🗣️ Razoabilidade das sanções

The essential debate. Freedom of Speech. Presented by Gazeta do Povo and ranking of politicians. Support from Institute of Lawyers of Paraná. National Federation of Lawyers' Institutes and Liberal Institute. I'm Marcos Tosi, journalist at Gazeta do Povo. This congress is based on the fundamental premise that only in a free environment can man develop the use of reason, Fully grow and make an effective contribution to society. This is not a pre-configured space or with ready-made conclusions. Here, as happened yesterday, we will see an honest and unimpeded debate of ideas on the most diverse issues, affecting the law,

freedom of speech, coexistence in a democracy. This panel of our meeting, this first panel of the second day, deals with the principle of reasonableness of sanctions, when freedom of speech is at stake. I now invite to come to the stage Mr. Jónatas Eduardo Mendes Machado Jónatas Eduardo Mendes Machado, PhD in Political Legal Sciences from the Faculty of Law of the University of Coimbra, where he teaches International Law, European Union Law and Tax Law at the Faculty of Law. He is also a professor at the Autonomous University of Lisbon, and author of the book Liberdade de

Expressão: Dimensões Constitucionais da Esfera Pública no Sistema Social, a reference in Portuguese. He is part of the list of conciliators of the Conciliation Body of the Organization for European Security and Cooperation, and participates in the European Consortium for Research on Church and State. I then invite Luiz Guilherme Marinoni to come to the stage. 35 00:02:03,690 --> 00:02:06,693 Luiz Guilherme Marinoni is a lawyer and reviewer, Professor of Civil Procedural Law at the Federal University of Paraná, Has a post-doctorate at the State University of Milan and Columbia Law School. Visiting professor also at Columbia Law School. and

president of the Brazilian Association of Civil Procedural Law. He won the Jabuti Award twice and was nominated three more times. Author of dozens of legal books, including Processo Constitucional e Democracia Tutela Inibitória e Precedentes Obrigatórios. I invite Todd Henderson to come to the stage. Todd Henderson, professor of Law at the University of Chicago Law School. Initially graduated in Engineering with honors from Princeton University, and Then dedicated himself to Law with training from the University of Chicago. Specialist in the area of telecommunications, also in technology and regulatory law. He is a recurring voice in the American

public debate when the topic is Freedom of Speech. One interesting thing we mentioned is that our panelist was captain of the university football championship team. And you can imagine his advantage because of his height? I now invite Marcel Van Hattem to come to the stage. Marcel Van Hattem, federal deputy for the New Party in Rio Grande do Sul, columnist for Gazeta do Povo and bachelor in International Relations, With specialization in Law, Economics and Constitutional Democracy from the Federal University of Rio Grande do Sul. Master in Political Science from the University of Leiden, in the Netherlands,

and in Journalism, Media and Globalization from the Universities of Leiden, in the Netherlands, and Aarhus, in Denmark . And to mediate this debate, the panel that will deal with the reasonableness of sanctions, I invite Ana Luisa Braga. Ana Luisa Braga, master and doctor in Philosophy, General Theory of Law from the University of São Paulo. Professor of Constitutional Law at Faculdade Bela Vista. I now turn the floor over to Ana Luisa. Thank you very much for everyone's presence On our second day of debates. I would like to thank you very much for the opportunity to moderate

this debate, and say that it is a joy to be here with all our panelists to debate such an important and interesting topic, which is the reasonableness of sanctions in terms of fFreedom of speech. And to illustrate this debate, we chose a very interesting case that concerns demonstrations in the Workers' Cause Party and its social networks. So we have some demonstrations here that were made by the party. If we can see, They are posts from the Partido da Causa Operária on social media, in which, in short, party representatives make very harsh criticisms of STF ministers,

the STF institution, and especially direct criticism of minister Alexandre de Moraes, to harsh criticism, calling him a putschist, a fascist. And at other times, they still call for the dissolution of the STF. And what was the judicial position surrounding this post? Well, firstly, it is important to make a decision in series. And this job? And Minister Alexandre De Moraes, as part of the fake news inquiry. He ordered that all social networks of this party be suspended during election time, it is worth noting. So it was finally determined that all accounts on Twitter, Instagram, Facebook, TikTok

were suspended. And we are here, so, in light and based on this specific case, to debate the reasonableness of these sanctions. The questions that were distributed to our panelists and to be answered by them were three. The first question concerns the reasonableness of the sanction of blocking the accounts of parents, these parties and this specific party on social media. So, the question is whether this account blocking is a reasonable sanction in case of possible abuse of freedom of speech? This sanction may be justified due to the severity of the abuse, if this abuse is repeated.

For example, is this relevant data to determine this sanction? And, if so, if this sanction is valid, it must be provided for by law. That was our first question. The second question concerns the possibility of actually verifying excesses in the PC manifestation. So, the question is: Were there, in fact, excesses in this demonstration? And because it is a political party at election time, would this change our treatment of the issue? And the third question concerns a specific case, which is the demonetization of parties and media outlets on their social networks. Whether demonetization is a reasonable

sanction and if so, under what circumstances would it apply? And, finally, if it needs to be provided for in law to start this debate. I will give the floor to Professor Luiz Guilherme Marinoni. Thank you very much. It's a pleasure to be here with everyone. It's a great satisfaction. I see this Congress as, if not the most important in which I have already participated, certainly as one of the most important, due to the relationship between the topic and the time in which we are living. It really is an Essential discussion, as the title itself says,

the very emblem of the Congress, the Seminar, our Meeting for the Development of our Democracy. I am very grateful for the invitation, especially to Dr. Guilherme da Cunha Pereira. I congratulate all my colleagues who are present here and it is a great pleasure to join this panel with everyone present. The topic is the topic of war, of reasonableness. I prefer. I will speak in terms of proportionality. In fact, reasonableness and proportionality are very close topics. I would say that proportionality did not develop in the United States and until there was a sedimentation of the issue

of reasonableness, in other words, the issue of reasonableness was initially developed by American jurisprudence, while the issue of proportionality was especially touched upon By the Constitutional Court Germany in the post-war period. Of course, in common law we also have countries like Canada that are also concerned with the issue of proportionality. But to talk in 12 minutes, I would have to start by saying that proportionality is nothing more than a theoretical elaboration of this nothing to demonstrate. The rationality of the behavior of those who are faced with the need to restrict fundamental rights. In other words,

fundamental rights can exceptionally be restricted, limited. The big problem is knowing how this restriction occurs. The rule of proportionality, in a broad sense, aims to highlight how anyone who is faced with the need to restrict a fundamental right or with a restriction already made to a fundamental right, should behave. It is clear that the restriction on fundamental rights, first of all, is carried out by those who hold normative power, the legislator and the administrator. But the judge also controls constitutionality. Obviously, when looking at the application of the rule of proportionality by the judge or the

administrator, one certainly has to think from the logic of proportionality, and not only when he is faced with the law or an administrative norm, but also when the judge is faced with with the specific case in which he must directly apply fundamental rights. Despite the lack of legal regulation in these cases, the judge applies the rule of proportionality according to the circumstances of the specific case. However, as we are here thinking about the truth, About the logical operation of reasoning appropriate to the restriction of fundamental rights, we cannot forget that the rule of proportionality concerns

judicial reasoning, so that it is divided according to the stages , according to the moments in which the judge is faced with the problem of restriction. Every fundamental right is exactly why, behind the rule of proportionality, there are generally three sub-rules: the rule of adequacy, necessity And proportionality in the strict sense, or balancing. He thus talks about rules in tests of the law, in tests of proportionality or in stages of proportionality, even to highlight the continuity of judicial reasoning. I prefer to speak, in fact, in short, adequate rational connection, necessity and proportionality in the strict

sense. Or is balancing an eminently theoretical task and an eminently dogmatic task of lending meaning to an appropriate end to rational connection, necessity and, above all, proportionality In the strict sense or balancing. Because this is a point that has been challenged by all jurists and by all courts around the world, especially when the Judiciary is facing a second balancing of a reba launch of fundamental rights, following the balancing that has already been done by the legislator. But the few words adequate end of what is the appropriate end brings an axiological component to the problem of

proportionality. In other words, the restriction must have an appropriate purpose, considering the right to freedom of speech. The only adequate purpose, in my view, that justifies the restriction of freedom of speech, is an urgent public need, Duly evidenced by facts and evidence. It is not enough to simply claim that it is not enough for the legislator to simply take into account the possibility of an urgent public need. He has to demonstrate this, whether through public hearings, whether through deliberation in Parliament and whether by listening to experts and presenting evidence in parliamentary deliberation to be an

example even in our case, Whether this is a suitable end that of urgent public need. It is certainly not appropriate to restrict the right to freedom of speech to control the rationality of public discourse. Well looked at, when the right to freedom is restricted, taking into account a factual allegation, a fact that was and still is discussed by people exactly and many times, because it is a kind of bad faith that hurts the worst Tim York infects. The truth is that it is those facts that concern groups that often reveal subconscious and extra-legal influences in

their analysis of the legality of the facts. It is a feeling of belonging to the group that often leads those who are on a social network or elsewhere, to replicate the fact to establish a connection with the commitments of those members of the group to which they belong. Therefore. Using and often using restrictions on freedom of speech is used on the grounds that there is Bias, bias, etc. Provoked by the discussions that are held on the Internet, it is obviously an inappropriate end. This is not an adequate end that is, therefore, capable of justifying the

restriction of the right to freedom of speech. The argument that what may be occurring is a bias in the discourse that may be occurring is due to the narcissistic component of the replication of facts by group members. The construction of a barn for the distortion of public discourse. In fact, we know this is so. We know that there is no rationality in the debate that takes place on the internet, especially on social media. There is no rationality. But the problem is that the law cannot restrict freedom of speech to control the rationality of discussion on

the internet, just as it cannot do this to control freedom of speech in the public square. Well, this first component is adequate. The second. Rational Connection. The rational connection has to do with the relationship between the measure provided for in the law and the objective sought by the legislator Or administrator. But let's talk about the legislator. It makes no sense, for example, to limit the use of the internet to a specific channel or a specific network where someone cannot present arguments that are considered fake news by the legislator. In other words, there is no rational

connection between the measure and the legislator's purpose. But I realize that, for now, we are talking about thesis, adequate end and rational connection between the measure and the appropriate end. And it is very difficult to control constitutionality through proportionality, limiting itself to the appropriate purpose and rational connection. This occurs most clearly when we are faced with necessity and proportionality. In a strict sense, necessity means, in other words, and is also said to be the smallest possible restriction is not proportional, no measure envisaged is intended to restrict the fundamental right That does not generate the smallest

possible restriction on the fundamental right that is on the other side. The measure always has to generate the smallest possible restriction to be rational. Many times, the legislator could have provided for a less restrictive measure, but the judge has an obligation to try to look at all the measures looking for a less restrictive one, looking for one that can cause a lesser restriction, especially because, in most cases, it will be alleged by the interested party that the right to freedom of speech is not restricted. And, finally, the big problem of proportionality in the strict sense

or balancing. It could be said, in theoretical terms, that proportionality in the strict sense is only justified when the benefit granted to the protected right is greater or rationally and justifies the restriction imposed on the right subject to limitation. But that is speaking in abstract terms. How can we talk about this in the face of freedom of speech? I think it is important to make it clear that when we Talk about proportionality in the strict sense, we have two types, let's say, from constitutions to constitutions that expressly contain generally indeterminate clauses, which provide for the

possibility of restricting a fundamental right, such as the Constitution of Canada, which only allows the restriction of a fundamental right in cases of urgent public need or substantial state interest. In other cases, it is admitted that the restriction on fundamental rights is implicit in a Constitution that protects fundamental rights, considering that the need to protect fundamental rights necessarily always implies Or, as a rule, implies the restriction of another. The possibility of restriction would be implicit, so the big problem is knowing what degree or what obstacle has to be overcome for the restriction to occur. In

these situations, the constitutions also usually do not say much about American law. American law, however, as everyone knows, works with different scrutiny: strict scrutiny, Moderate scrutiny and minimum scrutiny. As everyone also knows, for the right to freedom of the press, for the right to freedom of political expression, scrutiny is maximum. That is, it is neither moderate nor minimum, it is strict and maximum. When we talk about the right to freedom of speech of public speech, the scrutiny is moderate, but it is still very high. The scrutiny is very high, that is, the barrier that must

be overcome for the restriction to occur is very high. It is more than that. And that's the big problem. There's no point saying this, it's abstract, after all. And that depends on facts. The facts, the concrete circumstances, must be present, must be demonstrated, evidenced, so that the possibility of restriction can be justified. The big problem we have, especially in Brazil, is that we do not work with constitutional facts, general facts, social facts or legislative facts that can allow an analysis Of constitutionality by the Supreme Court. For a very simple reason, while the Supreme Court of

the United States exercises a displacement function, civil courts and supreme courts have never exercised this function. Always performing a correction function has never been a function of a machine. That is why, in the United States, several doctrinal works have shown that the facts for the Supreme Court and the courts that exercise, the appeals courts that exercise diplomatic functions are as important as for the Parliament, no less in continental Europe and in Latin America. This does not occur because it is not even imagined That a judge or that the Supreme Court is performing its function. But

the facts don't matter because the Court is not devising or constructing a new norm. However, as everyone knows, after some time, and especially here in Brazilian Law, the Supreme Court began to exercise this function, it began to edit precedents that, in fact, elaborate norms based on completely indeterminate constitutional norms. That is, based on from the right to equality, from the right to privacy, pure norms began to be built that regulate life in society. Just as the Supreme Court of the United States Used a lot of the due process clause and the Apple Protection of Law

to develop norms to develop the Constitution, which could not be developed in any other way. The Brazilian Supreme Court today arrogates to the right to develop the Constitution based on determined norms. But what's the difference? We here do not consider the facts. When we decided the Supreme Court to be Brazilian, as incredible as it may seem, as everyone knows that they are in Brazil, they know and are prohibited from analyzing facts to decide, there is no room for extraordinary appeals Even to evaluate the evidence. In other words, the facts cannot be considered by the Court.

And how is a court going to decide on an issue that concerns the functioning of the world? General fact, in the way of society's behavior, based on a constitutional norm that says almost nothing, such as the right to equality and the right to privacy, without working and reasoning and justifying based on the facts. As it does not do this, it also makes it almost impossible to create precedents or standards that justify the restriction Of the right to freedom, therefore causing complete legal uncertainty for everyone. Because if precedent is the standard, they should serve precisely to

guarantee legal certainty. And the Court cannot establish precedents based on the specific circumstances of the case. What the Court does, in fact, is a purely normative task, similar to that of the legislator. The court is usurping the power of the legislator, working only normatively and issuing rules and, at the same time, worse, without the expected consequences, without guaranteeing legal certainty. I just gave you an overview, not to go into the specific case yet, but just to bring up the issues that I consider important. So thank you, thank you everyone. Professor Luís Marinoni brought us very

important questions. First, we have observed that proportionality is the principle of reasonableness. They are used almost as a resource for the judge to decide in the most proactive way possible. And, in fact, what Professor Marinoni brought us is that there is an appropriate methodology to apply the principle, The principle of reasonableness, proportionality. It follows a rational and logical order of application. And another very important point is the idea of institutional dialogue that you also brought up very well in your most recent books, regarding Continuous Process and Democracy. It is important that the magistrate understands that

he is within a system of distribution of powers. So, it plays a specific role in this. Before giving the floor to the deputy, I think it is important to highlight this specific case. In the appeals made To the TSE by digital platforms, there was a request that, instead of blocking all accounts and suspending all PC accounts, the most aggressive publications should be removed exclusively . So, this was a request made by the platforms and which was understood by the TSE and that it was not a reasonable request as the seriousness of the expressions required that

there in fact be a complete suspension of the accounts and the possibility of the party demonstrating on social media. Just one concrete fact that is important for reflection on the issue of the reasonableness Of the sanction, give the floor to deputy Marcel Van Hattem. Thank you. I'll go from there. But first I want to welcome everyone here. Thank you very much. Gazeta do Guilherme for the invitation. I feel deeply honored and privileged to be alongside such distinguished debaters. An event prepared with care. Congratulations! Really a success. I wish I had been here yesterday, throughout the

day I left here and I felt like staying, unfortunately. The parliamentary activities throughout Wednesday were so great that I was not allowed to return. And I want to take advantage, since I'm talking about parliamentary activities. First, to welcome the presence of deputy Lupion, who was there a short time ago. He reported that he had a flight, but he was instrumental yesterday in the obstruction. I wanted to make this recognition. Poor for his work, that of the Parliamentary Front and all the parliamentary fronts that are united at this moment in Brazil, so that we, on this

topic of freedom of speech and so many others dear to those who defend the rule of law, democracy, guarantees and individual freedoms and all these fronts that are united to demonstrate to Brazil, That there is a reaction from the legislative body that represents the Brazilian people, which is the Parliament and also a more than special mention to Senator Sérgio Moro. I want to make this public recognition of its historical importance here. Your Excellency has what makes me think about how life is, how good God is because I was in the streets shouting his name so

many times during the demonstrations there in Porto Alegre. I helped organize it and today I'm here speaking, having the privilege of having you watch it. This is almost unbelievable, but it really demonstrates That whoever wants it, can do it, goes forward. Brazil has a way and we are working towards it. Thank you, Senator, for your example. I'm very happy to be here in your presence. Let's go. About this question that was raised just now about reasonableness and whether it was not enough? Just remove the post. We are dealing with the issue of PCO, the Partido

da Causa Operária, which, by the way, is a left-wing party, which is one of the extreme left-wing things. I would say that, in fact, of everything that was stated in your texts, I agree with most of it. Some I don't agree with, obviously. Including the mention of Lula as president, but to make it clear that it is a left-wing party and that it even called for Lula's presidency. But it is important to highlight that the decision is so unreasonable that it resembles a decision to close a press organization or a communication group because one published

article or two or three prevent it from continuing to operate, because to this day the person has their networks blocked. It is a political party That is fully capable of functioning in Brazil, but cannot communicate with its voters. And I disagree, I repeat diametrically practically all the PC's positions, except perhaps including the defense of freedom of speech, which perhaps even surprises the way in which they make this defense. Freedom of speech sometimes even causes admiration for the way in which the Workers' Cause Party has demonstrated in favor of freedom of speech. It's completely unreasonable. And

the violence of the Federal Supreme Court and also of the Superior Electoral Court, against the citizen And against the representation of the citizen, are political parties, other institutions, silencing them in a way that in these cases is permanent and atrocious. It's unacceptable. So, this is the first point I wanted to bring up. Answering the initial question, would blocking social media accounts be a sanction in the face of a possible abuse of freedom of speech? Obviously not, except, in some very rare cases, in which it is very clearly triggered. And American doctrine, for example. We talked

about this yesterday and it brings up some specific points, including the imminent violence In the face of a situation, whether on social media or even in a public square, that a certain violent act is going to take place on that day, in that place. Some conditions that would allow blocking of social networks would be tolerable. But it’s not what we are seeing today in Brazil. So, this is the first point that needs to be brought to light. Secondly, in this specific case, there were excesses on the part of the PCR. Look at freedom of speech.

It really, like other freedoms, is not absolute. And if there are excesses, there are ways to combat them. The legislation even provides the remedies for it. In Brazil, it is a punishable crime, Pardon from prison, including insult, slander, defamation. Something that, in my opinion, should not be a crime, has a civil scope for it. But in Brazil, the only thing is that Minister Alexandre de Moraes and the other Ministers of the Federal Supreme Court, apparently, do not trust the Brazilian justice system itself, because if they had trusted the Judiciary, they would have filed criminal and

civil proceedings against potential abusers of their freedom of speech to that they be punished in the appropriate instances. But, worse than that, she acts without being provoked. Courts is that his job is Completely aberrant and that is why it is also necessary to effectively combat this type of abuse of authority that goes far beyond judicial activism. And, finally, the sanction frequently adopted by the TSE is demonetization, the determination to platforms that prevents the profile from receiving advertising resources clearly, in addition to being intimidating, this expedient serves for political persecution and financial collapse of the media

that dare to challenge certain actions of the establishment or the status quo. Repeating the example of the traditional media and as has already happened in many countries, Including Argentina, when Cristina Kirchner decided to increase the tax on paper, everyone must remember this to annihilate the opposition made by the press to her government. And, by the way, I think it's important to remember. If I'm not mistaken, it was Millôr Fernandes who said that the press is opposition. The rest is dry and wet. The press has this role in the fourth power democracy of being opposition to

whoever is in power. It doesn't matter if it's right-wing or left-wing, in the sense of demanding transparency, of helping with oversight, including of other powers, as is our case with the Legislative Branch, which also needs to be opposed. Therefore, what we are seeing from these Supreme Court decisions are attempts to silence those who disagree. And yesterday I said, and I'm not going to repeat or expand on this subject too much… But I still, to this day, continue to be under threat from the Federal Supreme Court of a fine of R$ 20,000 per day for posts

that, I no longer know what it's called, the Special Advisory to Combat Disinformation. It seems that they read from George Orwell's 1984 book, the name of Big Brother's consultancy to also be placed in the Federal Supreme Court. Which identified a post of mine, ordered it to be deleted on social media and I only found out about it because I received two YouTube messages information, that I was never informed about, at least not at the time of the Federal Supreme Court. My lawyer had enormous difficulties accessing the file. It's been a few months since we finally

had help, in this case from the OAB, because it was directly provoked and has also failed to forgive the series of posts, to publicly speak out more clearly about the abuses that have occurred. But at that time, after having sought other channels for the STF to grant access to our processes, We found out about the reasons for the sanction and were later threatened. And this decision continues to impose a fine of R$ 20.000 per day for every post I eventually make that displeases this consultancy to combat disinformation. Because they supposedly violate the Electoral Court or

the Democratic Rule of Law. When there are no clear rules, everyone is afraid. This is the message. If you don't have a constitution that you read, you say This here will be respected. You don't have laws that are clear and that is our legal framework. If it comes out of a judge's head, if the law, or rather, if the government is of men and not of laws, fear prevails. This is the main objective of those who pursue it politically. In this way, the fear that prevails is that we remain silent and that we do not

speak out. And for that very reason, by way of conclusion, I congratulate once again the Gazeta for this very important debate, for not being afraid that other media outlets, unfortunately, have seen feeding into themselves to say what is provided for in our law and our Constitution, which is obviously we have an inalienable right to our freedom of speech. Thank you very much! Thank you very much, deputy! I would say that we recognize the true defenders of freedom of speech when they are able to defend the freedom of speech of exactly those who think differently, regardless

of who is being censored. So, I think that, although many of us probably do not share the same ideas as the Workers' Cause Party, it is important to emphasize that we here are defending the right of the Workers' Cause Party to express itself and demonstrate, as well as all of us. freedom of speech. It needs to be universally defended. I know give the floor to Professors Todd and Jónatas. Professor, I think this is an important point and much of this work Does not belong to the legal field, it belongs to the moral and cultural field.

And we can work to elevate this public debate without the need for legal or judicial imposition. . Need hours, please. First of all, I would like to thank you for the invitation addressed to me, to be here for Gazeta do Povo, whose initiative I want to congratulate, because I really think it is very important that we debate freedom of speech. And I am happy to see Brazil Concerned about freedom of speech. It is an honor to be here on this panel and, in fact, I subscribe to everything that was said here. Without freedom of speech

there is no democracy. Freedom of speech is fundamental for democracy, for the formulation, for the formation of public opinion and for the formation of political will that we want to be informed by different points of view, different arguments, different facts, different interpretations of the same facts. It is not, and it is and is critical to democracy and the rule of law. Because, as has already been said here, freedom of speech, the free press, social networks help to identify and denounce the pathologies of the political process. It is not often corruption and arrogance, let's say, incompetence,

etc. Many of these pathologies of the political process are identified and are debated by the media. Indeed, freedom of speech is enshrined in the main international human rights documents, It is enshrined in the constitutions of all democracies, but despite this, it is very threatened. And it has already been said here that, in moments of great ideological polarization and cultural war, ideological polarization, a censorship impulse, is not an impulse to stigmatize, to silence, to persecute, to retaliate. It's not against uncomfortable speech, it's not hate speech, it becomes that speech that I hate and that, therefore, I

want to silence. It's not, let's say One of the weapons, as was said here, is to place, let's say, on the political terrain, a whole set of indeterminate concepts. It's not that everything from fake news to hatred, to all kinds of phobias, then prejudice, offensiveness, etc. Yes, they are concepts that are very subjective, very easily manipulated and very easily usable as media. But in war, it is not how it is. Cluster bombs against political and ideological opponents, right? And it is a serious problem, as has already been said here, Because we often no longer have

clear, precise and determined legal concepts that clearly delimit the red lines of what is, what is permitted and what is prohibited. But we really have to make concepts, don't we? We have really unclear concepts , which, as has already been said, create legal uncertainty. Censorship and self-censorship is not fear. And in fact, they greatly impoverish the political debate which, as has been said, must be a plural debate, a rich debate, a debate with different perspectives, even those that we find uncomfortable, right? Those that we find unpleasant, but even those that we find offensive. Yes, because

we all have that one of these days a teacher was saying to a Belgian teacher I was with last week. He said I have the right to be offended. In other words, in a democracy we all know that, sooner or later, we will have to hear things that offend us. But this is part of, let's say, democracy, of public discourse. We cannot immediately take indeterminate concepts and throw them at our enemies, at our political or ideological adversaries. In the context of ideological wars, this is not the case. In fact, it is quite problematic, especially when

we see a judicial body that should apply general and abstract laws. It is not, in essence, functioning as a kind of grand inquisitor and chief inquisitor who will decide somewhat subjectively, arbitrarily, discretionarily, what is the speech and what is the uncomfortable speech and what are the sanctions for this uncomfortable speech, as already was said here. Indeed, restrictions on fundamental rights and freedom of speech must be based on general and abstract laws and on Clear, precise and determined laws, exactly so as not to have the risk of censorship, which is very and very common. And so

that there is no government by decree. It is not, say, in the former communist regimes, say, Lenin, Stalin, etc. They governed by decrees, not by cases. And there cannot be, obviously, let's say, a court that governs by decrees, secret, unpredictable and surprising, even in the name of the supposed defense of institutions and democracy, etc. As for sanctions, what has been said here is more than enough, isn't it? We all know that in a democracy, freedom is the rule and the restriction to freedom is the exception. Freedom is the rule. It is not in dubio pro

freedom. In other words, when in doubt, decide if you are in favor of freedom. Freedom is a rule and, therefore, being the rule, it must be interpreted in a broad sense, not freedom, as a rule, and it must be interpreted in a broad sense. Restriction of freedom is the exception and, therefore, must be Provided for in law, in clear, precise and determined laws. It must be properly substantiated and must be clear to everyone. It's not because it was necessary to operate. The restriction must be proportional, as was said, it is not. You should always look

for the least restrictive alternatives. It is not in the regulatory pyramid. We should always start with the softest measures. It is not lighter, less intrusive, less aggressive and only in last-ratio solutions, when there is nothing else to do, when everything that has already been tried has not really worked can we go to Invasive and aggressive measures, right? Therefore, it must be duly substantiated, it must be proportional and it must be interpreted restrictively, that is, basically, not leaving that restriction for those cases of almost clearing present danger, right? Clear and imminent danger those in which there

really is a serious risk, as proven for institutions that cannot be simply “Ah, I think the Supreme Court should be abolished”. “Oh, I think those individuals are fascists, they are going to jail.” That's exactly it, it's not that, it's not putting institutions in danger. Of course, imminent. Because it is also Important, in a democracy, to know that those holding political and judicial positions are, obviously, more exposed to criticism. It is also true that we must, as was said here, create an environment in which, in fact, criticism is as possible, rigorous, as objective as possible, serene

and as rational and grounded as possible. And don't simply criticize insult, manipulation, slander. It is not. Let's say, and this is now also important to be aware of the following. Social networks, I think, have a very important role, Because they brought more voices to the discussion and ended a certain control of some information gatekeepers, which was the traditional media and, therefore, allowed access to many different discourses. And that's interesting. Of course, we also cannot be so naive as to say that there are some people who no one will actually want to use social networks for

perverse purposes and to undermine, let's say, institutions, right? For example, in Europe there is an European Union policy against disinformation. Why? Because, for example, in the Russian military strategy, right? The use of disinformation is an assumed means of hybrid warfare, hybrid warfare against European institutions, against elections, for example, in the United States, etc. In other words, there are those who use it and there are those who want to use it for, say, ten days. Trol fact is not from troll factories and other things like that. The Wagner Group had, let's say, its Trol Factory in

St. Petersburg, etc. In other words, we deep down, at the same time that we defend freedom of speech for speech that is not only rational and serene, but often also emotional and not very rational, etc. Because it is impossible, we cannot think that the sphere of public discourse will be just a bank, a sphere of individuals like John Rawls or the IURD opens, but discussing calmly, let's say, in a social situation, in an ideal situation of dialogue. No, let's say, no. The speech is often passionate and often heated and often Exaggerated. But there it is,

it's better to live with this exaggeration of freedom than with the lack of it, which is the exaggeration of restrictions on freedom. But at the same time, as I was saying that we defend this, we must also be alert. We must also be alert, because there are sinister uses, let's say, of the available means of communication that, yes, really aim, for example, to attack institutions, sow confusion in countries, if possible, fragment countries and divide them. And therefore, deep down, We have to manage this balance, right? We have to be simple as doves, but prudent as

serpents. Not in a certain sense, as someone said 2000 years ago, and therefore we must defend freedom of speech. Institutions need freedom of speech and freedom of speech also needs strong and functional institutions, right? But in fact, we must correct whenever we realize that there is a serious risk of exaggeration. It is not about abuses of power by the institutions themselves. Therefore, basically these would be some of my reflections. While you all spoke, I elaborated on what has already been said and which I found very well said and very pertinent, I formulated here, while you

were speaking, some questions so that we can express our argument a little more on the topic of reasonableness and proportionality. So, the first question is would I like to hear them? And if you find it interesting? And if, instead of suspending all accounts and blocking the PC's ability to communicate on their social networks, we simply removed and removed those publications, let's imagine something different. Now, Minister Alexandre Morais, ex officio, orders not The suspension of accounts, but simply the removal of publications that he deems to be aggressive or dangerous to our democratic system. The question I

ask is would this pass the test of proportionality and reasonableness? If it was just determination, what do you think? The decision is completely disproportionate. It's just not very easy to understand. She, she is more restrictive, would be more restrictive. It would be impossible for there to be several less restrictive measures. Firstly, for example, the Federal Supreme Court Should give the company or party an opportunity. Sorry to the party to correct its behavior, under penalty of, for example, a fine. Correct your behavior. Of course, we are starting from the premise that censorship and restriction of freedom

of speech can occur. We are just talking about a retraction, retract something, but not this job, ever. This job is never a job. Never before giving the party the opportunity to correct its behavior. And if the party hadn't corrected its behavior, It would still be a case of removing a specific piece of news, as you proposed. But I wanted to get to the previous point, which I think is the most important. Would restriction be possible? I'm not even talking about whether it is necessary to measure it. I wanted to know if it's possible. Now let's

talk about it. I liked. I remembered a case that the professor could explain better to us, which is the so-called cake case in London, in the United States. For the…. From what I understood from my reading, In the early 2000s, in 2005, 2006, three American states only required voter identification cards. From then on, voter identification cards began to be required. Today there are almost 49 people here who require a voter identification card. The problem is that this has become popular. Another, it was said that the Republicans would be demanding the ID card not to avoid

rigging the elections, although they were clearly saying that, especially the Republicans, the voter ID card is indispensable to avoid fraud. All elections, all Republican voters and attack the parliaments and state courts that decided And/or were deciding the issue. Interestingly, on the other side, the Democrats said no, no, no, no. What the Republicans want is to prevent minorities from voting, because it is very difficult and even more difficult for voters who are part of minorities to obtain an identity card with a photograph. This would take votes away from Democrats in elections. So the discussion became polarized.

But the interesting thing is that the discussion became polarized in parliaments? 95% of Republican parliamentarians voted in favor of the portfolio. Only 2% of Democrats voted in favor of the card. And when the issue was taken to the courts, the same polarization occurred. 75% of judges nominated by the Republican Party reaffirmed the need for the portfolio. And very few of the Democratic Party nominees agreed that the card was important to prevent election fraud. Well, then I was reading an article called Constitutional and of Alternative Fact, published at New York University, and Lowry saw an Elisson

Larsen And wrote I'm not. We cannot come to the conclusion that the judges, actually in bad faith, wanted to protect the parties that put them in power. What actually occurred was a vote based on unconscious elements and legal errors. In other words, so what? Said this American professor. It is clear that Republican judges watch Fox News, Fox News And for this reason they form an unconscious capable of and form a perception of the reality of the facts that shows them that the identity card is in fact indispensable, to guarantee fairness in elections. But Democratic judges,

because they watch MS NBC, have a different view and this influences their decisions, even if they do not have bad faith to decide, even if they are deciding based on their views on the law, they are unconsciously influenced for its values. But if this is true, as he says, these facts and Facts such as the one regarding the voter's identity card would be very similar to the electronic voting machine. These are facts that he says facts and alternative facts or worse, he has facts. These facts have to be dealt with in another way. They are

not even properly facts. Facts, not exactly opinions. These facts have to be treated very carefully because they reflect subconscious positions of group members. Now, if I admit that the judges themselves are reaffirming or denying laws Based on unconscious influences, what would happen if I gave these judges the possibility of controlling the rationality of the discussion regarding the need for a voter's identity card and , in our case here, one of the allegations that were made by the party and that were rejected by the Federal Supreme Court is simply that, expressly written, it says that the

TSE dictatorship is about the Telegram application. It is yet another attack on freedom of speech. It is an attempted fraud in the elections. He's Saying this is an attempt to rig the election. This is the same thing as any citizen or any supporter of the Republican Party. Saying that the voter's identity card is essential to guarantee the fairness of the elections. Myself. The fact has the same nature, that is, it is making an assertion that an attempt to fraud the elections is taking place. It is the same as saying that, in the United States, the

voter's identity card is essential to guarantee the legitimacy of voters. Elections And these attacks on colors occurred in the United States too, And no one ever imagined that this could be an obstacle and could be a reason to restrict freedom of speech. In our case, this was said here, but it was not extracted or demonstrated, or through evidence, and much -1 justification that this statement would be drawing an imminent and concrete threat of attack or damage to nearby public institutions. Or please. I will take advantage and it is very well put on the issue of

trust in institutions. And then I want to return to the topic of media And social responsibility that was raised by everyone about the responsibility of all of us to make this change, to have this change in attitude, including in behavior on social networks. Social networks are a fairly new phenomenon. I was talking about the history of TV and the press, then radio, then TV. And now we have social networks even challenging traditional media. I, who did a master's degree in journalism, realized very clearly that I did the first year of my master's degree in Journalism,

which was in Denmark, in 2012. I did the second year four years later, in Amsterdam, 2016. There was a break in the middle , so much so that journalism changed in just those four years. It was incredible, imagine from then until now, journalism is communication through social media. But I now see with a certain optimism in relation to traditional media, even through this need for a new attitude of society in the behavior of social networks, that the time has come precisely for the re-emergence of professional journalism. I see it clearly that this is the time

for professional journalism to become as relevant as it was in the past. But to do that he has to be a professional. And the great criticism that social networks have made in the last ten 15 years. The media was precisely the exercise of the monopoly of virtue And the dissemination of truth by journalists who were often denied on social media, on Twitter, in videos, because they were not telling the truth. And when journalism says we are providing credible information and this true information is a simple person on the social network, on Twitter, denies this journalist

It looks very ugly. And this was the great discredit, in my opinion, that traditional journalism has suffered in recent years and that now, in a kind of rebound effect, social networks are suffering because social networks have also become a major channel for disinformation. That's why, concluding my brief Contribution on this topic, I understand that professional journalism and Gazeta have really made a fundamental contribution to this process. They have every opportunity to rise again now, while those who are trying to double down, even allying themselves with the establishment, doing all forms of distribution, including disseminating news

that is to the liking of the powerful, but not necessarily true to what they expect the people, this media, will fail more and more. And this is not just my hope, obviously it is too, but in my opinion, it is a fact of reality, due to what we have already experienced in recent years, A decline in the media, not a huge crisis, people talking about the end of journalism, in fact, that would no longer exist while social networks were on the rise. And now we see the opposite movement. But I conclude with the sentence that

started my speech here. For professional journalism to survive, it needs to be professional, And to conclude, there is something even more serious in all of this is that the person who is the victim of the tweets, Minister Alexandre de Moraes, is also the one who orders the deletion and blocking of the account. And sometimes I wanted to contrast Professor Todd's position a little with something Professor Jónatas said. When we talk about freedom of speech, we need laws, clear laws and we need to provide legal certainty to this debate. But I wanted to raise this question.

What if this type of restriction were made via the Judiciary? But if it were done through a very well-intentioned and preventive action by the Legislative Power, we would admit this type of restriction and under the argument that we would be under the shelter of the law and clear and abstract laws so I would like to hear it. And, if so, what are the criteria for this legislation? As said, let's see. There is no freedom of speech, is there? It is not absolute. For example, there is no freedom of speech between two businessmen to establish a

cartel between them. It is not, therefore, there is no freedom of speech to put in a contract, say, someone's duty to kill another person. In other words, there are restrictions. There has always been and it is always said that incitement to hatred and violence, say, defamation, for example, we would all be very displeased if someone came to spread Falsehoods about us, about our honor, our good name, accusing us of things that we didn't and couldn't do it, right? Therefore, we all agree that there is a need to restrict. Of course, as that 15th century medical

alchemist said, Paracelsus, is not. The difference between medicine and poison. It's the dose. Is it not? Let's say, the medicine cures up to a certain point and after a certain point, it kills. And we don't want, let's say, in the name of defending institutions and democracy, To jeopardize the institutions themselves. And democracy, it's not. Therefore, we have to, in fact, find reasonable balances here. Is it not? We have to be proportional and sometimes there may be a margin of error. But of course the best way to avoid the risk of error is to have general

and abstract laws that are as clear as possible, which apply to everyone through uniform jurisprudence. Also, don't zigzag and don't be selective. It is not trying to use concepts as much as possible. as determined as possible, because, for example, talking, talking, sometimes in fake news is very vague, Because what for some is fake news for others is true, isn't it? Therefore, we have to make an effort here. For example, talking about phobias is not. No, you cannot, for example, if a person thinks that gender identity affirmation surgeries are bad for the teenagers involved. And she

says that she cannot immediately be accused of being transphobic and a victim of digital lynching or professional retaliation, because these are delicate issues, they are complex issues, they are issues with nuances. These are issues on which reasonable people disagree and therefore must be discussed from different points of view, based on facts, etc. And therefore, restrictions should be minimal. You cannot bring ideologically charged concepts, which are concepts of political struggle, of ideological struggle that have little or nothing legal to, let's say, allow, let's say, a safe rise as like a drift net that is placed in

the sea and caught all kinds of fish, let's say those that you can catch and those that you can't catch. Therefore, deep down, there has to be some care with the mesh, let's say, of these restrictions. Of course, we also have to see that What we say is that the coordination between the different powers is also very important and that each power does not go beyond, let's say, its own, its competences. It's not, let's say and no, it's not called all this, all this power of restriction, it's not. It also has to be balanced between

the Legislature, the judiciary, the administration, the regulators, and civil society itself, which must act as a constant watchdog to also draw attention to the excesses, sometimes of the Legislative Power, which uses sometimes imprecise and indeterminate concepts. Americans have the wait for it doctrine. It is not the case that when a concept is so vague that it does not allow us to know what is prohibited and what is permitted, it should be considered unconstitutional. Therefore, it is not just one, another note that I would like to leave, which is that these concepts can be dangerous from

a criminal point of view, but they can also be dangerous from an administrative point of view, when it comes to withdrawing a license from a media outlet, an authorization. In other words, we cannot only focus on Criminal Law, but on Administrative Law and Civil Law, because sometimes Claims for compensation, for example, against a media outlet, etc. Sometimes they have a more drastic and more serious effect in terms of censorship and self-censorship. It is not the fear of a request for compensation from a politician, a group, etc. Regarding a media outlet that limited itself, let's say,

to conveying a certain opinion, Let's say, the risk of a disproportionate initiation into sport, which can sometimes be worse than a criminal rule. For example, in Portugal I have already had an intervention, Let's say, in one in which, at a certain point, compensation was requested for these issues of Freedom of Speech, etc. Something a journalist says. So there was a claim for compensation against the journalist, against the newspaper, which if the courts had rejected, it would have been the atomic bomb and the newspaper would have gone bankrupt. And therefore, we must also apply the principle

of proportionality, not only in criminal law, which is very important, but be alert in all other areas, because it applies in all areas, namely in Administrative Law and civil law, particularly civil liability. We received some questions here, so I'm going to read here a question that I think relates very specifically to this speech by the professor from Nantes, which is the following and a question asked by Tiago Vieira, who presented at BD Brazilian Institute of Religious Law In the constitutional theory of fundamental rights there is a dogmatic concern to always preserve the core or essential

content of fundamental rights when in conflict with each other. Because there is no hierarchy between fundamental rights like that. And then, of course, this is a question that would give rise to another panel. But I didn't want to stop asking you. So What is the core or essential content of freedom of speech? Since we are talking about the issue of balancing proportionality and the collision of rights here, what needs to be preserved in any circumstance, so that we do not nullify freedom of speech when it collides with other fundamental rights? I can only say one

very serious thing: I think the freedom to discuss delicate and controversial issues, because freedom of speech cannot be just for pleasantries and innocuous things, right? Therefore, sensitive, politically ideological, scientifically, religiously and controversial topics should be able to be discussed freely. In other words, we cannot have freedom of speech just to talk about The weather or just to talk about food, or just to talk about football. It is not important that it is also these and those subjects. I would add just in the same line as freedom of speech and tolerance, listening to those who think

differently from me, because otherwise it is not freedom of speech that only those who think the same way, in the same sense only, but concretely placing the professor the essential core of the element dogmatically the theme of the essential core of the right to freedom of speech is something theoretically quite difficult to delimit, because we would be talking about the possibility, or rather, we would be talking about the extent to which The right to freedom of speech can be restricted. The problem is that the right to freedom of speech, when minimally restricted, already has its

essential core and is affected. The essential core of the liber of the right to freedom of speech can be affected by a minimum restriction. So it seems to me that the only way to protect yourself, in fact, is the protection of Freedom of Speech has to do with defining its essential core. And that's why, in my opinion, it can never be restricted. It can never be restricted before giving those who may violate a fundamental right through its expression the possibility of correcting their behavior. Only when he proceeds to carry out acts that can obviously and

concretely justifiably harm, is a right and therefore confirm an urgent public need, and that the right to freedom of speech can be restricted. Now, when it is restricted, its essential core is attacked. No. There is no way to say I can. In other words, I cannot restrict and at the same time preserve the essential core. He is. It is a right that cannot be restricted. In that sense, in my opinion, very interesting. I think we took a very interesting path in this panel, starting from the specific case to dealing with general principles and ending with

a very philosophical discussion around the right to freedom of speech and that was our objective here. So, thank you very much to our panelists.