Case Summary and Outcome

The Brazilian Supreme Federal Court (STF)  overturned a lower court’s ruling that had imposed restrictions on a comedian’s routines and activities, declaring it an unacceptable case of prior censorship. In a provisional ruling issued in a criminal case, the lower court had broadly prohibited a comedian from making derogatory and humiliating comments during his shows, ordered the removal of his content from digital platforms, restricted his travel to no more than ten days outside the city without judicial approval, and required him to report monthly to the court. These measures were imposed at the request of the Public Prosecutor, who argued that the comedian’s routines could incite violence, spread hate speech, and undermine the dignity of vulnerable and minority groups. The Supreme Court ruled on a constitutional complaint, holding that the lower court’s decision violated the comedian’s freedom of expression and professional activity, constituting prior censorship and disregarding binding precedents that protect constitutional freedoms of the press and speech. The Court stated that its ruling does not exempt Lins, or any other individual, from civil or criminal liability in any ongoing or future legal proceedings.

Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.

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Facts

In 2023, the Public Prosecutor’s Office of the State of São Paulo, Brazil filed a criminal case against Leonardo de Lima Borges Lins, a Brazilian comedian known as Leo Lins. Lins is renowned for his controversial stand-up performances, and has a large social media audience, with nearly 3 million followers on Instagram and approximately 1.5 million subscribers on his YouTube channel. Lins began his career in magic shows before joining “Comédia em Pé” (a literal Portuguese translation for stand-up comedy), and later worked on various TV shows. Lins created the shows “Bullying Arte” (2021) and “Perturbador” (2023) after he was fired from a humor television show for a joke about a child with disabilities.

Based on concerns about the content of Perturbador, the Public Prosecutor’s Office filed a case before the Court for Crimes of Violence Against Children, the Elderly, People with Disabilities, and Victims of Human Trafficking (SANCTVS) of the District of São Paulo (No 1011931-27.2023.8.26.0050). In Perturbador, Lins made jokes on stereotypes about Brazilians and other countries; the Spanish language; rape, incest and bestiality; and people with disabilities.

The Public Prosecutor’s Office believed that the comedian’s routines could incite violence, spread hate speech, and undermine the dignity of vulnerable and minority groups. It sought the “Granting of a Precautionary Measure to Suspend the Exercise of Economic Activity”. This legal action aims to temporarily halt an individual’s or entity’s economic activities – such as performances or sales – while the legal proceedings are ongoing, preventing further potential harm to vulnerable populations during the investigation.

The Public Prosecutor’s Office requested that the court prohibit Lins from making any publications “with content that is derogatory or humiliating based on race, color, ethnicity, religion, culture, origin, national or regional background, sexual orientation or gender, disability or elderly status, children, adolescents, women, or any category considered a minority or vulnerable group”, as well as from making such comments in his performances, and it sought an order requiring him to remove any such content from his platforms, forbidding the comedian from leaving the city for more than ten days without judicial permission, and requiring him to report monthly to the court. [p. 2]

The lower court ruled on a number of the jokes in the show, finding them unlawful. These included jokes about deaf-mute individuals, people with disabilities, and incest and bestiality. It also granted the Public Prosecutor’s requests to prohibit the publication of derogatory content, remove that content from his social media platforms, prohibit him from leaving the city without permission and for monthly reporting obligations.

Lins filed a “Reclamação Constitucional” or “Constitutional Claim” directly with the Brazilian Supreme Federal Court (STF). This legal action is not a direct appeal to judgment from the lower court the lawsuit filed by the Public Prosecutor’s Office, but rather a constitutional measure submitted directly to the STF when, among other scenarios, a lower court decision violates the authority of binding precedents established by the Court (art. 100, “I” of the Brazilian Constitution).

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Decision Overview

Justice André Mendonça issued a unilateral decision, sufficient to grant or dismiss the appeal, as allowed under the Court’s internal regulations due to the case’s alignment with well-established precedent. The central issue for the Court was whether the lower court’s ruling, which imposed restrictions on Lins’s artistic expression and freedom of movement, violated his constitutional rights to freedom of expression and the right to practice his profession, particularly considering binding Supreme Court precedents regarding the unconstitutionality of prior censorship.

Lins argued that the lower court’s ruling was a prejudgment of his artistic expression, which had deemed it unlawful in advance, and that it violated his freedom of expression and his right to freedom of movement. He submitted that the ruling was inconsistent with binding decisions, such as ADPF No 130/DF and ADI No 4.451/DF, which emphasize the unconstitutionality of prior censorship. He maintained that his comedic performances are voluntarily enjoyed by the very groups the lower court seeks to protect, as they freely choose to access his videos and purchase tickets, with no content being imposed on anyone. Lins argued that the lower court’s decision creates a “chilling effect on the spectrum of freedom of expression for other artists”, citing various links to online videos produced by other comedians that contain similar jokes involving diverse groups. [p. 4]

The Court explained that the case involved the potential violation of two of its binding precedents regarding the constitutional freedoms of thought and expression, as well as intellectual, artistic, scientific, and communicative activities (ADPF No 130/DF and ADI No 4.451/DF). In ADPF No 130/DF (April 30, 2009) the majority opinion of Justice Ayres Britto ruled against any form of prior censorship, holding that “journalistic criticism, due to its inherent connection with public interest, is not susceptible to censorship a priori, even if attempted through legislative or judicial means” and that “it is not the role of the State, through any of its bodies, to define in advance what can or cannot be said by individuals or journalists” (bold in the original). [pp. 5-8] In ADI No 4.451/DF (June 21, 2018), the opinion of Justice Alexandre de Moraes, which was joined by the other members of the Court, analyzed freedom of expression, including artistic production of a humorous nature during election periods, and held that “[t]he fundamental right to freedom of expression is not only directed 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 majority“, and that “[…] even erroneous statements are protected by this constitutional guarantee” (bold in the original). [pp. 8-10]  The Court noted that, in the latter precedent, a preliminary ruling issued by the then rapporteur, Justice Ayres Britto, “affirmed the complete equivalence between freedom of the press—focus of ADPF No 130/DF—and the comedian’s freedom of creation: Humor programs, caricatures, and the satirical manner of circulating ideas, opinions, witty phrases, and images fall under the activities of the ‘press,’ a perfect synonym for ‘journalistic information’ (§ 1 of art. 220). To this extent, they enjoy the full freedom guaranteed to the press by the Constitution” (bold in the original). [p. 10]

Citing the case Rcl. No 18.566/SP, dated November 13, 2018, with Justice Celso de Mello as rapporteur, and emphasizing judicial self-restraint, the Court held that the duty to respect freedom of expression in all its dimensions must be observed not only by administrative authorities and legislators but also by judges. It said that “the exercise of injunctive jurisdiction by judges and courts cannot become a judicial practice that inhibits, much less censors, the constitutional freedom of expression and communication, lest – as I have previously emphasized – the general injunctive power granted to the Judiciary dangerously and unconstitutionally becomes the new name of an unacceptable state censorship in our country” (bold in the original). [pp. 9-10]

The Court stressed that, although extremely important, freedom of expression is not absolute in Brazil, and “[t]he exercise [of the right to freedom of expression] will always be subject to the risk of abuse, which, if it occurs, must be sanctioned” (italics in the original). [p. 11]. It cited restrictions such as the prohibition of anonymity, the right of reply, and compensation for material or moral damages, along with potential criminal liability. In respect of criminal liability, being the most extreme measure, the Court added that its application “requires a firm demonstration of intent to commit acts defined as crimes under penal law, such as slander, defamation, public incitement to commit a crime, among others” (italics in the original). [p. 11]

In this context, the Court established the following premises that summarize its historic position on the matter:

“[i] The exercise of freedoms of thought, expression, and communication, particularly in the realm of press activities, except in extremely exceptional situations, cannot be subject to curtailment or prior censorship, not even by the judiciary;

[ii] Humorous activity, as an expression of artistic creative freedom, aligns perfectly with the freedom of the press that protects journalistic activity, with both equally covered by the Supreme Court’s robust protective precedents;

[iii] The freedoms of thought, intellectual, artistic, scientific, and communication expression, including the creation and presentation of humorous content, hold a preferred position – not to be confused with (nonexistent) superiority – in relation to other constitutionally protected fundamental rights;

[iv] Given the relative nature of fundamental rights, potential abuses in the exercise of these freedoms should preferably be reviewed afterward, in accordance with civil or even criminal legislation, as Brazilian legal order provides regulatory and procedural mechanisms to balance conflicting legal interests; and

[v] Only in absolutely exceptional situations, that is, when concrete and objectively demonstrable harm to society is evident, and in light of principles of proportionality and reasonableness, can preliminary removal, initio litis, of the broad exercise of these freedoms be considered, with an exceptionally high burden of justification for any judicial decision amounting to prior censorship” (bold and underlined in the original). [pp. 12-13]

Accordingly, the Court concluded that the lower court’s decision imposed extreme and severe restrictions on Lins’s freedom of expression and professional activity, under threat of daily fines. It added that this was in clear noncompliance with the Court’s binding precedents, as the lower court had “immediately opted to impose prior censorship on [Lins], employing coercive measures that, in addition, generate serious legal uncertainty and plainly violate the principles of proportionality and reasonableness” (bold in the original). [p. 14] The Court highlighted that the lower court applied “generic prohibition orders” without referring to specific statements which violated the Constitution, and explained that “[a]lthough examples of alleged illicit acts by [Lins] were cited, referencing ‘indications of incitement to violence and blatant disrespect for the dignity of historically and socially marginalized and vulnerable groups‘, the decision did not order the removal of specific statements, nor did it concretely identify the illicit act in question. It was limited to issuing broad prohibitions, heavily using the term ‘any‘ to refer to ‘video, image, or text files‘, ‘content‘, ‘comments‘, etc., which could, abstractly, be deemed ‘depreciative or humiliating’ for ‘any category considered to be marginalized or vulnerable‘” (bold, underlined and italics in the original). [p. 15]

The Court found that the lower court’s ruling also violated the principles of proportionality, reasonableness, and the free exercise of any work, occupation, or profession, guaranteed by Article 5, XIII of the Brazilian Constitution. It noted that in a precautionary ruling, without allowing for defense or due process and without substantiating the necessity and suitability of its orders, the lower court had imposed extreme measures, including prohibiting the comedian from leaving the city for more than ten days and requiring him to report to the court to justify his activities.

Emphasizing additional precedents that underscored the Court’s commitment to the protection of freedom of expression, including artistic expression, the Court referred to Habeas Corpus No 83.966/RJ, August 17, 2004, with Justice Carlos Velloso as rapporteur and the opinion drafted by Justice Gilmar Mendes where the Court had dismissed criminal charges of obscene acts against playwright and theater director Gerald Thomas, who had reacted to audience jeers following a play’s conclusion, noting that “[o]ne cannot ignore the context in which the alleged act took place. An objective examination of the concrete case demonstrates that the issue falls entirely within the context of freedom of expression, even if inappropriate or impolite” (bold and underlined in the original). [pp. 18-19] The Court also cited a more recent case, Rcl. No 38.782/RJ, from November 2020, with Justice Gilmar Mendes as the rapporteur, where the right to freedom of expression for a comedy program that targeted religious symbols and beliefs of millions of Brazilians was upheld. The Court emphasized that freedom of expression can only be restricted in very serious situations, such as incitement to violence: “[t]he prohibition of the dissemination of certain content must occur only in exceptional cases, such as when it constitutes an unlawful act, incitement to violence or discrimination, as well as the propagation of hate speech. […] Work that does not incite violence against religious groups but constitutes mere criticism, made through satire, of elements dear to Christianity [cannot be restricted]” (bold in the original). [p. 19]

The Court also made two specific observations regarding Lins’s case. The first concerned the context of the controversial statements made during a stand-up comedy show, “where laughter, jest, hyperbolic distortion of reality, and often abrasive, mocking, and controversial criticism, sometimes offensive and frequently lacking any commitment to politically correct ideals, prevail—as is precisely what consumers of such events expect”” (italics in the original). [p. 20] Citing the precedent ADI No 4.451/DF, the Court emphasized that “it is inherent to caricature, satire, and farce to engage in what is called the hyperbolic distortion of reality. No one engages in farce, caricature, or satire without distorting reality”, concluding that “[t]his observation reinforces the necessity of interpreting [Lins’s] statements within the context of the environment in which they are made” (bold and italics in the original). [p. 21] Thus, the Court determined that, although the context does not exempt any potential liability, the circumstances in which the statements are made matter and, in this case, are “highly indicative of the configuration of the animus jocandi, inherent and presumed in any artistic performance of this nature, whose audience, moreover, demands an active stance from those who freely and consciously choose to consume this type of entertainment” (bold and italics in the original). [p. 22] The second point concerned the relationship between freedom of expression and responsibility, and the Court highlighted the warning made in the case of Rcl. No 60.575/AC, stating that “the present decision does not imply any judgment regarding the merits of the originating action, nor does it constitute a passport for reckless, irresponsible, or biased exercise of the relevant information activity” (bold in the original). [p. 24] With reference to its finding in Rcl. No 58.048-AgR/SC, the Court clarified that while the ruling protects the right to expression by reinstating any publication or statement that may have been suppressed by the lower court, Lins must bear any potential civil or criminal liability arising from the speech: “the present decision does not imply a judgment regarding the criminal responsibility of the complainant, either because that is not the subject of the complaint or because not all the elements necessary for such an examination are present in these records, the competence for which, moreover, falls to the ordinary instances”. [p. 24]

Accordingly, the Court overturned the decision of the lower court regarding the prior censorship and restrictions on the comedian’s right to exercise his professional activities regularly, preserving the regular course of any ongoing police investigation or criminal action against Lins.

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