Case Summary and Outcome

The Supreme Federal Court of Brazil ruled that a law aiming to restrict freedom of expression and of the press during the electoral period was unconstitutional. The law stated that during the electoral year, radio and television stations were prohibited from employing special effects, editing, or other audio or video resources that in any way degraded or ridiculed political entities, and could not broadcast political propaganda or express opinions about these entities. The Court held that in a democracy, freedom of expression protects not only thoughts and ideas but also opinions and criticisms of public officials, ensuring citizens’ participation in collective life – especially during elections. The Court emphasized that freedom of expression encompasses all types of opinions, including those that are doubtful, exaggerated, condemnable, satirical, humorous, and erroneous.

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Facts

On August 24, 2010, the Brazilian Association of Radio and Television Broadcasters (ABERT) filed a Direct Action of Unconstitutionality (ADI) in the Supreme Federal Court, arguing that provisions (items II and III) of Article 45 of Law No. 9.504/1997 (the Electoral Law) were unconstitutional.

Article 45, II and III of Law No. 9.504/1997 stated: “[f]rom July 1 of the election year, radio and television stations are prohibited, in their normal programming and news broadcasts: […] II- use special effects, editing, or other audio or video resources that in any way degrade or ridicule a candidate, party, or coalition, or produce and broadcast a program with this effect; […] III- broadcast political propaganda or disseminate opinions, favorable or unfavorable, about a candidate, party, coalition, its organs, or representatives.”

The Association argued that these items imposed a chilling effect on radio and television stations, compelling them to “avoid the dissemination of controversial political topics to prevent accusations of promoting favorable or unfavorable opinions about a particular candidate, party, coalition, its organs, or representatives.” [p. 1 of the monocratic preliminary decision] It added that these provisions impeded the broadcast of satires, cartoons, and humorous programs involving political issues or figures during the electoral period. The Association acknowledged that the legislature sought to ensure the integrity of the electoral process but emphasized that freedom of expression, in all its aspects, is crucial for a fair electoral procedure: “[t]he idea of a fair electoral process does not exclude but presupposes the existence of a free, open, and robust marketplace of ideas and information, achievable only in societies that fully guarantee freedom of expression, freedom of the press, and the diffuse right of citizenship to information.” [p. 1] Therefore, it argued that the legislation infringed Article 5, items IV, IX, and XIV (freedom of expression, thought, communication, artistic expression, and access to information), as well as Article 220 (freedom of the press) of the Brazilian Federal Constitution, representing political and artistic censorship. [p. 1]

On August 26, 2010, the Supreme Federal Court, per Justice Ayres Britto, in a preliminary monocratic decision, suspended Article 45, II and III of the Election Law. He found that any form of prior censorship is prohibited, stating that “it is not for the State, through any of its organs, to define in advance what individuals and journalists can or cannot say.” [p. 2-3] The Judge stated that “there is no half freedom of the press or under the grasp of prior censorship, regardless of the state power from which it comes.” [p. 3, bolded in the original] Citing Articles 220 and 5.º of the Federal Constitution, Justice Britto affirmed that the freedoms of thought, creation, expression, and information are “personal rights” and “overarching rights“, making the press in Brazil a crucial socio-cultural institution for democracy. [p. 3, bolded in the original]

Citing the First Amendment of the United States Constitution, Justice Britto emphasized the necessary operational connection between the press and democracy. He also quoted Thomas Jefferson, who said, “were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.” [p. 4]

Justice Britto also highlighted that humor and the caricatural expression of opinions and ideas are part of the definition of “press” and constitute “journalistic information”, thereby affirming freedom of the press. Justice Britto stated that “the concrete exercise of this freedom in its entirety ensures the journalist the right to express criticisms of any person, even in a harsh, forceful, sarcastic, ironic, or irreverent tone, especially against authorities and state apparatus.” [p. 4-5] He noted that freedom of the press “is absolute at all times, places, and circumstances. Both in non-electoral periods and during general elections.” [p. 5]

Accordingly, Justice Britto suspended the effectiveness of item II of Article 45 of Law 9.504/97 and provided an interpretation in accordance with the Constitution to item III of Article 45 of Law 9.504/97, emphasizing that there is only an acceptable prohibition “when journalistic criticism or material clearly turns into political propaganda, unmistakably favoring one of the parties in the electoral dispute. A situation to be evaluated on a case-by-case basis and always post facto by the Judiciary. Therefore, no room for any kind of prior censorship.” [p. 6-7, bolded and underlined in the original]

On September 2, 2010, the Supreme Federal Court, by a majority opinion, confirmed the decision individually taken by Justice Ayres Britto, which was also a preliminary decision of the Court itself. Despite differing opinions, all Justices concurred on the unconstitutionality of the provisions of the electoral law. However, they diverged on the approach: rather than preliminarily suspending both items of Article 45, Justices Toffoli, Lewandoski, and Marco Aurélio opted to declare partial unconstitutionality through an interpretation in accordance with the Constitution.

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Decision Overview

In the final judgment on June 21, 2018, Justice Alexandre de Moraes delivered the unanimous decision of the Supreme Federal Court.

The central issue for the Court was whether legislation aimed at protecting the honor and dignity of political agents in electoral competition by prohibiting media manipulation related to candidates, parties, and coalitions, as well as restricting the dissemination of opinions on the electoral process in broadcasting, would be considered censorship or not. The applicable law includes Articles 5, IV, IX, and XIV (freedom of expression, thought, communication, artistic expression, and access to information) and 220 (freedom of the press) of the Brazilian Federal Constitution, along with relevant precedents from the Supreme Court and regional and international legal systems. The analysis was conducted in contrast to the electoral law challenged by the Brazilian Association of Radio and Television Broadcasters.

Justice Alexandre de Moraes concluded that items II and III of Article 45 of the Election Law were unconstitutional because they “interfere directly and in advance with ARTISTIC FREEDOM — by intending to define the format and content of programming and restrict creativity itself, an element of freedom of expression, by establishing a prohibition, during the electoral period, of ‘special effects, editing, or other audio or video resources’ concerning candidates, parties, or coalitions — and with JOURNALISTIC AND OPINION FREEDOM — by intending to prevent the dissemination of ‘favorable or contrary opinions’ about candidates, parties, and coalitions.” [p. 22, uppercased in the original] He also declared that paragraphs 4 and 5 of the same Article 45 were unconstitutional “due to the impossibility of carrying out any type of prior censorship on the content disseminated by radio and television stations during the electoral period.” [pp. 21-22]

Justice Moraes found that, although the Brazilian Constitution demonstrated concern about the risks arising from the capture of social communication by organized interests, when it comes to fundamental rights, limitations are always strict and exceptional. He noted that, within the context of social communication, the prevailing principle is the freedom in the organization, production, and dissemination of informative content, as per Article 220 of the Federal Constitution which states that “[n]o law shall contain any provision that may constitute an impediment to full freedom of the press, in any medium of social communication.” [p. 13] Analyzing Article 220 in conjunction with Article 5 of the Federal Constitution, Justice Moraes emphasized that “the right to information, granted to the individual citizen, implies the recognition of a corresponding freedom for the agents involved in the activity of social communication – radio and television broadcasters, as well as any press outlets – not to be subject to ‘any censorship of a political, ideological, and artistic nature.’” [p. 13]

Citing cases judged from the Spanish Constitutional Court (Judgment 47/2002, Judgment 126/2003  and Judgment 20/2002), Justice Moraes emphasized that freedom of expression is directly related to the democratic principle and broad political participation: “[i]t is aimed not only at protecting thoughts and ideas but also opinions, beliefs, making value judgments, and criticisms of public officials, in order to ensure the real participation of citizens in collective life.” [p. 14]

With reference to the ruling of ADI 4815/DF (The National Association of Book Publishers v. the President of Brazil), delivered by Justice Carmen Lúcia, he underscored that the Court has already rejected the possibility of “private prior censorship”, which, in that case, involved requiring prior authorization for the disclosure or publication of biographical works by the person being portrayed. [p. 14]

Justice Moraes referenced the U.S. case, New York Times vs. Sullivan, in which the U.S. Supreme Court recognized the “duty of the citizen to criticize as much as it is the duty of the public official to administer.” [p. 16] He stressed the concept of the free marketplace of ideas, citing cases such as Abrams v. United States and Whitney v. California, and described it as “in which the free clash between different opinions becomes indispensable, rejecting the existence of absolute truths and allowing the open discussion of different ideas, which may be accepted, rejected, discredited, or ignored; however, never censored, selected, or restricted by the Public Power […].” [p. 17] The cases Cantwell v. Connecticut and Kingsley Pictures Corp. v. Regents were also referenced to emphasize that “all existing opinions are possible in free discussions since it is part of the democratic principle” and that “[t]he fundamental right to freedom of expression, therefore, is not only aimed at protecting supposedly true, admirable, or conventional opinions but also those that are doubtful, exaggerated, condemnable, satirical, humorous, as well as those not shared by the majorities.” [p. 18]

Justice Moraes also based his decision on the ruling of ADPF 130/DF by the Supreme Federal Court, where it was held that “journalistic criticism, due to its inherent relationship with the public interest, is not a priori susceptible to censorship, even if legislatively or judicially attempted.” [p. 16]

Emphasizing that even erroneous statements are protected by freedom of expression, he mentioned the case Alves da Silva v. Portugal, from the European Court of Human Rights. Quoting part of the decision of this Court, he emphasized that freedom of expression “applies not only to ‘information’ or ‘ideas’ that are favorably received or considered as harmless or indifferent but also to those that offend, shock, or disturb.” [p. 18] He also cited the cases Smith v. California and Speiser v. Randall to note that “[a]ny laws or normative acts tending to constrain or inhibit freedom of expression through mechanisms of prior censorship are, therefore, unconstitutional.” [p. 21]

Accordingly, Justice Moraes concluded that items II and III of Article 45 of the Election Law were unconstitutional as they promoted prior censorship. Paragraphs 4 and 5 of the same Article 45, which define “special effects” and “editing”, were declared unconstitutional by extension.

Following Justice Alexandre de Moraes’s opinion, Justice Fachin referenced the judgment of ADI 2566/DF, underscoring that “restrictions on broad freedom of expression must be interpreted in light of what is strictly provided by law.” [p. 32] Citing Article 13 of the American Convention on Human Rights, he reiterated that prior censorship is incompatible with freedom of expression and thought, allowing only eventual subsequent responsibility. [pp. 32-33] He also mentioned the Advisory Opinion on the Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, requested by the Government of Costa Rica on November 13, 1985, from the Inter-American Court of Human Rights. That Court had concluded that there are two dimensions of freedom of expression: “it requires, on the one hand, that no one be arbitrarily deprived or prevented from expressing their own thoughts and, therefore, represents an individual right; but also, on the other hand, a collective right to receive information and to know the expression of others’ thoughts.” [pp. 33-34]

Justice Luís Roberto Barroso highlighted that freedom of expression is a presupposition of democracy, distinct from a guarantee of truth or justice. As he stated, “[t]hose who choose to come into the public space must accept a certain resignation to constructive criticism, destructive criticism, well-informed criticism, uninformed criticism, criticism from those with affected interests, and even valid criticism that we must acknowledge and seek to improve upon. Therefore, freedom of expression is not a guarantee of justice or truth; it is a guarantee of a freedom that is a prerequisite for the exercise of other freedoms.” [p. 42]

Justice Rosa Weber emphasized that various factors can influence voters: “[v]oter influence can take infinite forms: some are enchanted by the ‘beauty’ of the candidate; others by the ‘beauty of their voice’; others because they see them as ‘good’ people, ‘religious’, or practicing ‘clientelism’, viewing such behavior as positive; others are captivated by their ‘promises’; others because they see them as ‘leaders’ capable of magically changing reality; others because they consider the candidate a ‘friend’; others because they are familiar with the candidate’s ‘previous work’ and believe it will be repeated; ultimately, others identify with the candidate based on numerous characteristics, such as gender, skin color, regional origin, or some advocated ’cause’. Some analyze proposals and choose the candidate based on what they consider the best. Of course, there are those who have no idea whom they will vote for and are influenced by what they see or hear in the media, such as radio, TV, and, more recently and intensively, the internet.” [p. 48] Accordingly, she concluded that “it does not seem proportionate to restrict and sacrifice […] freedom of expression and the press, as it represents a tiny portion of the spectrum of voter opinion formation, which is extremely valuable for democracy.” [p. 48]

Justice Luiz Fux also referenced Article 13, item 2, a, of the Pact of San Jose of Costa Rica, as well as Article 10 of the European Convention on Human Rights, to argue that “[n]ot coincidentally, some of the main transnational instruments on human rights are clear in emphasizing that freedom of expression, while holding a prominent place in the array of fundamental guarantees ensured by community law, has limits when its exercise results in a disregard for the rights of others.” [p. 64] He concluded that, while acknowledging the legitimacy of the electoral legislation’s aims, “the patent legitimacy of the sought-after purposes by the legislator clashes with the formula used for its implementation, notably because, in my view, the a priori exclusion of technical resources and artistic approaches, as well as the proscription of opinions on public figures or topics, unquestionably verges on censorship — a practice categorically rejected by the Constitution (Arts. 5, IX, and 220, §2), in accordance with various legislative enactments and international documents, including the American Convention on Human Rights (Art. 13.2) and the Declaration of Principles on Freedom of Expression of the Inter-American Commission on Human Rights (§ 5). It is also noteworthy to mention the principles outlined in the Declaration of Chapultepec (§ V)”. [p. 67] Justice Fux reiterated Advisory Opinion 5/1985 issued by the Inter-American Court of Human Rights to emphasize the inadmissibility of prior censorship: “[p]rior censorship is excluded as a legitimate instrument to limit freedom of expression, allowing only the legal assignment of subsequent responsibilities, subject to certain requirements (IACHR, OC 5/1985, §§ 9 and 10)”. [p. 68]

Justice Gilmar Mendes reflected on the difficulty of defining the concept of art. Citing The Case of Mephisto (BVerfGE 30, 173), from the German Constitutional Court, he highlighted the conceptions of artistic freedom that were established. In that case, “[t]he Constitutional Court recognized that the depiction of reality falls within the scope of protection of the right to artistic freedom, meaning that so-called engaged art would not be outside the protection granted by Article 5, III, of the Basic Law.” [p. 91] He added, based on the same case, that “[a]s an integral element of the system of values of individual rights, the right to artistic freedom was subordinate to the principle of human dignity (art. 1st), which, as a supreme principle, establishes the general guidelines for other individual rights.” [p. 92]

Justice Mendes also referenced several judgments of the Brazilian Supreme Federal Court regarding artistic freedom and its limitations. He mentioned HC 83.996-RJ, which granted the habeas corpus petition filed by a well-known theater director accused of committing acts deemed obscene after the conclusion of a play in response to audience jeers. [pp. 94-96] He also referred to the National Association of Book Publishers case where the Court had held that prior authorization for biographies constitutes private prior censorship. [pp. 96-97]

Regarding freedom of the press, Justice Mendes recalled that it has been proclaimed since the Virginia Bill of Rights of 1776, and he quoted Article 12, “freedom of the press is one of the great bulwarks of liberty and can never be restrained but by despotic governments”. [pp. 97-98] He also cited the First Amendment to the Constitution of the United States of America from 1791, quoting that “[c]ongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” [p. 98] According to Justice Mendes, there are two traditions or models of interpretation of the First Amendment in the U.S.: “the first, a liberal conception, emphasizes the functioning of the ‘marketplace of ideas’ and traces back to the dissenting opinion of Oliver W. Holmes in the famous Abrams case; the second, a civic or republican conception, highlights the importance of public and democratic deliberation and originates, in addition to the foundations laid by James Madison, in the opinion of Louis D. Brandeis in the case Whitney v. California, culminating in the landmark case New York Times Co. v. Sullivan.” [pp. 99-100] Still revisiting cases decided by the U.S. Supreme Court, he mentioned Pierce v. United States, Gitlow v. New York, and Whitney v. California to demonstrate that this was the Court’s position in favor of laws and administrative measures restricting freedom of the press.

Justice Mendes added that in Germany, the Lüth case (BVerfGE 7, 198) was the first in a consistent jurisprudence of the Federal German Court that “constructed the concept of a double dimension, double character, or dual aspect of fundamental rights, emphasizing, on the one hand, the subjective or individual aspect, and on the other, the objective notion or the institutional character of freedom of expression and of the press.” [p. 100 and pp. 104-106] He also discussed the cases Lebach (BVerfGE 35, 202), in which, according to the judgment of the German Constitutional Court, “the right to report on criminal events remained intact, even if subject to possible restrictions required by the protection of the right to personality”, and Spiegel (BVerfGE 20, 62, 1966), “a milestone in defining the meaning of press freedom in democracy and reveals the ‘two faces of Janus’ of this freedom: the individual personal and the institutional community.” [pp. 110-111]

Justice Mendes’s opinion also mentioned the judgment of ADPF 130/DF, a case in which the Supreme Court declared a pre-constitutional law aiming to regulate “the freedom of expression of thought and information” unconstitutional.

Justice Mendes concluded that, although “the possible dissemination of opinions, satires, cartoons, manipulations, or any other form of expression that supports or attacks a particular candidate or coalition can indeed create an imbalance capable of influencing the electoral process”, prohibiting any manifestation in this regard “is an extremely disproportionate and unnecessary measure.” [p. 129] He added that “the challenged provisions tend to muzzle expressions by artists or the press, who would undoubtedly be hesitant to express opinions without knowing for certain whether their conduct could be classified as harmful or favorable to a particular candidate or coalition.” [p. 129] Accordingly, he followed the opinion of Justice Alexandre de Moraes and also declared the unconstitutionality of items II and III of Article 45 of Law 9.504/1997, as well as, by extension, paragraphs 4 and 5 of the same article.

Justice Celso de Mello reflected on laughter, humor, and the right to criticize, opine, and dissent, and cited the judgment of ADPF 187/DF, where the Court concluded that freedom of expression is “one of the most precious privileges of citizens in a republic founded on democratic principles” and protects even ideas considered “strange, unbearable, extravagant, audacious, or unacceptable”, in accordance with the Brazilian Constitution and Article 13, §5, of the American Convention on Human Rights. [pp. 137-138]

Justice Mello referenced the dissenting opinion of Justice Holmes in the case of United States v. Rosika Schwimmer, quoting that “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.” [p. 139] He also made reference to Judgments No. 6/1981, No. 12/1982, No. 104/1986, and No. 171/1990 of the Spanish Constitutional Court as they highlighted “the essential need to preserve the practice of freedom of information, including the right of criticism that emanates from it, as one of the axiological supports that inform and confer material legitimacy on the very conception of the democratic regime.” [pp. 141-142] He also cited the European Court of Human Rights cases Handyside v. United Kingdom and Lingens v. Austria to emphasize that it is inadmissible to try to reduce the right to information and the right (and duty) to inform to the supposedly pure and objective reporting of facts. According to him, the press has the mission to publish information and ideas on matters of public interest. [p. 142]

Justice Mello concluded that “[t]he rule set out in item II of Article 45 of Law No. 9.504/97 is in conflict with the constitutional regime of freedoms of thought, notably with freedom of expression and freedom of the press because – it is never too emphasized – the prohibition it entails improperly frustrates, hinders, and obstructs the dissemination of humorous programs or the use of any other audio or video resources related to protagonists of the political-electoral process.” [p. 144] He reinforced that, in addition to being part of Brazilian constitutional law, the rejection of censorship is “a commitment that the Brazilian State has undertaken internationally, as Brazil, among many other instruments for the international protection of human rights, subscribed to the Universal Declaration of Human Rights, promulgated by the Third General Assembly of the United Nations on December 10, 1948.” [pp. 148-149] As Justice Mello reminded, freedom of expression and of the press are guaranteed by the International Covenant on Civil and Political Rights (Article 19), the American Declaration of the Rights and Duties of Man, and the American Convention on Human Rights. [pp. 149-150]

Therefore, the Court held that Article 45, items II and III, of the “Election Law,” which prohibited radio and television stations from using special effects, editing, or other resources that could degrade political entities and from broadcasting political propaganda or expressing opinions about these entities, was unconstitutional, as well as, by extension, paragraphs 4 and 5 of the same article.

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