The “hinge” of democracy: freedom of expression as reasonable certainty and the limits of constitutional jurisdiction in Brazil

Abstract

This article analyzes the problematic arising from the tension between the need to defend institutions and the current expansive praxis of the Brazilian Federal Supreme Court (STF), specifically within the scope of original jurisdiction inquiries that have imposed atypical restrictions on freedom of expression. The objective is to demonstrate how this action, under the pretext of democratic protection, ends up compromising the logic of the system. The research hypothesis maintains that freedom of expression functions as a "hinge proposition" in the Wittgensteinian sense: a reasonable certainty that acts as the indispensable logical substrate for assessing political truth, the suppression of which paralyzes the democratic "language game" itself. Methodologically, a qualitative approach and deductive method were adopted, through bibliographic review, jurisprudential analysis, and comparative law. The results indicated that the Court's proactive stance, by flexing this pillar through expansive interpretations and the creation of restrictions not provided for by law, generates a dangerous state of legal uncertainty and promotes a harmful "chilling effect" on legitimate dissent. The analysis confronts the Brazilian scenario with the paradigmatic Compact case of the German Federal Administrative Court (BVerwG), which imposes strict limits on speech prohibition, and integrates the internal critical perspective of former Justice Marco Aurélio Mello, concluding that safeguarding democracy requires a stance of greater judicial self-restraint from the STF, reaffirming the centrality of the legislature in deliberating on the limits of the sayable and preserving the structural integrity of freedom of expression as a democratic "hinge".