A liberdade de expressão e o discurso de ódio no Supremo Tribunal Federal: entre os modelos norte-americano e do direito internacional dos direitos humanos

Abstract

This essay has the scope of verifying if there is a trend in the understanding of the Brazilian Constitucional Jurisdiction about free speech as a general clause and hate speech in the sense of identifying the influences of the north-american and international human rights law in leading cases decisions about this subject by Supremo Tribunal Federal. On the whole, the north-american model is the one adopted by the U.S. constitutional order. Over-inspired by the classical liberal doctrine, in which the Estate itself tends to be the greatest enemy of the citizen’s individual freedoms, the U.S. Supreme Court and the scholars attached to this thinking are about to defend a much vaste protection field to this right in a way of considering illegitimate most of its restrictions, mainly when these restriction are content-based. By the other hand, the international human rights law model conceives freedom of expression not just as a form of protection of the individual against the Estate, but also as a founding part of democracy. In this way, will be asked which of these two conceptions the Supremo Tribunal Federal tends to be closer of and in which situations this occurs. In this case, the initial hypothesis will be the one which says that in the realm of freedom of expression as a general clause, the STF aproximates itself of fundamental points of both models, whereas the Court tends to approximate itself of the international human rights law model in hate speech matter. Lastly, the theoretical benchmark hear outstandingly used will be the thinking of Owen Fiss about the freedom of expression right, dialoguing with the thinking of others scholars of free spech, such as Ronald Dworkin, Michel Rosenfeld, C. Edwin Baker, John Stuart Mill e Jeremy Waldron.