O habeas corpus 82.424/RS, a identidade constitucional democrática e a liberdade de expressão: alguns apontamentos críticos

Abstract

Starting from the case Habeas Corpus 84.424/RS, the study deals with one of the most important issues of constitutional thought: the limits of free speech. 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. In other words, the limits of free speech are not mere restrictions, but they are also condition of possibility of this fundamental right. The article tries to demonstrate the relevance of the notion of non-discrimination for the acknowledgement of rights by the Supreme Federal Court, where the constitutional meaning of equality and freedom has gradually, in midst of disputes, converged to what we call “dialogic paradigm” of constitutional law. Thus, freedom of expression cannot be translated as an instrument for oppression, being, therefore, subject to limits, but not censured. As abuses may occur, sanctions may be applied. In sum, responsibility is the other inseparable face of free speech. Here, the contributions of thinkers like Michel Rosenfeld and Jürgen Habermas were central. Finally, note that a critical-methodological line was adopted.