Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The Supreme Federal Court in Brazil held that the dissemination of information about a planned protest serves as sufficient prior notice to law enforcement authorities. A group of social movements planned a protest on a Brazilian highway and advertised the protest in their organisational material. The Federal Highway Police were aware of the planned protest and informed the General Counsel for the Federal Government, which then sought an interdict against the protest. Although the interdict was granted, the social movements went ahead with the protest and then sought a revocation of that interdict. That revocation was denied and the social movements were fined for having conducted the interdicted protest and they then approached the Supreme Federal Court. The Court emphasized the importance of public participation and that the reality that this will lead to a moderate impact on the state. The Court held that the protest and the manner of notification was protected by the constitutional right to a peaceful protest.
In 2009, various Brazilian social movements (Articulação Popular do Baixo São Francisco, CONLUTAS, CPP, Comissão Pastoral da Terra, MPA, SINDIPETRO AL/SE, PSTU, MST, SINDICAGESE/SE, and SINTES/SE) planned to hold a protest on the BR 101 Highway. The protest would be held on April 1, 2009, at 9 am, and was to peacefully protest “against the transposition of the São Francisco River”.
The Brazilian Office of the General Counsel for the Federal Government was approached by the Federal Highway Police (PRF), to inform them about the demonstration. On March 31, 2009, The AGU then filed a lawsuit against the entities that would participate in the demonstration, seeking an injunction against a “threat of nuisance or usurpation of Brazil’s possessions” to prevent the social movements paralyzing the BR 101.
The Judicial Section of the State of Sergipe granted the action on that same day, holding that the social movements could not hold the protest on April 1 and, if they did, each defendant would be fined R$ 21,000.00 (approximately US$4 000 in 2023). Judge Arthur Napoleão Teixeira Filho decided the case on the grounds that the entities had not formally notified the competent authority.
Despite the Court’s decision, the social movements went ahead with the protest on April 1. They believed that art. 5, XVI of the Federal Constitution does not establish any request for prior authorization. In addition, as the PRF was aware of the protest, and the police accompanied the demonstrators throughout the event, this ruled out the illegality of the demonstration and its resulting fine.
The social movements then requested a revocation of the preliminary injunction. The Court dismissed this and the social movements appealed the dismissal to the TRF of the 5th Region.
The Federal Regional Court of the 5th Region (TRF5) confirmed the decision that prohibited the protest and imposed a fine on each of the defendants. TRF5 held that the right to assembly is not absolute, and that there is the “requirement of prior notice for the authorities to examine the convenience and opportunity in the place that allows the exercise of locomotion and that would be compromised” [p. 3].
The social movements, appealed to the Supreme Federal Court (STF), arguing that the prohibition constituted an attack on the exercise of citizenship.
Justice Edson Fachin heard the appeal at the STF. The main question for the Court’s determination was the interpretation of art. 5, XVI, Federal Constitution, which provides that “all persons may hold peaceful meetings, without weapons, in places open to the public, regardless of authorization provided that they do not frustrate another meeting previously called for the same place, subject only to prior notice to the competent authority”. The Court sought to determine how the obligation to notify the competent authority of a public and peaceful meeting could be satisfied.
The Court stated that in “a democratic society, public space is not only a place for circulation, but also for participation. There is a modest cost in democratic coexistence and it is in relation to it that any restriction on such an important right must be estimated” [p. 2]. It also noted that the fact that the demonstration was widely publicized in the entities’ brochures made it possible for the authorities to be aware of the event.
Accordingly, the Court found that the authorities had been informed about the protest, not requiring a personal or registered notification. It held that “The constitutional requirement of prior notice regarding the right of assembly is satisfied with the dissemination of information that allows the public power to ensure that its exercise takes place peacefully or that it does not frustrate another meeting in the same place” [p. 3].
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