By Celso de Mello*, former president of the Brazilian Supreme Court
(Opinion) In this historical moment in which Brazil stands between its past and its future, it becomes essential to emphasize the need for the protection of freedom of the press since this political-legal prerogative, which also constitutes a fundamental right of citizenship, represents one of the legitimating assumptions of the very notion of Democratic State of Law.
In fact, and as proclaimed in the “Chapultepec Declaration”, which embodies a true Letter of Principles adopted by the Hemispheric Conference on Freedom of Expression held in Mexico City on March 11, 1994 (29 years ago), a free press is a fundamental condition for societies to solve their conflicts, promote welfare, and protect their freedom.
There are no free people or societies without freedom of speech and the press.
This right, as it translates to an inalienable prerogative of citizens, cannot suffer restrictions or limitations of any kind, especially when imposed by the State and its agents.
The broad dissemination of information, unrestricted criticism, and the possibility of formulating complaints against the government represent essential expressions of this fundamental freedom.
Its practice cannot be compromised by censorial interdictions or by other state devices used to curb it, because – it is always important to insist – this basic right, inherent in free social formations, is not a state concession, but rather represents an inestimable and irreplaceable value of the citizenship.
The latter has the right to receive information from the media, to whom it is also recognized to seek information, to express opinions, and to divulge them without any restriction in a climate of complete freedom.
I have always pointed out, in my judgments rendered at the Federal Supreme Court, that the content of the “Chapultepec Declaration” reveals to us that nothing is more harmful, nothing is more dangerous than the pretension of the State and its agents to regulate freedom of expression (or to interfere in its exercise illegitimately) because thought must be free, permanently free, essentially free!
We all know that freedom of speech, whose foundation resides in the very text of the Constitution of the Republic, assures the professional of the press – including the one who practices digital journalism – the right to express criticism.
Even if it is unfavorable and in a firm tone against any person or authority, it also assures, besides other prerogatives, the right to publish news and disseminate information.
No one ignores that, in the context of a society founded on democratic foundations, state repression of thought is intolerable, even more so when criticism and the circulation of news are inspired by collective interest and result from the legitimate practice of public freedom of eminently constitutional extraction (CF, art. 5, IV, c/c art. 220).
It cannot be denied that freedom of the press, as a projection of the freedom to manifest one’s thoughts and communication, has a comprehensive content since it comprises, among other relevant prerogatives inherent to it,
(a) the right to inform,
(b) the right to seek information,
(c) the right to express one’s opinion and
(d) the right to criticize.
It is for this reason that I have always emphasized, in countless decisions I have rendered at the Federal Supreme Court, that the exercise of jurisdiction by magistrates and courts cannot become a judicial practice that inhibits, much less censors, the constitutional freedom of expression and communication, under penalty of this power attributed to the Judiciary qualifying, dangerously and unconstitutionally, as the new name for unacceptable state censorship in our Country.
The judicial interdiction imposed on journalists and social communication companies preventing them from reporting or transmitting data relative to illicit practices occurring in governmental environments.
And this, regardless of the hierarchical position of the public agents involved, configures, as I understand it, a clear transgression of the command emerging from the Constitution of the Republic, which entirely consecrates the freedom of the press.
It is not too much to insist on the observation that censorship, as incompatible with the democratic system, was banned in the Brazilian legal system, whose Fundamental Law – reaffirms the repulse to the State’s censorship activity, in line with previous Brazilian Constitutions (Imperial Letter of 1824, art. 179, no. 5; CF/1891, art. 72, § 12; CF/1934, art. 113, no. 9; CF/1946, art. 141, § 5) – expressly forbade “(…) any censorship of a political, ideological and artistic nature” (CF/88, art. 220, § 2).
It is also important to emphasize that the prohibition of the practice of censorship, besides having been consecrated in our democratic constitutionalism, represents the expression of a commitment that the Brazilian State assumed internationally as results of the Universal Declaration of the Rights of the Human Person, the International Covenant on Civil and Political Rights, the American Declaration of the Rights and Duties of Man, and the American Convention on Human Rights, also known as the Pact of San Jose da Costa Rica.
The burden of censorship – nobody ignores this – is unbearable and absolutely intolerable.
That is why we cannot – and should not – go backward in this process of conquest and reaffirmation of democratic freedoms.
RUY BARBOSA, in a magnificent text in which he registered his considerations on the arbitrary action of Marshal Floriano Peixoto during the Federalist Revolution and the Armada Revolt (“The Dictatorship of 1893”), after emphasizing that the empire of the sword could not substitute the rule of Law, thus pronounced himself on the issue of state censorship
“The Constitution has prohibited censorship unrestrictedly, radically, inflexibly. Every preventive Law against the excesses of the press, every Law protecting publicity, every Law of police inspection of newspapers is, consequently, usurpatory and tyrannical (…)”.
It is essential to recognize, therefore, given what has just been said, that freedom of the press, which is not absolute in character (CF/88, art. 220, $ 1o, final part ), qualified by its essentially constitutional nature, ensures to media professionals, including those who practice digital journalism, the right to seek, to receive and to transmit information and ideas by any means.
Excluded, however, is the possibility of judicial intervention – necessarily “a posteriori” – in cases where an abusive (or anomalous) exercise of this prerogative of the legal order is established, as in the case of the dissemination of “fake news,” the violation of the moral heritage of the people, the excusing and inciting of crimes, the manifestation of intolerance, hatred, prejudice, and discrimination, or matters that constitute an incentive to hostility and violence (American Convention on Human Rights, Article 13, No. 5). 5 ).
It is important to remember, at this point, the correct warning of Justice Alexandre de Moraes of the Federal Supreme Court and Professor of Constitutional Law at the Largo de São Francisco Law School (USP) when he took office as President of the TSE: “(…) freedom of expression is not freedom of aggression.
Freedom of speech is not freedom to destroy democracy, destroy institutions, destroy the dignity and honor of others.
Freedom of speech is not freedom to propagate hateful andiscriminatoryed speech.
Freedom of speech does not allow the propagation of hate speech and ideas contrary to the constitutional order and the Rule of Law, including during the period of electoral propaganda (…)”.
Finally, one must consider that the Constitution of the Republic widely safeguards the secrecy of the source in favor of the journalist when, at the discretion of the press professional himself (and only of him), he deems it necessary for his professional exercise.
The prerogative of the journalist to preserve the confidentiality of the source (and not to suffer any sanction, direct or indirect, legal, judicial or administrative, due to the legitimate practice of this right granted by the Constitution of the Republic itself), as it translates the subjectivrequestht of the press professional, enforceable against any person or authority, as repeatedly decided by our Supreme Court, is qualified an autauthenticatestitutional guarantee destined to assure the exercise of the fundamental right to seek and transmit information freely.
In short: the assertion that freedom of the press will always constitute a value to be permanently defended is unquestionable because, without it, the democratic order will be disfigured and seriously compromised.
*Celso de Mello, retired Justice and former (and youngest) president of the Federal Supreme Court
This post was published first in the Estadão newspaper