Freedom of expression – protection and limits

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By CRISTHYANO RODRIGUES DO CARMO BARBALHO*

The freedoms of thought and assembly should never be used as instruments that can insert masked illegalities in the Democratic State of Law

The military dictatorship, without a doubt, was one of the darkest events in the recent history of Brazil by effectively suppressing the rights and guarantees, among them the freedoms democratically derived from the 1946 Constitution.

Faced with the establishment of the dictatorial regime, “in 1967 a new Constitution was drawn up, formally maintaining freedom of expression (art. 150, paragraph 8), with the same limits imposed by the 1946 Constitution and by Institutional Act n.o. two".[I] In addition, the right of assembly in article 150, §27 was also maintained. During this period, among the edited institutional acts, Institutional Act No. 5 (AI 5) stood out, instituted on December 13, 1968, during the government of General Costa e Silva, known as “the year that is not over”.[ii]

AI 5 “produced a cast of arbitrary actions with lasting effects. It defined the hardest moment of the regime, giving exceptional power to rulers to arbitrarily punish those who were enemies of the regime or considered as such”.[iii]

In 1969, with the edition of Constitutional Amendment nº 1, the severe effects of the restrictions imposed by the military on the rights to freedom of expression and assembly, whose normative forecast was only a make-up of reality, were already felt.

When the dictatorial regime came down, a new light of hope resurfaced, illuminating the country's path towards redemocratization, bringing back with it the countless rights that had been suppressed, among them freedom of expression and assembly.

On October 05, 1988, the date of promulgation of the Citizen's Constitution, the President of the National Constituent Assembly, Ulisses Guimarães, in a remarkable speech, affirmed that “A traitor to the Constitution is a traitor to the Fatherland. We know the damn way. Tear up the Constitution, lock the doors of Parliament, garrotte freedom, send patriots to jail, exile and the cemetery”.[iv]

From this discourse it was possible to predict that the new Constitution would have a democratic genesis, granting individual and collective freedoms to citizens, which is a strong response to those who imposed the dictatorial regime, silencing the population from thinking and gathering.

The freedoms of thought and assembly, now under discussion, were inserted by the original constituent legislator in the Federal Constitution of 1988, Title II, which deals with Fundamental Rights and Guarantees, more precisely in Chapter I, which lists the list of Individual and Collective Rights and Guarantees .

When addressing the rights of freedom of thought and assembly, it is convenient to address issues related to the protection and limitations of their exercise in line with the Constitution. The freedom of thought guaranteed by Article 5, IV, established that “the expression of thought is free, anonymity being prohibited.”[v]

The right to assemble is guaranteed in article 5, XVI, which provides that “everyone can assemble peacefully, without weapons, in places open to the public, regardless of authorization, provided that they do not frustrate another meeting previously called for the same place, being only prior notice to the competent authority is required.[vi]

First, it is important to clarify that the individual and collective rights and guarantees provided for in the Federal Constitution of 1988 cannot be exercised absolutely, with exceptions. In this scenario, the rights of freedom of thought and assembly are also included in a relativized classification, since their exercise may conflict with other rights and guarantees provided for in the Constitution, where there is no hierarchy of one in relation to the other.

In this specific case, conflicts of interest are weighed with special attention to the principles of reasonableness and proportionality, respectively. In addition, they must be considered from the perspective of the principle of human dignity.

The freedom of expression of thought has its original basis in the Bill of Rights in 1689. In 1769, this fundamental right appears in the Universal Declaration of the Rights of Man and of the Citizen, this diploma being a milestone in the consecration of individual and collective freedoms.

The freedom of expression of thought, as a rule, must be broadly protected, with the individual incorporated into his right to free choice to express his thoughts, and the State must refrain from restricting him.

Although the rule is the freedom of the individual to express his or her thoughts, there are exceptional cases that allow the restriction when, in the specific case, there will be a consideration of whether the exercise of this right puts at risk the legal interests of third parties protected by the State.

On the other hand, the right to freedom of assembly has its genesis in the republican principle and is bundled with the rights of freedom of expression. “It is an eminently instrumental right, which aims to ensure the free expression of ideas, including, within its scope of protection, the right to protest.”[vii]

“The notion of meeting is broad enough to accommodate both static manifestations, limited to a single territorial space, and to accommodate more dynamic situations, in which there is movement of demonstrators through public roads.”[viii]

Thus, freedom of assembly has “a negative dimension, embodied in the State's duty of non-interference in its exercise; on the other, a positive dimension, present in the State's duty to “protect demonstrators, ensuring the necessary means for the right to assembly to be enjoyed regularly”.[ix]

The Federal Constitution of 1988 lists two constraints to its exercise, the first being the requirement of peaceful assembly without weapons. As for the second requirement, it is the chosen place and prior notice to the competent authority, so that the legal interest of third parties is not frustrated.

Democracy presupposes that society must always have its right to voice and assembly guaranteed in different fields and segments. The effective use of these constitutional guarantees by the individual in various periods of Brazilian history has demonstrated its importance in the postulate of the Democratic State of Law.

These guarantees must receive greater protection, so that society can use them in a broad and unrestricted way when it is always necessary to maintain democracy in the country. It is on the basis of individual and collective guarantees conferred in a constitution enacted by the will of the people that democracy will survive, removing the clutches of totalitarianism that one day darkened the skies of Brazil.

Freedom of thought and freedom of assembly should never be used as instruments that can introduce masked illegalities into the Democratic State of Law, especially those that aim to threaten its structure, so as to no longer flirt with authoritarianism.

The protection of freedom of thought and assembly must be celebrated and encouraged for the benefit of maintaining democracy, but always with a close eye on constitutional precepts.

*Cristhyano Rodrigues do Carmo Barbalho is a lawyer.

Notes


[I] SARMENTO, Daniel. Commentary on Article 5, IV. In CANOTILHO, JJ Gomes et al. Comments to the Constitution of Brazil. São Paulo: Saraiva Educação, 2018. p. 517.

[ii] Getulio Vargas Foundation. The AI5. Available in: https://cpdoc.fgv.br/producao/dossies/FatosImagens/AI5.

[iii] Getulio Vargas Foundation. The AI5. Available in: https://cpdoc.fgv.br/producao/dossies/FatosImagens/AI5.

[iv] BRAZIL. Congress. Chamber of Deputies. Integrates the Speech President of the National Constituent Assembly, Dr. Ulisses Guimaraes. Available in: https://www.camara.leg.br/radio/programas/277285-integra-do-discurso-presidente-da-assembleia-nacional-constituinte-dr-ulysses-guimaraes-10-23/.

[v] Brazil. [Constitution (1988)] Constitution of the Federative Republic of Brazil: constitutional text enacted on October 5, 1988, compiled up to Constitutional Amendment No. 125/2022. – Brasília, DF: Federal Senate, Coordination of Technical Editions, 2022. p.13.

[vi] Brazil. [Constitution (1988)] Constitution of the Federative Republic of Brazil: constitutional text enacted on October 5, 1988, compiled up to Constitutional Amendment no.o 125/2022. – Brasília, DF: Federal Senate, Coordination of Technical Editions, 2022. p.13.

[vii] NOVELINO, Marcelo. Course in Constitutional Law. 11. ed. rev., amp. and current. Savior: Ed. JusPodivm, 2016. p. 370-371.

[viii] WHITE, Paulo Gustavo Gonet. Commentary on Article 5, XVI. In CANOTILHO, JJ Gomes et al. Comments on the Constitution of Brazil. 2nd ed. São Paulo: Saraiva Educação, 2018. p. 641.

[ix] NOVELINO, Marcelo. Constitutional Law Course. 11. ed. rev., amp. and current. Savior: Ed. JusPodivm, 2016. p. 371.

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