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Mon 15
The Danilo Gentili case and five reasons why it is absurd to criminalize thought

The Danilo Gentili case and five reasons why it is absurd to criminalize thought

Comedian Danilo Gentili’s six months sentence in a semi-open regime rekindled the debate on freedom of speech in Brazil

Luan Sperandio

Comedian Danilo Gentili’s six months sentence in a semi-open regime, on Wednesday (10), after a lawsuit filed by federal deputy Maria do Rosário (PT), rekindled the debate on freedom of speech in Brazil.

A video posted in 2017 by SBT’s “The Noite” host, in answer to an extrajudicial notification send by the congresswoman, was the trigger. The document demanded the comedian to remove three videos posted about her on Twitter; in the footage, Gentili ironically rubbed the notification in his private parts, before posting in back in the mail to the congresswoman.

In an interview to Jovem Pan radio, Danilo said he would rather be arrested than kneel down before “the patrol”. In a statement for Students for Liberty, he was even more incisive: “I would rather lose everything, except my freedom (of expression)”. The comedian has been lifting this banner for a long time: he once used a chainsaw to destroy all lawsuits which were sent him to try to curb his lines during the “Politicamente Incorreto” (“Politically Incorrect”) show, held in Curitiba at 2018. The comedian is also planning to create an organization to defend freedom of speech.

It must be recognized that an audience which criticizes and gets outraged against the censorship of artists during the military dictatorship period, but ignores or even celebrates the criminalization of something as trivial as a joke, is not defending the possibility of people to express themselves however they want. They only wish people to manifest their opinions as long as they follow strictly the rules aligned to their ideological bias.

Even though this is a constitutional right, freedom of speech in Brazil is not absolute. International organizations usually express their concerns about the several exceptions provided by the 1988 Carta Magna.

Reports such as that made by non-governmental organization Article 19 point out that freedom of speech in Brazil is under threat in public spaces, such as during demonstrations, as well as in the online environment. They criticize the fact that libel, defamation, and disparagement are considered crimes, to the point that these so-called “crimes against honor” instigate the practice of judicial activism in order to censor statements, journalistic pieces, and protests.

Freedom of speech in Brazil has also received bad evaluations regarding threats against reporters. Between 2012 and 2016, 22 members of the press were murdered, according to the same study. According to the National Federation of Journalists, cases of aggression against journalists increased by 36.36 percent in 2018, compared to the previous years: there were 135 cases of violence, against 227 professionals, including murders.

These concerns have been conveyed to the Freedom House report, made by British magazine The Economist. The study assesses the quality of each country’s institutions under the democratic point of view, and in their latest reports has shown a lot of concern about these issues. In its 2019 edition, it stressed the high rate of political violence registered during the electoral period, as well as disinformation.

In the freedom of press ranking released by Reporters without Borders, Brazil occupies the 102nd position, which makes clear the difficulties faced by freedom of speech in the country.

Censorship refers to the determination which prevents a media, an opinion former, or even any individual, from expressing something without having to undergo a barrier which will determine what can and what cannot be said or written. In contrast to that, we have selected five reasons for which freedom of speech should be absolute.

Penal law should be reduced to a minimum

A common criticism made to penal law is that it is equivalent to a gun pointed at the population who has the least resources. There is evidence which corroborates such arguments.

The National Penitentiary Information Survey, for instance, points out that around 75 percent of the Brazilian prison population never reached high school, and at best were able to finish elementary education. Those who reached high school, whether they have finished that stage or never managed to finish, amount to 24 percent. Only one percent of inmates began or finished their higher education stages. Since there is a strong correlation between an individual’s education level and his income, it is intuitive that today, the country’s penitentiaries are mostly composed of poorer people.

Also according to the report, among inmates, 64 percent and black or brown. White people, on the other hand, make up for 35 percent of inmates, whereas they represent 46 percent of the population as a whole.

In the rule of law, there is the general principle of minimum intervention. It establishes that the rule of law should use penal law as a last resource, only in cases of extreme need. Criminalists claim penal Law should be the last frontier of social control, when all other branches of law have shown themselves incapable of intervening in extremely severe attacks on the most important legal interests. To criminalize expressions goes against this premise, and there are bills on the matter being discussed in the National Congress.

Hinders the space for the free circulation of ideas

A big part of the importance of the public debate is focused on the search for good arguments against wrong ideas. No one should have the right to impose their own world view on others, but merely to convince them of their own ideals and values.

What may be considered offensive to someone is not necessarily so for all other people. To establish punishments for concepts as arbitrary as the principle of “offensiveness” is a mistake, given the subjectivity of the question and the impossibility of determining in a general way what is held to be invariably disagreeable.

The most common justifications for the attempts to restrict freedom of speech are based on “avoiding hate speech”. It must be pointed out, however, that the abolition of slavery was once considered hate speech. To speak about women’s vote was almost forbidden. It seems unthinkable that such issues have once been the object of taboo, but for a long time they could not even be discussed.

By enabling freedom of speech and art about all subjects, these subjects are not trivialized, on the contrary; it provides an opportunity to talk about them and get to know them.

In an environment in which freedom of speech is duly respected, there is an opportunity to repudiate bad ideas. Whenever there was an explicit manifestation of support to Nazism in the US city of Charlottesville, in 2017, for instance, the act of a few dozen Nazis placed the whole movement under debate, and it was overwhelmingly rebuked throughout the world. Even bad ideas can be fought with freedom of speech. By enabling different approaches on all items, these subjects are not trivialized; on the contrary, it provides an opportunity to talk about them and get to know them.

Society’s opinion on what is acceptable discourse and what isn’t varies according to time. It is natural, culture changes. By the way, the freedom to change opinions is fundamental for that to happen. This is why freedom of speech should not be viewed merely as a simple right, but the way through which society may promote changes: what is considered good and virtuous may be considered bad and reproachable tomorrow.

This is why English writer George Orwell made a right analysis when he registered in his essays that “If liberty means anything at all, it means the right to tell people what they do not want to hear.” His way of thinking is similar to that maxim by philosopher Voltaire, which claimed to defend to his death the freedom of speech of others, even if he disagreed with what they said.

Besides, full freedom of speech protects against the possibility of an abuse of authority by the courts and against the state’s interference in the area of human thought. When we give to the state the power to censor or arrest someone because of something they said, there’s no guarantee that we won’t be the next ones to be arrested.

The biggest test regarding the defense of individual rights is not to advocate for the freedom of those with whom we agree, but to face that decision involving the freedom of those with whom we disagree.

In 2016, then Republican pre-candidate Donald Trump was targeted by a petition which proposed to ban him from the United Kingdom, which obtained more than half a million signatures. When she received a special award from the PEN International association for defending freedom of speech, writer JK Rowling mentioned the petition, but was interrupted by applause from the audience. “Just a moment,” reacted Rowling, and continued:

“I find almost everything that Mr. Trump says objectionable. I consider him offensive and bigoted. But he has my full support to come to my country and be offensive and bigoted there. His freedom to speak protects my freedom to call him a bigot. His freedom guarantees mine.”

In the same way, when Ku Klux Klan had denied their right to march through the streets of the state of Texas in the 1960s, the American Civil Liberties Union appointed black attorney Anthony P. Griffin to defend them. Griffin saw no problem in defending the freedom of speech of racists, because it was precisely that right which allowed him, a member of the National Association for the Advancement of Colored People, to criticize the KKK.

Both understand that the freedom of speech of criticizing Trump and racists is founded on the same freedom Trump and the KKK have of being prejudiced.

Freedom of speech precedes any Constitution

The First Amendment of the Constitution of the United States is one of the greatest pillars in defense of freedom of speech in the whole world. Its text is clear: Congress does not have the power to make laws which restrict freedom of speech, the exercise of a religion or the right to assemble.

In Brazil, on the other hand, anonymity is not protected, unlike countries whose legal system understands that individuals with unpopular opinions may not feel constrained to remain quiet, having persecution as an alternative. Around here, the protection of free speech has several limitations.

Whereas in the United States the Supreme Court decided that those occupying public offices may only sue news vehicles if they prove the bad faith of the authors, in Brazil the newspaper O Estado de S. Paulo has been forbidden since 2009 to talk about the events surrounding Operation Boi Barrica, which affects José Sarney and his family, due to a preliminary injunction, which is a cautionary legal instrument. In a May 2018 decision, justice Ricardo Lewandowski denied an appeal and kept the censorship.

The Reporters without Borders organization has demonstrated their concern. The Brazilian Constitution also restricts the acting of broadcast services by determining their need to be approved by the Brazilian state. That prevented the entry of foreigners in the market and, as a consequence, most broadcast vehicles have become dependent on state money, and concentrated on the hands of politicians.

Freedom of speech needs to be seen as a natural right, like the right to life. It precedes any constitution, regardless of whether it protects or mitigates freedom of speech. Individuals must have the right to express themselves, regardless of creed, political opinion, or ideologies.

This is why the Universal Declaration of Human Rights, approved in 1948, has consecrated freedom of expressing one’s opinion in the international legal device, reaffirming the plurality of ideas as a requisite for humanity’s growth.

To criminalize expression is anti-democratic

“How democracies die”, by political scientists and Harvard professors Steven Levitsky and Daniel Ziblatt, is categorical when it warns about the risks democratic institutions face when they criminalize defamation or libel.

The authors tell that in 1798 federalists approved the so-called “Sedition Law”. Although in theory it criminalized only fake statements against the government, its construction was so vague that, in practice, it criminalized any criticism of the government. The law was used to attack newspapers and activists of the Republican Party, until it was finally revoked.

The work warns about the danger of rulers who are prone to restrict civil liberties of opponents or the media, as well as supporting laws or policies which restrict civil liberties, such as expanding slander and defamation laws, or laws which restrict protests and criticism of the government or even certain civic or political organizations.

In the words of the authors: “One thing that separates contemporary autocrats from democratic leaders is their intolerance of criticism, and their readiness to use their power to punish those – in the opposition, media, or civil society – who criticize them.”

In a rally in Fort Worth, Texas, in 2016, Trump promised:

“We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace, or when The Washington Post, which is there for other reasons, writes a hit piece we can sue them and win money instead of having no chance of winning because they’re totally protected.”

The laws which criminalize expression are frequently used by governments from their influence as arbiters – as judges – to “legally” marginalize opposition media, often through defamation or libel lawsuits. When in power, Ecuadorian president Rafael Correa used that tactic, for instance. In 2011, he won 40 million dollars in a libel lawsuit against the owners and the editor of the newspaper El Universo, which had printed an editorial denouncing his authoritarian practices and labeled him a “dictator”. The lawsuit had a curtailing power over the press, which began to practice self-censorship in order to avoid retaliation.

The authors also warn against the danger of statements made by rulers against the media, with speeches promising to punish media vehicles. Many of these politicians often cross the line between words and actions.

When a communication vehicle is attacked, all others enter a state of alert, and begin to practice self-censorship: the growing attacks made by Hugo Chávez in the mid-2000s made one of the country’s biggest TV stations, Venevisión, considered pro-opposition, barely cover the opposition during the 2006 election, giving to president Chávez 84 percent of their coverage time – almost five times more than their rivals – and contributing to his victory that year. Venevisión later decided to put in its program schedule astrology shows and soap operas, putting an end to their political coverage.

In the book “Why Nations Fail”, by Daron Acemoglu and James Robinson, there is a defense that full freedom of speech belong to what they call “inclusive institutions”. It consists of creating an environment which enables debates and makes it impossible for governments to control opinion makers and the media, helping to create a process of inspection and supervision of the government’s power, and creating a virtuous circle which results in more prosperity and an improvement of the quality of life and well-being for the nations.

Even under the pretext of “fighting fake news”, there should be no curbing of freedom of speech

Before the 2018 elections, the Electoral Superior Court showed its concern with the influence fake news might have on the electoral dispute. At the time, justice Luiz Fux even said the election could be annulled due to them.

And fake news is especially prosperous in Brazil: according to Big Data expert Renato Dolci, the country is a world leader both in the production and the consumption of content identified as fake news. In 2017, they generated 10 billion clicks – more than in any other Brazilian news portal.

Ideally, the public debate should be clean, without any adulteration of facts, and all information should be duly verified. The reality, however, is more complex: there is news which is evidently and objectively fake, while others require a more subjective assessment.

The Electoral Superior Court, trying to deal with the issue of fake news, questioned the FBI on how it handled the problem in the United States. It received the answer that it is not up to the government to fight fake news, but merely try to handle possible attempts of foreign interferences in the elections – a matter of national security.

There are some who defend that some form of control should be exercised by the government; however, that would imply the taking of decisions without adequate transparency, and in a coercive way. The effect of that is that, under the pretext of fighting disinformation, there are already dozens of bills in Congress aiming at criminalizing them.

It should be pointed out that the market itself has been trying to solve the issue by offering tools which enable a more easy distinction between what is true and what is fake for the public to gradually learn how to deal with the fake news industry. There are websites, fact checking agencies and specific sessions in newspapers destined to checking information. This option preserves freedom of speech and individual rights, and also moderates spontaneously the credibility of media vehicles in face of the public.

Furthermore, the influence of fake news tends to be overestimated: people who are convinced by fake news tend to be partisan individuals who, when affected by the confirmation bias, only strengthen the ideological view they already had. The center (which is always being disputed, in terms of votes) is little affected. Therefore, the electoral impact of fake news is smaller than it seems. In Donald Trump’s election, for instance, the impact regarding vote changes was something around 0.02 percent of votes.

One must be aware of any policies which might hamper the freedom of interpersonal communication. The alternative of government control is always a third-party attempt of censorship, and can be used by those who run the state to withhold narratives that go against their project to remain in power. We don’t need a Ministry of Truth, like the one in the dystopic work 1984, but full freedom of speech instead.