Impunidade ou injustiça: a limitação de discursos de humor de teor racial no Brasil

Abstract

This research examines the relationship between freedom of expression, racism, and humorous discourse within the Brazilian legal context, with a focus on recent legislative changes and the jurisprudence of the Federal Supreme Court. The study is grounded in the hypothesis that so-called “recreational racism,” manifested through humor based on racial issues, is not protected by the constitutional guarantee of freedom of expression. To this end, it analyzes sociological concepts of race, the history of structural racism in Brazil, the relevant legislation (especially Law No. 7,716/1989 and its 2023 amendments), and landmark decisions such as the Ellwanger case. The research addresses the difficulty of legally delineating what constitutes racism and hate speech, highlighting normative and jurisprudential gaps that generate legal uncertainty and may lead to the silencing of legitimate opinions, thereby representing an arbitrary restriction on freedom of expression. In conclusion, it argues that although the Brazilian legal system repudiates racism, the absence of clear criteria for its definition creates room for divergent interpretations and presents significant challenges to the effective protection of fundamental rights.