As fronteiras da liberdade de expressão no Estado Democrático de Direito: o desafio de falas que oprimem, de discursos que silenciam

Abstract

The thesis analyzes the relationship between freedom of expression and hate speeches. This debate, which is indeed crucial in modern constitutional democracies, instigates a reflection on how far a Democratic State may reach without refusing its own opening. The research investigates whether it is legitimate to establish limits to the freedom of expression in a Democratic State, which recognizes itself as open and plural. In other words, public demonstrations of deep scorn and hatred towards specific social groups, be it due to gender, color or origin must be confronted with more speech or must it be limited and accounted for? This thesis supports the idea that in constitutional democracies there is no legitimate space for offense, humiliation or propagation of radical hate in the name of free speech. Having our conceptual presuppositions as a starting point, we attempt to show that the meaning of constitutional democracy; of freedom of expression and of hate speech is immersed in historical struggles for the recognition of rights, visibility and voice. Thus, freedom of expression cannot be translated as an instrument for oppression and silence, being, therefore, subject to limits, but not censured. Namely, there is a prevalence of fundamental rights of the individuals against the State, but also, in a horizontal dimension, there is the application of these rights in relationships between individuals, acting as a condition of possibility for democracy itself. In a further step, the thesis makes a comparison between the current position of the Supreme Courts understanding on the First Amendment and on the right of free speech and that found in Brazil. Finally, in a third part, we approached the International Law of Human Rights, its history, documents and decisions on the relationship between free speech and hate speech, and its concern with the dissemination of hate speeches or hate messages and other racist propaganda. We emphasized the argument according to which there is no such a thing as an absolute freedom of expression. As abuses may occur, sanctions may be applied. In sum, responsibility is the other inseparable face of free speech.