Academic journal article Brazilian Political Science Review

On the Limits of Free Speech: Towards the Fair Value of Communicative Liberties*

Academic journal article Brazilian Political Science Review

On the Limits of Free Speech: Towards the Fair Value of Communicative Liberties*

Article excerpt

To try to deny the citizen this freedom [of the pen], means withholding from the ruler all the knowledge of those matters which, if he knew about them, he would himself rectify, so that he is thereby put in a self-stultifying position. (Immanuel Kant - "On The Common Saying - This may be true in Theory, but it Does Not Apply in Practice". In: Kant Political Writings).

In an unprecedented decision, the Brazilian Court has convicted a broadcast corporation and one of its most important journalists for hate speech. Bandeirantes TV, one of the four big media corporations in the country, presents a daily show in which reporters follow the police while they chase and arrest supposed criminals. José Luiz Datena, the host of the program, is responsible for analyzing and commenting on the images. Both Datena and the corporation were convicted over a show aired in July 2010 in which Datena, in a sort of a Dostoievskian argument, claimed the supposed criminal must be an atheist. According to Datena, "Atheists have no limits; that is why we see crimes like these. Atheists kill and commit other atrocities. They think they are their own God". After a protest by the Brazilian Atheist Association (ATEA), the Brazilian Court sentenced Bandeirantes TV and Datena, compelling them to air a two-hour show discussing freedom of consciousness and religious diversity. In the case of noncompliance, they would have to pay five thousand dollars in fines each day until the program was made.

The São Paulo Press Association reacted by publishing a note opposing the conviction, in which it stated, "one cannot think of democracy in Brazil without fighting for the rights enshrined in the United Nations' Charter of Human Rights, which protects the human right to freedom of expression and therefore the right to communication"1. The note continued, "When a journalist or a TV station is prevented from the right to free speech, we disrespect democracy and the rule of law. This is not a discussion about freedom of consciousness or religious diversity; more important is the question of freedom of expression and the essential and legitimate right of communicatio"2. According to the Association, it would be failing to protect its principles if it did not oppose the conviction publicly: "We couldn't go without a retaliation note because the constitutional defense of one of the most important principles of natural law, that is the right to freedom of expression, is comparable to a defense of life and of the natural freedom of human beings"3.

Therefore, the São Paulo Press Association maintains that a Court infringes on human rights whenever it condemns journalists and broadcasters for their activities. It conceives free speech as being derived from natural law; hence, it is a right that requires no further justification. Such a controversy raises a debate regarding the statute and the character of freedom of expression in societies in which public communication is more and more dependent upon the mediation exercised by technology. This discussion surrounds the relationship between free speech and media freedom4, and concerns the question of who the legitimate holder of rights to freedom of expression is or should be, as well as what the limits of these rights are in terms of different communicative practices. It is based around the idea of the priority of liberty and its interactions with other values. From a theoretical perspective, an important debate exists around the concept of free speech and its place within a broader, more general, idea of freedom. From a practical perspective, the discussion is related to different forms of legitimate regulation and their impact upon the guarantee of values such as autonomy.

I

Departing from the aforementioned case, this paper will address the normative issue of freedom of expression within the landscape of democratic societies in which the mediated form of communication appears as a central feature. …

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