Os limites ao exercício do direito fundamental à liberdade de expressão : um estudo dos critérios extraídos dos julgados do Supremo Tribunal Federal e do Superior Tribunal de Justiça.

Abstract

This monographic work aims to indicate the express and non-expressed limitations to the conformation and exercise of the fundamental right to freedom of expression in Brazilian legislation, seeking in the constitutional doctrine and in the judgments of the Superior Court of Justice and the Federal Supreme Court to find the criteria used to define when the scope of protection of this right falls. In this sense, it is necessary to understand: what constitutional limits are expressed and not expressed to freedom of expression in Brazil and how has it been dealt with under the jurisprudence of the Federal Supreme Court and the Superior Court of Justice? The hermeneutical method will be adopted as a research method, since this work will interpret the selected materials in an interpretive way. As for the research, the technical procedures of bibliographical and jurisprudential research will be used, since it will be consulted the bibliographical works and judicial decisions of superior courts in order to achieve the proposed objectives. The first chapter will deal with the treatment given to freedom of expression in Brazilian constitutions and its conception in the legal order and doctrine. In the second chapter, the doctrinal theories about the limits and restrictions expressed and not expressed to fundamental rights will be exposed, with emphasis on freedom of expression. The last chapter will seek to identify the criteria used by the Superior Court of Justice and the Federal Supreme Court to determine the scope of protection of the fundamental right to freedom of expression and the occurrence of abuses arising from its misuse. Finally, it is possible to conclude that the arguments considered by the judges are usually: the history of the country in relation to fundamental rights; the deceit of the agent; the occasion of the manifestation; the issue of material parliamentary immunity; the consequences of the act questioned in the enjoyment of the fundamental rights of the one that supposedly was affected by him; the weighting between two fundamental and colliding fundamental rights; others specific to specific cases.