Content Regulation / Censorship, Hate Speech, Indecency / Obscenity, Religious Freedom
Jersild v. Denmark
Closed Expands Expression
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The Brazilian Supreme Court found that a rule in a public tender for serving as a military officer was unconstitutional because it prohibited officers from having tattoos. The appellant, Mr. Lopes, had been excluded from becoming a military officer because of a tribal tattoo on his leg. The Brazilian Supreme Court held that his tattoo should not be an impediment to him serving as a military officer in the State of São Paulo. According to the Brazilian Supreme Court, tattoos are forms of expression and personality, and only where a candidate has a tattoo that expresses hate or is somehow incompatible with his public service can he be refused a position.
The appellant, Mr. Lopes, had been excluded from becoming a military officer because he had a tattoo on his leg. He challenged this exclusion before the Lower Court arguing that it amounted to a violation of the Brazilian Constitution. His exclusion was based on rules that were set out in the public tender for military officers, which established that tattoos were forbidden. Mr. Lopes reasoned that the tender requirement was unconstitutional because it was disproportionate, unreasonable and not provided by law. The Lower Court agreed with Mr. Lopes’ arguments, and granted a writ of mandamus.
The Court of Appeal, on the other hand, granted an appeal filed by the State of São Paulo of the Lower Court’s decision. The Court of Appeals found that as the rules regarding tattoos had been previously set out in the public tender and the candidate, Mr. Lopes, had been warned about these rules, he consciously assumed the risk of being excluded from being a military officer. Moreover, the Court of Appeal stated that military officers should follow the rules and, as Mr. Lopes was questioning one clear rule of the public tender, he was starting his career on a bad footing. Mr. Lopes then appealed to the Brazilian Supreme Court.
The Brazilian Supreme Court (STF) granted the appeal and held that Mr. Lopes should be considered in the public tender for military officers in the State of São Paulo.
The STF reiterated that all restrictions that are set out in tenders for public service must be based on express legal provisions. The STF acknowledged that in the military sphere the standards of presentation are higher than in other jobs. Nonetheless, the STF reasoned that where a state requirement for the performance of a public function interferes with the rights to free expression and personality it becomes possible, and even recommended, that the courts should intervene to determine whether such a restriction is constitutional. The STF went on to note that even where restrictions do have a formal legal basis, this alone would not necessarily render those restrictions constitutional. The STF noted that restrictions on obtaining public office would be unconstitutional where they are offensive to fundamental rights, disproportionate, or irrelevant. The STF concluded that obstacles to accessing positions must be strictly related to the nature and the functions to be performed
The STF then went on to consider the specific issue at stake in this case, namely the constitutionality of public tenders forbidding tattooed candidates. The STF began by considering the social evolution of tattoos; from their association with marginalized groups and illicit acts in the 19th Century, to its association with rebels when adorned by rockers, hippies, and punks in 20th Century. The STF observed that, nowadays, tattoos are a form of artistic expression. It also took into account the professionalization of the tattoo market, and the growing social acceptability of tattoos. To support this conclusion, the STF referred to an academic article that stated there were around 4,000 tattooists producing 1,000,000 tattoos per year in the United Kingdom. Moreover, there were almost 1,000,000 tattooed persons in Italy and 30% of North-Americans had tattoos. These statistics were found to show that, firstly, tattoos are a form of authentic expression and, secondly, tattooed persons do not violate either morality or the law. In light of this, the STF found that tattoos are an authentic form of freedom of expression. Therefore, a penalty for having a tattoo would amount to an interference with the constitutional right to freedom of expression.
The STF also noted that the restrictions on tattoos contained in the public tender could bring about inequality. Under Article 5 of the Brazilian Constitution, everyone is equal before the law. Accordingly, any unjustifiable general restriction on a group (e.g, tattooed persons) amounts to inequality and is, therefore, unconstitutional. In other words, unequal treatment can only be constitutional where there is a logical, objective and reasonable justification for the treatment. In this case, the STF had particular regard to the fact there was no correlation between the existence of a tattoo and the ability to carry out the public function. Therefore, it would only be possible to impose restrictions on an individual taking up office where that individual had a tattoo expressing hate, obscenity, terrorism or anything that would be incompatible with the public function to be performed (e.g., if the individual was a police officer, and he had a tattoo of a symbol for a criminal organization or a tattoo with a criminal meaning). The STF noted that the rule on tattoos under the Federal Act 12.705/2012 (Brazilian Army), which forbade tattoos that would compromise a soldier’s camouflage, had been vetoed by the President of the Republic of Brazil due to its lack of reasonableness and consistency.
The STF also made reference to comparative law from other countries on this issue. For instance, the STF noted that Section 1.8 of the U.S. Army Regulation 670-1, which set out the circumstances under which a tattoo could impede an individual’s access to the Army, tattoos are only allowed if they are capable of being covered by the uniform. German police officers and Portugese soldiers are similarly forbidden from having tattoos that are visible in uniform. On the other hand, the NAVADMIN 082/16, which revised the tattoo policy of the U.S. Navy, allowed certain visible tattoos as long as they did not contain content that was prejudicial to good order, discipline, and morale or are of a nature to bring discredit upon the naval service. In the Brazilian context, and as tattoos in themselves do not affect an individual’s competence to perform a public service, the STF found that any restriction on having tattoos based solely on their visibility would be unconstitutional.
The STF reasoned that as tattoos form part of the development of an individual’s personality, any restrictions on tattoos must only be provided in exceptional circumstances. In this regard, the STF acknowledged that freedom of expression is not absolute, and a tattoo could interfere with the performance of a public service if it was overly offensive to the values of human beings, inappropriate for the performance of the public service, amounted to incitement to imminent violence, made a real threat, or was obscene. The STF noted that these forms of expression fall outside the First Amendment of the U.S. Constitution. The STF recalled Miller v. California, in which the U.S. Supreme Court set out the “miller test” on obscene speech. The STF also made reference to Article 20 of the International Covenant on Civil and Political Rights which states that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited”. Regarding tattoos that have potential to incite violence, the STF made it clear that tattoos on candidates to public positions should not contain “fighting words” (i.e. words that provoke an immediate violent reaction).
In the present case, the STF concluded that Mr. Lopes’ tattoo, which was a tribal tattoo sized 13cm x 14cm, could not bar his admission as a military police officer. The STF noted that not only did Mr Lopes’ exclusion have no formal legal basis, the restrictions in the public tender were unconstitutional. In light of this, his appeal was allowed.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands expression because the Brazilian Supreme Court found that tattoos amounted to a form of artistic expression protected under the constitutional right to freedom of expression. The Brazilian Supreme Court also limited the circumstances under which an individual could be excluded from being considered for public service on the basis that they had a tattoo.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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