Speech against democracy: an analysis based on the conceptual definition of hate speech and the parameters of restriction on freedom of expression in the trial of Criminal Action n. 1044/DF by the STF

Abstract

In times of an information society, with fierce clashes between freedom of expression and hate speech, the role and need to preserve democratic institutions stands out. In this context, based on the deductive approach and analytical procedure, the aim is to present a conceptual understanding of the term “hate speech”, starting from the analysis of the concept advocated by Foucault, as well as based on the understanding of the Inter-American Commission on Human Rights (IACHR) and the European Commission on Human Rights (ECHR), contrasting these understandings with the positions of the Supreme Federal Court (STF). Also, the parameters and criteria for justifying the limitation of freedom of expression in cases of antidemocratic speech are analyzed, especially based on the STF decision in AP 1044/DF. As a result, it was found that the STF has changed its perception of what constitutes hate speech in successive decisions, revealing divergences in the interpretation of the term, which hinders and disorients, in the assessment of precedents, the treatment of the issue by Brazilian courts. The repression of antidemocratic speech, in a manner similar to the treatment given to hate speech, is a crucial measure for the preservation of democracy and its institutions. A more restricted margin of conformity for this type of speech, but justified based on the parameters highlighted by the IACHR to limit freedom of expression, is necessary, since the lack of acceptance and legitimacy compromises the ability of institutions to fulfill their responsibilities, including, in the case of the STF, the protection of freedom of expression itself.