Alexandre de Moraes, Minister of the Supreme Court of Brazil, on 30 August, after a judicial and personal battle with Elon Musk, decreed the end of the activities of social network X (old Twitter) in Brazil.
On the Internet, there is a wide range of strong opinions of experts and lay people who consider themselves experts. In general, those who identify with the Right stand against the minister's decision and categorize it as authoritarian. This sudden concern for Fundamental Rights, from this part of the political spectrum, is a deeply ironic phenomenon, and these individuals are mostly supporters of former President Bolsonaro, known for his authoritarian speech and nostalgia for the period of the Military Dictatorship (1964-1985). Those who identify with the Left are in favor of the minister's decision and emphasize Brazil's sovereignty. They also categorically state that foreign powers and private initiative must respect and conform to Brazilian legislation if they decide to operate in Brazil.
I am writing this text for an opinion department to say that I do not have as strong and unambiguous an opinion as the majority. My problem is being unable to fully agree with the right or the left. At first glance, "I don't agree with either the left or the right" may seem like an alternative to anyone who doesn't want to be criticized by anyone. I am willing to be criticized by the two poles of the political spectrum.
Moreover, I have to admit that to have, and present, a clear and cohesive opinion, I would also need to understand much more about Brazilian law than I understand. Amazingly, having been born on Brazilian soil did not give me much knowledge about the country's legal system. I was not born carrying a copy of the 1988 Constitution on my right arm and a copy of the Brazilian Civil Code on my left arm.
What must truly generate interest, dear reader, are some discussions tangent to this theme. Should freedom of expression be full, as it is in the USA, or should there be restrictions, as in European countries? Can the freedom of expression "full" of which Americans are so proud be characterized in this way?
Therefore, my real goal with this text is, starting from such a current case, to hold a very brief exhibition on freedom of expression, which should serve as the starting point of numerous legal, philosophical, sociological and psychoanalytic discussions on the subject.
Since everything I learned about law was in Portugal, I ask for permission to use the Lusitano legal system as a representative example of other European laws.
Here, the Constitution enshrines a number of fundamental rights and still recognizes the existence of fundamental rights that are materially constitutional but not formally constitutional. That is, a right may not be expressly enshrined in the Constitution (then not formally constitutional), but have legitimacy, relevance and constitutional dignity (art. 16th CRP). These should be treated as if they were in the Constitution (Article 17 CRP).
We can say that the Portuguese Constitution is more than what is between its Article 1 and its Article 296. o.
As generous as the CRP is in the recognition of fundamental rights, with its open catalogue, the exercise of no right, no freedom and no guarantee is unrestricted. As any student in Constitutional Law and Fundamental Rights knows, if he went to classes, there are interpretations restricting the exercise of such rights (Art. 18, n.o 2 and 3 CRP). This exists to safeguard the harmony and coexistence between such rights and so that the Constitution can be more applicable and not merely programmatic and aspirational.
In the United States, with the first amendment of the Constitution, freedom of expression is full and absolute. At least that's what the Americans say. This very common statement hurts the legal intuition, even of the worst law student. The statement is false. A brief survey shows that there are, yes, limits to freedom of expression in the United States. The defamatory speech, for example, and the speech in order to generate "lawless action”[1] are not protected and safeguarded by that first amendment.
We see, then, that there are limits to freedom of expression even in the land of the free. The question should not be thought of as "should the State impose limits on the speech of its citizens? Yes or no?" That's not a smart question. The question must be, "to what extent should the State limit the speech of its citizens?"
Once the American myth is extinct, let's move on to the most important exhibition. The term "freedom of expression" must be divided into two obvious particles to be understood, or at least to begin to be understood. "Freedom" and "expression."
As for "freedom", this must here be understood as "possibility of choice", that is, “existence of choice[2]”. This is the most superficial understanding of the concept, but fully useful and sufficient for what this text proposes to be.
The second particle ("expression") is more complex and less simplifiable. We can replace the word "expression" with "speak" or "speech", as I did throughout the text. These words, regardless of which we choose, are analyzed with difficulty, because, for any analysis, it is necessary to understand and study the nature of the discourse.
Some time ago, I was thinking about it and decided to send an e-mail to the greatest linguist alive, Noam Chomsky. Chomsky recommended me to read, among other thinkers, John Austin, who, in the last century, theorized the speech acts.
With this article, by its nature, a diminutive extension, I will not expose each of the three speech acts Theorized by Austin[3]. From the author, what is most important for these injunctions is the characterization of speech as an act. The question that arises from this characterization is clear. If the State, through its legal system, provides, delimits, regulates, restricts, directly or indirectly, actions, human relations and states arising from actions (marriage, divorce, motherhood, paternity, work, practices that can cause a subject to be imprisoned, alcohol intake,...) why should the State not regulate and limit speech?
We have seen that the notion that in some countries freedom of expression is full is a myth. Thus, the question, true and much more interesting, must be, "What makes speech such an act different from the other acts to be considered, however unreal that is, not to regulate or limit?".
I cannot, and this is my conclusion, find a good reason for the speech to be completely free and unrestrained. I understand and support, of course, the passionate defences of freedom of expression, but I find it difficult to answer the question presented in the previous paragraph. What makes speech such a peculiar act that it deserves such passionate defenses? In reply to this question and to the questions put in this text, we can add some rationality to the passion that already exists in this debate.
Porto, 2024.
[1] Brandenburg v. Ohio (1969).
[2] In the light of Sartre's philosophy, this statement makes no sense, because there is never possibility to choose, but there is always an inevitability of choice. Until you choose not to choose, not to choose, it's a choice. As I said at first, recognizing these interesting and relevant views, I maintain the position that the notion of freedom as the existence of choice, being able to choose, possibility of choice It is fully sufficient for the starting point that this text intends to be.
[3] For such exposure, directly from the source, read How to Do Things with Words, 1962.
This text was originally published by the Catholic Policy Society (CPS), defunct since 2025.