STF considers hate speech against Jews and Muslims a crime

Since the outbreak of the new conflict between Israel and Hamas, social networks have been infested with demonstrations that seek to justify terrorist violence against Jews and some that attribute the attacks to the Islamic religion itself. The predominant understanding in the Federal Supreme Court (STF) is that both types of speech are criminal.

In recent years, Minister Alexandre de Moraes has committed himself to combating “attacks” on colleagues, the STF and other institutions – in general, offenses and supposed threats that, in theory, would pose a risk to the independence of the Judiciary and the democratic regime itself. . Insults, insults, affronts, bravado, provocations and attempts to intimidate ministers began to be labeled, in a generic and non-technical way, by Moraes and other colleagues, as “hate speech”.

But before that, however, in judgments considered historic, the Court discussed the meaning of this term in more depth when it ratified convictions for racism against those who propagated anti-Semitic ideas, in one case, and criticism of Islam, in another.

Author of books that denied the Holocaust was convicted of racism

In 2003, the majority of ministers upheld the conviction of Siegfried Ellwanger, a Brazilian and author of books that denied the Holocaust and expressed contempt for Jews, especially Zionism, a movement that emerged in the 19th century and influenced the creation of the State of Israel in 1948.

“Writing, editing, publishing and selling books ‘supporting prejudiced and discriminatory ideas’ against the Jewish community constitutes a crime of racism subject to the non-bailability and imprescriptibility clauses”, the STF decided at the time.

The crime of racism is defined in the law as the act of “practicing, inducing or inciting discrimination or prejudice based on race, color, ethnicity, religion or national origin”. It is one of the few crimes that does not have a statute of limitations, that is, it can be punished even long after it has been committed.

One of the great contributions of this judgment was to reject the idea that race would be a concept linked to human biotypes, according to characteristics of skin color, shape of the nose, hair, etc. The Court understood that racism is the attempt to subjugate, exploit or eliminate some human group, for historical, social or political reasons. The incitement or inducement of this conduct could be classified as hate speech, which also constitutes the crime of racism.

At the time of the trial, a minority group – formed by Moreira Alves, Carlos Ayres Britto and Marco Aurélio Mello – voted against Ellwanger’s conviction, as they considered that there were no racist or prejudiced manifestations against Jewish ethnicity or religion, but rather revisionism. history of Nazism and a political critique of Zionism.

Even though they considered such views absurd or detestable, the three considered them to be protected by freedom of expression. “I did not identify any manifestation of inducing hateful prejudice in the reader. Obviously, the work defends an idea that would cause immediate rejection by many, and could even say that it would find some followers, but defending an ideology is not a crime and, therefore, cannot be punished. The fact that someone writes a book and others agree with the ideas expressed there does not mean that this will cause a national revolution”, stated Marco Aurélio at the time.

Despite this, the majority understood that the anti-Zionist ideas in the books were, in essence, anti-Semitic, and that this would violate the constitutional principles of human dignity, equality and pluralism.

“Publications that abusively and criminally exceed the limits of scientific inquiry and historical research, degrading it to the primary level of insult, offense and, above all, encouraging intolerance and public hatred against Jews (as recorded in the case currently being examined), they do not deserve the dignity of constitutional protection that ensures freedom of expression of thought”, stated Celso de Mello, currently retired.

Gilmar Mendes warned, at the time, of the resurgence of anti-Semitism in Europe, which led several countries to ban Nazi parties and pass laws criminalizing the trivialization, denial or justification of the Holocaust. “An understanding of fundamental rights that is not based solely on a liberal conception certainly cannot give rise, within the scope of the right to freedom of expression, to anti-Semitic manifestations as intense as those that emerge from the case”, he said.

At the beginning of last year, the minister reaffirmed this understanding when criticizing statements by podcast presenter Bruno Aiub, known as Monark, who defended the possibility of a Nazi party existing in Brazil, under the argument that his exposure would contribute to public criticism of this ideology. “Any apology for Nazism is criminal, execrable and obscene,” Gilmar Mendes posted online.

Alexandre de Moraes echoed: “the Constitution enshrines the binomial: freedom and responsibility. The fundamental right to freedom of expression does not authorize the abominable and criminal apology for Nazism”, published the minister.

Months later, Monark was banned from platforms for criticizing the STF.

Criticism of Islam is also a crime, according to the STF

In 2018, the Second Panel of the STF upheld the racism conviction of pastor Tupirani da Hora Lopes, leader of the Geração Jesus Cristo church for heavy criticism he made of Islam and also of the Catholic, Jewish, spiritist, satanic, Wicca, Umbanda and religions. other evangelical denominations. For most ministers, freedom of religious expression does not allow expressions of intolerance against other people’s beliefs.

In a video published on the internet, Tupirani said that he would throw books on “occult sciences” in the trash, about ancient sorcery and high magic and that in these sects people suffer, suffer, are raped, raped, live in fear, anguish and affliction. Afterwards, he stated that Satanism is “scam and hypocrisy”, and that it would be “a murderous religion like Islam”.

Based on this, ministers Dias Toffoli, Ricardo Lewandowski, Gilmar Mendes and Celso de Mello maintained their conviction. The only one to disagree, Edson Fachin, rapporteur of the case, voted against the conviction, as he understood that there was no incitement to elimination, acts of violence or even restrictions of rights against adherents of other religions in the preaching.

For Fachin, religious freedom allows people to publicly say that their religion is superior to others, including criticizing them, in order to convince them to adhere to another belief. The limit would be in demonstrations that preach the “exploitation, enslavement or elimination of the individual or group considered inferior”, which would not have occurred in this case.

“In the clash between religions, tolerance is measured based on the methods of persuasion (and not imposition) used. In this sense, in the religious context, the attempt to persuade through faith, without violence or directly aimed at attacking human dignity, does not deviate from the guidelines of tolerance to the point of legitimizing incrimination in the criminal field,” he stated.

Therefore, for him, Tupirani’s preaching, although “undoubtedly intolerant, pedantic and arrogant”, would not be criminal, hence the vote for the pastor’s acquittal.

The other ministers, however, considered that the inferiority of other religions is reason enough to convict for the crime of racism, characterized as the act of “practicing, inducing or inciting discrimination or prejudice based on race, color, ethnicity, religion or national origin” .

Toffoli stated that Tupirani’s preaching “directly affects the other’s right to belief and the integrity of his faithful’s conduct”. Religious freedom, for him, presupposes respect for other people’s beliefs.

“The limits to the right to freedom of belief (and to profess it, naturally) are the same, whatever the faith considered, not admitting that the purpose of winning believers ensures, or to any extent legitimizes, the disqualification of any other belief (or disbelief)”, he said. Thus, speech with “the deliberate purpose of annihilating or belittling another religion” would be criminal.

Gilmar Mendes followed the same understanding. “Despite this freedom to profess one’s faith, in public, through worship, observance of one’s own rules and the teaching of this theological line, there must be respect for the religious ideologies of other fellow citizens without damaging the convictions of others in a vile manner. .”

Celso de Mello, in turn, considered that religious speeches that confront other beliefs cannot be admitted in democracy.

“Democratic regimes do not coexist with practices of intolerance or even hateful behavior, as one of their essential characteristics lies, fundamentally, in the pluralism of ideas and the diversity of world views, in order to make it viable, in the context of a given social formation, an inclusive community of citizens, who feel free and protected against state (or private) actions that restrict their rights for reasons of religious belief or political or philosophical conviction”, he wrote in his vote.