Case Summary and Outcome

The Supreme Federal Court of Brazil found a ban on the use of sound amplifying devices during public demonstrations to be unconstitutional. A decree issued by the Governor of the Federal District of Brazil forbade the use of such equipment in areas of Brasília, the federal capital, including Três Poderes Square and the Esplanade of the Ministries which were key locations for protests. The Governor of the Federal District claimed that the ban was justified in order to maintain social order and ensure the uninterrupted work of employees, such as politicians, who would otherwise be “disrupted” by noisy protests. The Supreme Federal Court disagreed, finding that the decree was unconstitutional under Article 5 of the Brazilian Constitution protecting the right to peaceful assembly.

This case was contributed by the Open Society Justice Initiative in collaboration with Article 19.

Facts

In 1999, the Governor of the Federal District of Brazil (Governor) issued a decree forbidding the use of ‘sound trucks’ (i.e. vehicles that were outfitted with large speaker systems and similar sound-amplifying devices) in certain parts of Brasília, the federal capital, during public demonstrations. The areas subject to the decree included the Três Poderes Square, the Esplanade of the Ministries, and the Buriti
Square. The Governor justified the decree by claiming that it was necessary to maintain social order and that noisy demonstrations would disrupt the regular labor activities of politicians, justices, and other employees.

In response, the Labour Party, the National Confederation of Workers in Agriculture (CONTAG), the National Confederation of Workers in Education (CNTE), and the Unified Workers Central brought a case on the basis that the decree was unconstitutional. Their complaint argued that the decree violated Article 5(XVI) of the Constitution of Brazil, which establishes the right to peaceful assembly in public places.

Decision Overview

Justice Ricardo Lewandowski delivered the opinion of the Supreme Federal Court of Brazil, holding that the decree was unconstitutional under Article 5(XVI) of the Constitution of Brazil.

Justice Lewandowski stressed the importance of the right to freedom of assembly as an element of the right to freedom of expression, whether that right be exercised in the form of individual speech or by spontaneous action by different groups. Justice Lewandowski noted the historical importance of the right as a means of struggling against absolute monarchs. He went on to cite Article XVI of the Declaration of Rights to Pennsylvania’s Constitution of 1776, noting that it was the first state constitution guaranteeing the right to freedom of assembly. Justice Lewandowski also cited Title I of the French Constitution of 1791 and Article 20 of the Universal Declaration of Human Rights.

Justice Lewandowski observed that the right to freedom of assembly has been recognized by nearly all constitutions of modern democracies and has been recognized as an individual right by every constitution since Brazil became a republic. With regard to the Constitution of 1988, which was the relevant constitution to the present proceedings, Justice Lewandowski stated that Article 5(XVI) of the Constitution set limits and conditions on the exercise of the right to assembly. The provision limits the right to assembly to occasions that meet the following three criteria: (i) it is a peaceful assembly without arms, (ii) where there has been a simple prior notice to the competent authority about the assembly and, (iii) the assembly does not thwart another gatherings taking place in the same location at the same time.

Justice Lewandowski observed that the decree prevented freedom of assembly at the Três Poderes Square, an open public area, that was specifically planned for public demonstrations in Brasília. Justice Lewandowski also stressed that the prohibition of sound devices impeded free expression by muting speech and, consequently, limiting the impact of the gatherings and rendering them ineffective.

Justice Lewandowski recognized the importance of prior notice so that the proper authorities could regulate aspects of the assembly, such as length, to not jeopardize the everyday functioning of society (e.g. the ability of people and vehicles to move freely on public roads). Justice Lewandowski concluded that any restriction on fundamental rights must be adequate, necessary, and proportional. Justice Lewandowski found that the decree did not meet this test.

Justice Eros Grau added that, because constitutional rights could only be limited by law, an executive decree was not a constitutionally valid limitation on the right to free assembly.