Deconstructing the idea of the Supreme Federal Court as an enemy of democracy

: (Has) the understanding of freedom of expression changed?

Abstract

This article offers a critical analysis of the claim that the Brazilian Supreme Federal Court has illegitimately restricted freedom of expression in recent years, allegedly positioning itself as an adversary of democratic liberties. The study begins by contextualizing the rise of disinformation and coordinated attacks aimed at weakening the Court’s institutional legitimacy, a dynamic that intensified between 2019 and 2022. Against this backdrop, it revisits Georges Abboud’s argument concerning the construction of a “fictional enemy” and examines its role in the symbolic erosion of constitutional institutions. The article then delineates the normative content of freedom of expression as a human and fundamental right and presents the principal judicial methods used to define its limits, particularly categorization and balancing. It proceeds to analyze two landmark decisions of the Supreme Federal Court: the Ellwanger Case and Inquiry No. 4,781/DF. In both instances, the Court, despite markedly different compositions, reaffirms that freedom of expression is not absolute and excludes from constitutional protection hate speech and fraudulent manifestations that threaten vulnerable groups or undermine democratic institutions. The study concludes that there has been no jurisprudential rupture. Rather, the Court’s decisions demonstrate continuity in affirming that freedom of expression must be exercised within parameters compatible with the preservation of the Democratic Rule of Law, rejecting the narrative that the Court has become an enemy of public liberties.