The criminalization of free thought

In my article for Portal Claudio Dantas, I comment on the conviction of comedian Léo Lins, analyzing both the case and the criteria that were, or should have been, applied in this situation. See:

Freedom of expression of thought is a fundamental right and, at the same time, a human right enshrined in the 1988 Constitution and in the international human rights conventions embraced by Brazil and incorporated into its domestic legal order (art. 5, items IV, IX, and XIV; art. 220, caput and §§ 1 and 2, of the CRFB/88; art. 13 of the American Convention on Human Rights – Pact of San José, Costa Rica; art. 19 of the International Covenant on Civil and Political Rights).

The right of people to express their thoughts, in contemporary democracies, is therefore expressed in multiple forms. Freedom of opinion, of the press, of criticism, of investigative journalism, of social communication, artistic freedom, academic freedom and other multiple strands of the expression of thought are developments inherent in this fundamental right.

There is no doubt, however, that the exercise of free thought also runs up against the constitutional prohibition on committing crimes of discrimination, prejudice, racism, terrorism, incitement to violence and others defined by law.

In a Democratic Rule-of-Law State, in any event, freedom of expression of thought can be limited only through the harmonious reconciliation of fundamental rights, since the ontology of the other is the limit that stands before the language of whoever expresses their thought, and that limit is established through state legality, given that anonymity and prior censorship are prohibited, as provided in articles 5, item IV, and 220, §2, both of the Constitution of the Federative Republic of Brazil.

THE LÉO LINS CASE

In Brazil, there is a growing debate over the limits surrounding the exercise of the right to criticize, to hold opinions and to express thought in various settings. Recently, comedian Leonardo de Lima Borges Lins was sentenced to eight years and three months in prison, by the 3rd Federal Criminal Court of São Paulo, as guilty of the crimes of discrimination and incitement to prejudice, on account of jokes considered offensive, performed in his show called “Perturbador”, whose removal from social media was ordered by Judge Barbara De Lima Iseppi and which were subsequently published on the YouTube platform.

Despite the exhaustive literal transcripts contained in the conviction, which, coldly, appear to present statements disconnected from a humorous act and from the performative and aesthetic discourse of an artist, I believe that the conviction now under discussion should be better analyzed in light of two important precedents, namely: the “Rabat Plan of Action” report and the ruling set out in Complaint 38,782 of the Federal Supreme Court, which dealt with the episode “Especial de Natal do Porta dos Fundos.”

In the case under discussion, Léo Lins was convicted because, in his show, he allegedly uttered words and jokes that were supposedly intentional, aggressive, criminal and discriminatory in nature. The problem is that the judgment took the artist’s words out of context, disconnecting them from his entire show and from his entire career. Freedom of expression and thought, in the artistic setting and in the exercise of the humorist’s professional right, allows the style of acid, corrosive, underground humor, in which the subject takes on the role of an antisocial character in order to provoke convulsions or unusual emotional reactions in the audience.

Allowing for due proportions and the analytical variables corresponding to the different roles, in the United States we see comedians such as Louis C.K., among many others, who enter a space of corrosive and provocative humor, handling extremely explosive topics. This kind of comedian seeks to exercise his humor directly on sensitive segments, such as racial minorities, people with disabilities, ethnic minorities, politicians, exploiting human frailties, normally inserting himself into relevant public debates.

The role of these comedians, in contemporary societies, in the exercise of their freedoms, cannot be belittled, much less stifled through the criminal justice system.

CRITERIA FOR CRIMINALIZATION

In this context, the report “Rabat Plan of Action,” prepared by the Office of the United Nations High Commissioner for Human Rights, mentions six criteria that must be met simultaneously for the criminalization of speech associated with freedom of expression of thought, parameters that would apply — or should be applied — to the analysis of the concrete case.

The first parameter concerns context, which assesses the political and social environment in which the speech takes place. In Léo Lins's case, the content was presented at a closed artistic event, admission to which was by ticket purchase, in a comedy format, with no connection to moments of collective tension or campaigns of social hatred. There was, therefore, no scenario of conflict or imminent risk.

The second parameter considers the status of the author, taking into account the institutional, political, or media influence of the speaker. It is important to note that Léo Lins does not hold a position as a public official, has no state authority, and does not lead ideological movements that could socially mobilize people violently. He positions himself as an artist, not as a political or religious leader, which significantly reduces the risk that his words will incite any kind of violence.

The third aspect involves intent. It is necessary that the speech contain a specific intent seeking to incite discrimination, hostility or violence. Within the humorous context, the primary intent is to provoke laughter, to promote critical deconstructions or to cause aesthetic shock, even if the content is acerbic. Thus, Léo Lins's intent proves to be comic and not persecutory, since he does not call for attacks, nor does he mobilize hatred or incite actions.

The fourth criterion concerns content and form. It is necessary to evaluate the tone, the style and the literalness of the speech. The content in question is part of a humorous performance, characterized by irony, exaggeration and non-literal language. The artistic genre plays a central role in this analysis. Had the same content been read as an editorial or political pamphlet, it would have a different relevance, which does not apply to the case currently under discussion.

The fifth parameter considers the reach of the speech, taking into account the scale of dissemination and the potential public impact. The presentation was directed to a specific audience, in a specific physical venue. The subsequent virality of the material, in a fragmented and decontextualized form, does not alter the nature of the work, nor does it turn the original content into a factor of incitement.

Finally, the sixth criterion addresses the probability of real and immediate harm, this being the most decisive aspect. The question to be asked is: is there a concrete, immediate and verifiable risk that the speech may result in acts of violence, discrimination or persecution? In the case of a comedy show, held for a captive audience and without any subsequent episode of attack or mobilization, this probability is practically nonexistent.

REAL DISCRIMINATION

As if these observations were not enough, it should be noted that there is confusion regarding the provisions of article 20-A of Law 7,716/89. The legislator, in fact, provided for the prohibition of the commission of discrimination crimes in a context or with the intent of relaxation, fun or recreation, including an increase in the penalty when in that context. There is no doubt that criminal, racist or discriminatory behavior can be carried out through the mask of humor, that is, the criminal joke.

This statement amounts to saying that a criminal agent may practice discrimination on social media to humiliate his victims by means of a supposed entertainment or fun.

Likewise, a criminal organization could use this method to disseminate unlawful practices. Such conduct is not and would not be permitted. The context of these behaviors should be assessed in a concrete and specific manner. One cannot confuse the practice of a criminal organization or of characters clearly endowed with racist purposes with humor professionals. To that end, it is important to analyze the artist's body of work as a whole.

In Léo Lins’s case, one need only look at his performances and shows as a whole. He has his own peculiar style, and his freedom of expression of thought should be recognized, although he may be the object and target of criticism and controversy. In this sense, the paradigm of the judgment concerning STF Complaint (Reclamação) 38,782 is also applicable to Léo Lins’s case. This is because, in that judgment, the Supreme Court recognized the inviolability of freedom of expression of thought for the group Porta dos Fundos, in the face of the allegation that an offense to Christian values had occurred.

The hard core of freedom of expression consists in ensuring that artistic creation, even when offensive to certain groups or beliefs, cannot be limited by the State on the basis of moral or religious judgments. In that case, the Federal Supreme Court decided that freedom of expression encompasses artistic expression, even when it may run counter to the cultural or religious values of certain social segments, any form of prior censorship being prohibited.

The Court recognized that it is not for the Judiciary to play the role of curator of social sensibilities, nor to interfere in the circulation of ideas or critical discourse, especially when within the field of artistic or humorous creation. It was decided that symbolic and satirical expressions, even if bothersome, are constitutionally protected and may not be the object of judicial control motivated by subjective judgments of offense or blasphemy.

Brazil faces a significant institutional paradox when it comes to freedom of expression of thought. This is due to the absence of a stable, predictable, and secure criterion that establishes, transparently, the limits of speech. In certain contexts, the country has shown itself tolerant — and even valued — narratives that are radical, politically sensitive, or polarizing, all of it backed by the principle of freedom of expression of thought.

CRITICISM IS THE BASIS OF DEMOCRACY

On the other hand, at other times, a tendency was observed to criminalize criticism similar in its essence: criticism of the democratic process.

Consider what happened when a constitutional impeachment was characterized as a “coup d'état,” generating great repercussions both nationally and internationally. This narrative, which gained strength, resulted in the production of documentaries, books, campaigns and public demonstrations, all without any need to resort to criminal mechanisms or censorship decisions.

It is crucial to note that, even after the STF recognized the legal legitimacy of this proceeding, freedom of criticism continued to be safeguarded.

However, paradoxically, at a different moment, questions arose about the auditability of electronic voting machines and the transparency of the electoral process. These questions, which were often expressed in civil language and formed part of a legitimate public debate, came to be treated as crimes. In this context, free thought, which should be considered a fundamental right, was turned into a risk to the institutions.

It is precisely this structural incoherence that should concern any defender of public liberties, for we face a dilemma that goes beyond the mere endorsement of content — it is, in fact, a matter of protecting the fundamental principle that sustains those liberties. I state with complete clarity that there was no coup d'état in Brazil, just as there were no flaws in the electronic voting machines , nor was there a lack of transparency in the electoral process.

However, a relevant question remains: what, after all, is the true extent of freedom of thought in Brazil?

If freedom manifests itself when it is convenient or when it is in line with the prevailing sensibility, then we cannot regard it as true freedom. In that case, we are dealing merely with a concession. It is important to stress that a state concession regarding thought is the opposite of what is understood by democracy.

By Fábio Medina Osório, for Portal Claudio Dantas.