judge cannot relativize principles using pretexts

Last year, in a trial that resulted in the prior censorship of a documentary by the media company Parallel Brazila reservation made by the Minister of the Superior Electoral Court (TSE) Cármen Lúcia when agreeing with the veto of the film went down in the history of the Brazilian Judiciary: “I see this as a very exceptional situation”, he stated.

This and other events in recent years in the Judiciary have raised a question in the legal community and in the media: are there circumstances that could justify a restriction of freedom of expression outside of what the law already provides? For the debaters of the first panel of the “Freedom of Expression – The Essential Debate” event, the answer is no.

The event was organized by People’s Gazette and by Ranking of Politicians with the support of the Liberal Institute, the Paraná Lawyers Institute and the National Federation of Lawyers Institutes (Fenia). Influential voices on the topic of freedom of expression in Brazil and around the world participated in six panels on the 28th and 29th of September.

“There is no need for an exception that is not within the constitutional dictates. Not in a democracy – at least the typical, liberal and constitutional one. It is necessary to create clear rules to be followed. In case of political tension, the one who resolves this is politics “, stated federal deputy Marcel van Hattem (Novo-RS) when opening the discussions.

American Todd Henderson, a specialist in Corporate Law and professor at the University of Chicago, highlighted that “the best medicine for lies is the truth”, and not the suppression of speech. He highlighted that the temptation to create more exceptions to freedom of expression has increased with the internet.

“The problem is universal, it is not specific to Brazil and it will not end soon. The problem is that the disruptive power of new technologies has redefined who can be heard and by whom. And this has been amplified in a mind-boggling escalation. There are new opinions emerging spreading around the world”, commented Henderson.

For him, the situation tends to worsen, bringing the risk of more restrictions emerging. “Artificial intelligence and fakes, and the ability for people to put words in other people’s mouths and make them sound true, this technology is undergoing frantic advancement, and there is nothing any of us can do to stop it. Then it will get worse. And the reaction, historically, to any new technology is always fear and despair”, recalled the expert, citing the historical examples of the invention of the press and radio, which also resulted in attempts to exceptionally relativize the principles of freedom of expression.

The only remedy against the proliferation of “exceptions” is to preserve the principles

Henderson considers that the only way to avoid the proliferation of exceptions to freedom of expression is to fight to preserve principles, regardless of who is in power.

“To say that political leaders, whether they are the courts in Brazil or politicians in my country, should be able to regulate speech is to say that they need to determine what the truth is. And that is very dangerous. The government has a monopoly of violence. They can take away my freedom. They can oppress the people. And the only people, the only entity in Brazil or in the world that determines what is true is all of us together, in the market of ideas”, he stated.

Patricia Blanco, president of Instituto Palavra Aberta, also highlighted the importance of ensuring that constitutional principles are preserved. “Freedom of expression is not just the right to speak. It is also the right to hear others express their positions, even if those positions are not ones that I accept or share,” she commented.

Argentine jurist Fernando Toller, professor of Constitutional Law at the Austral University, said he was surprised by the exceptions to freedom of expression created by the Brazilian Judiciary when studying the cases proposed for debate at the event. “The judicial system paternalistically treats speech as something toxic. ‘You can’t consume this because you’re going to die,’ as [se as pessoas fossem] babies,” he commented.

For the Judiciary to create exceptions out of fear that news will influence the public debate, for him, it is nonsense. “What do you do in a presidential election if you don’t try to influence the population by trying to attract them to your own ideas?”, he asked.

Toller classified the case of censorship as People’s Gazette for the post relating President Lula to the Nicaraguan dictator Daniel Ortega as “barbaric”.

The best way to avoid the proliferation of exceptions, in Henderson’s view, is for people to “value freedom of expression in their hearts”, more than in laws or in judicial and political decisions.

“Freedom of expression will always be under threat from the interests of powerful people who want to suppress ideas for their own benefit,” he commented. “Only if people really feel the importance of the concept of the market of ideas will it survive. This is a project that goes far beyond a bill. It involves convincing each new generation that this is something essential for human flourishing, because the winds will blow stronger at times, and there is a risk that they will put out this fire. And we really need to make sure that the embers of this fire maintain their strength in people’s hearts.”