US (such as the Supreme Courts of Norway and Costa Rica). From within this large universe of cases, the research team will identify key categories of free speech disputes that have (a) recurred across multiple jurisdictions and (b) featured disputes involving differently situated speech claimants. For example, a wide range of constitutional and quasi-constitutional courts have regularly issued decisions involving religious speech, but we currently know very little about whether such courts have responded differently to speech claims filed by religious majorities, religious minorities, and secularists. Likewise for disputes involving left v. right wing extremist speech, for-profit corporations v. labor advocates, and the like.
APSA: Why is your project important?
Keck: The project is important on two levels. First, its findings will shed key light on the real-world impact of a fundamentally important principle of democratic constitutionalism and international human rights law, namely the freedom of expression. It will also assemble a wealth of documentary data (i.e., judicial opinions and associated primary source documents) that will be of broad interest to scholars, advocates, and policy-makers working on free expression issues.
Second, the project will use free speech as a window onto the costs and benefits of judicial empowerment more broadly. Democratic state builders worldwide regularly argue about whether and how to empower judicial institutions to enforce fundamental constitutional norms, while ensuring that these newly empowered institutions do not themselves become threats to such norms. Recent decades have witnessed significantly increased scholarly attention to the phenomenon of judicial empowerment, but scholars remain sharply divided over whether and when courts serve to provide effective protection for the rights of relatively powerless minorities or tend instead to advance the interests of already entrenched power holders. Because free speech is a near universal feature of democratic constitutionalism and international human rights law (currently guaranteed in writing by 184 national constitutions and several key international human rights treaties), and because it is regularly invoked by all variety of political actors (the powerful and powerless, rich and poor, left and right), it is a near-ideal testing ground for assessing existing theories of the political impact of judicial power.
APSA: What does NSF funding mean for your project and would it still have been possible without the funding?
Keck: This project would not be possible—at least not in anything resembling its current form—without the support of funders [sic] like NSF. With regard to the courts whose decisions will be included, the project seeks to move significantly beyond the “usual suspects” that have received the lion’s share of attention in the comparative courts literature in the US. As such, it requires a large team of collaborators and research assistants who have the substantive expertise and language competencies necessary to understand and analyze several thousand decisions issued by two dozen courts in fifteen distinct languages. No existing academic department in the US has the necessary expertise to do this on its own, but NSF funding enables a multi-site collaborative effort.
Thomas Moylan Keck received a B.A. in Politics from Oberlin College and an M.A. and Ph.D in Political Science from Rutgers University. He currently is in charge of the Sawyer Law and Politics Program, an initiative which promotes advancement in teaching and research in the field of law and politics.
Images courtesy of Syracuse University and Middlebury College.