CRIMINALIZATION OF FREE SPEECH IN A LIBERAL DEMOCRACY

Resumo

Objectivo: It has the objective to discuss limits to freedom of expression from a liberal democracy perspective. Also to see how different instruments are tested, even the criminalization of some kinds of speech. Justificativa da relevância temática: When it is discussed about limits to freedom of expression it seems a little confusing the various rationalities that are used in court decisions mostly because these discussions are made in relation to Constitutions that mix liberal e social values. The idea of this article to talk from a liberal perspective is to try to develop coherent analysis and arguments. For example, there are already courts in Brazil forbidding some kinds of jokes in stand ups considering that it is hate speech. In other contexts, some comments even without any intention might be equivalent to a hate crime. In even other cases, the courts are discussing if it is offensive to call somebody a communist or fascist. Objetivos: The objectives of this research are: a) conceptualize the concept of freedom of expression in a historical perspective according to a liberal ratio; b) conceptualize the concept of hate speech in a historical and critical perspective; c) conceptualize the concept fake news in a historical and critical perspective; d) discuss how this debate is being held in Brazil and how judicial measures are being applied on this matters. Metodologia: It involves a qualitative analysis based on bibliographical review and case studies. The bibliographical review involves authors that lead their fields to define the fundamental concepts involved. From this well developed conceptualization we hope to make a better discussion around the rationale regarding limits to freedom of expression from a liberal democratic perspective. Hipótese: The hypothesis of this research is that it lacks clarity and rigor in the rationale of the discussion around limits to freedom of expression considering that sometimes different theories are used to justify an opinion. Maybe, in fact, the real approach on this matter from the courts might be pragmatic even though apparently it seems to follow some kind of theory.