Editor: Johan Chiritt

Origin of Freedom of Expression

It is complex to pinpoint precisely when the right to freedom of expression emerged, as it is a subject that permeates the debates of medieval scholastic philosophy itself. At that time, there was no talk of "freedom"; the discourse was focused on what constitutes free will, the gift God granted us of making our own decisions. There are two major questions surrounding this topic: Does free will exist, or are all our actions predetermined? If it exists, what are the limits of this gift given by the Creator? 

This discourse on free will unfolded into a discourse on liberty in the 14th century. Because it was a gradual shift, many thinkers, including those of the Enlightenment, used the Bible itself as a source of knowledge, as observed by Michel Villey:

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(…). Well, a third of Hobbes' Leviathan revolves around Holy Scripture. Locke based his human rights (property – liberty – resistance to oppression) on the first law of Genesis . The “rights of man,” still alive today, originate from a theology. (VILLEY, 2014, p.89)

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The right to freedom of expression, as well as other basic human rights, gained a legal dimension with the French Revolution, moving from mere theoretical debate to being incorporated into the body of law with the Declaration of the Rights of Man and of the Citizen. In fact, this right was so dear to the French revolutionaries that they dedicated two articles solely to freedom of expression in the aforementioned declaration, as follows:

Article 10 - No one may be disturbed for their opinions, including religious opinions, provided that the expression of those opinions does not disturb the public order established by law.
Article 11 - The free communication of thoughts and opinions is one of the most precious rights of Man; every citizen may therefore speak, write, and print freely, but shall be held accountable for abuses of this freedom under the terms provided by law. (Available at: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.ufsm.br/app/uploads/sites/414/2018/10/1789.pdf). 

Beyond providing a legal dimension, the Declaration of the Rights of Man and of the Citizen represents the complete secularization of the debate on freedom of expression, which continues to this day.

Let's analyze how freedom of expression is embedded in the Brazilian legal system. For the purposes of this article, this discussion will be limited to an analysis of freedom of expression in the 1988 Constitution, as well as the current debate on freedom of expression expressed in Supreme Court Case 837.

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the freedom of Eexpression in the 1988 Constitution

The right to freedom of expression is not limited to simply allowing everyone the possibility of expressing their thoughts, as enshrined in Article 5, items IV and IX of the Brazilian Constitution . There is a legal framework that sustains this right, either by qualifying it or by attributing new dimensions to this fundamental right.

Naturally, in order for a person to develop their own thinking and create their own ideas, it is necessary that they be granted access to information, as stipulated in article 5, item XIV of the Brazilian Constitution . Without access to information, creative freedom becomes limited, lacking content, because censorship yields nothing but the confirmation of a restriction.

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It is not enough to have access to information; it is necessary to allow the free circulation of ideas, without any type of censorship, as stipulated in Article 220, paragraphs 1 and 2 of the Brazilian Constitution . While defending access to information ensures that the idea expressed is known to the public, the prohibition of censorship protects the individual expressing their thoughts.

Beyond the circulation of ideas, freedom of expression also protects the possibility for people to express their faith and beliefs, as stipulated in Article 5, VI of the Brazilian Constitution.

As mentioned above, all these constitutional provisions aim, in addition to broadening freedom of expression to encompass not only the freedom to express ideas, but also beliefs and faith, to ensure it has a solid foundation. Freedom of expression would be compromised if people could not freely express their ideas.

As part of a system, freedom of expression must also be seen as one of the structuring rights of the democratic rule of law itself. Democracy needs the free flow of ideas in order to thrive. There is no democracy, properly speaking, without full freedom of expression. 

Despite the importance of freedom of expression, this right is not absolute; there are limitations to its exercise. The Constitution itself already sets some boundaries, such as the prohibition of unjustifiable anonymity. By preventing people from expressing themselves without revealing themselves, the Constitution allows for the accountability of those who exceed the legitimate exercise of freedom of expression.

It is precisely about the limits of freedom of expression that topic 837 of the STF (Supreme Federal Court) deals with, which we will address in the following section.

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Topic 837 of the STF (Brazilian Supreme Court): The Limits of Freedom of Expression

As mentioned by Minister Gilmar Mendes in his Course on Constitutional Law, the limits to freedom of expression are not only enshrined in the Constitution, but also result in conflict between this fundamental right and other equally basic rights.

Brazilian Supreme Court Case 837 is on track to define one of the limits of freedom of expression, as it deals precisely with the conflict between the right to freedom of expression and the right to the inviolability of honor and image. Beyond analyzing the interaction between these rights, the case also aims to establish the circumstances under which publication should be prohibited, as well as whether the author should be convicted for the publication. Let's look at the title:

Defining the limits of freedom of expression in contrast to other rights of equal legal hierarchy – such as the inviolability of honor and image – and establishing parameters to identify cases in which publication should be prohibited and/or the declarant condemned to pay moral damages, or even other legal consequences.

The factual context in which this issue arises is a lawsuit for damages filed by the sponsors of the Barretos Rodeo Festival against PEA – Projeto Esperança Animal (Animal Hope Project). According to the sponsors, the publications made by PEA regarding animal abuse at the Barretos rodeos were false and, in addition to damaging the sponsors' reputation, made the rodeo economically unviable.

Therefore, on one hand there is the freedom of expression of PEA (People for the Animal Welfare) in exposing the alleged mistreatment of animals perpetrated by the rodeo sponsors, and on the other hand there are the sponsors, who claim a violation of their honor and image, not to mention the economic losses suffered due to the publications.

The Supreme Federal Court (STF) has not yet decided on the case; however, on September 18, 2024, the trial began, during which the parties and amici curiae were heard . The case is currently suspended, awaiting the opportune moment to be scheduled again.

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References:

VOLVELLE, Michel, The French Revolution 1789–1799 , 2nd ed. rev. – São Paulo: Editora Unesp, 2019

VILLEY, Michel, Questions of Thomas Aquinas on Law and Politics . 1st ed. São Paulo: Editora WMF Martins Fontes, 2014.

MINOIS, George. History of the Middle Ages: a thousand years of splendor and misery. 1st ed. São Paulo: Editora Unesp, 2023.

HOBSBAWN, Eric J. The Age of Revolutions 1789-1848 . 6th ed. Rio de Janeiro: Paz e Terra, 1977.

MENDES, Gilmar Ferreira, Course on Constitutional Law . 15th ed. São Paulo: Saraiva Educação, 2020.