A força da não violência no combate ao discurso de ódio: uma alternativa à criminalização

Abstract

The 1988 Constitution, after a long period of dictatorship, implemented norms guaranteeing freedom of expression and the fight against discrimination. However, in the face of the phenomenon of hate speech, these constitutional values come into conflict. As a result, a debate has emerged both in Brazil and in other democracies concerning the need to criminally punish hate speech, which, for this purpose, entails restricting the constitutionally guaranteed exercise of freedom of expression. In Brazil, through Lei nº 7.716/1989 and Ação Direta de Inconstitucionalidade por Omissão nº 26 (ADO 26), the State has chosen to address expressive conduct with discriminatory intent through criminal law. This option, however, raises concerns about the risks of censorship and the erosion of the fundamental right to the free manifestation of thought, as provided for in Article 5, item IV, of the Brazilian Constitution. In this context, the present study seeks to identify alternatives to criminalization for confronting hate speech. To this end, Judith Butler’s reflections on the politics of the performative—grounded on John Langshawn Austin's speech act theory—and antidiscrimination law, as presented by Adilson José Moreira, are examined as potentially suitable measures for achieving this objective. By combining these approaches as nonviolent strategies, preferable to the use of the State’s coercive power, the study argues for the cautious adoption of criminal law as a last resort to inhibit discriminatory expressions. Finally, some general considerations are outlined regarding the circumstances under which the punishment of speech may be justified.