Liberdade de rir: desafios e critérios jurídicos para a expressão humorística no Brasil

Abstract

This essay presents the hypothesis that stipulating objective criteria to support brazilian Superior Courts' decisions on free humorous manifestation is possible, verifying the cases that limit those. For doing so it uses bibliography revision, which leads to the data gathering that is necessary to perceive deep intelligence on the subject, identifying the main questions regarding it and the current state of knowledge on the matter. This piece criticizes specific literature throughout a qualitative approach. It also takes the documentary research in use as a technical procedure for data, for it has the documental source as a broad sense. It adopts both legal references and jurisprudence. The analysis of those makes theory comprehension, practical applicability, and concrete problem resolution wider, intensifying its range. Furthermore, its suggested standards are satisfyingly justified. Leaning towards Ronald Dworkin's work, this text argues that granting every citizen's freedom of speech on every matter, through humor inclusive, is what sustains democracy's legitimacy. Aiming the thesis criteria, the essay is divided into two different perspectives: the legal system and law philosophy. The first considers America's First Amendment other than the Brazilian Constitution – because it is known that the US Supreme Court takes the amendment as the decision parameter, which this research followed to inquire possible contributions to Brazilian jurisprudence. In neither legal systems, both in Brazil and in the US, freedom of expression rights are not unconditional. Nevertheless, the extent of protection granted by the two countries is different, since the north American context has a considerable liberal nod when compared to the Brazilian one, protecting that right of free expression, also presenting objective requirements that can be observed in real cases. This thesis defends, however, the argument that this freedom contributes to the criteria showcased in this opportunity. The increased challenge of conceptualization of "humor" is also noted, and it influences the case's final outcome by the judiciary. That being said, this piece offers assumptions to be noticed, such as the fact that freedom of expression is not a constitutionally granted right, but an implied one: in the freedom of speech right. Therefore, the exam of humor mustn't occur as in the already mentioned content, but in a context in which its practice violates the boundaries of that freedom. Rejecting the instrumental premise, it concludes that it fails to justify the protection of free manifestation on the humorous field. Ultimately, there are presented six requisites to be considered by the Brazilian jurisdiction when valuing concrete cases that come to the freedom of humorous expression, which are interpreted as a contribution to their decision making.