Liberdade de expressão e discurso de ódio: os fundamentos jurídicos da (im)possibilidade de atribuição de nota zero à redação que desrespeita os direitos humanos no ENEM

Abstract

This dissertation investigates the arguments in favor and against the Public Civil Action number 0064253-2016.4.01.3400 filed by the School Without Party Association in view of the criterion that imposes the annulment of the essays that violate human rights in the National High School Examination (ENEM). From the clash between freedom of expression and hate speech, the work shows what are the legal foundations that underpin the possibility and impossibility of giving a zero score to ENEM essays that violate human rights. The research problem that guided this investigation sought to verify, in the face of the possible conflict between freedom of expression and hate speech, which of these would prevail in the case of human rights violations in ENEM. The theoretical approach proposed is egalitarian liberalism, which is why the debate started from the analysis of the notion of freedom for Immanuel Kant and John Rawls, to outline the assumptions of the defense of freedom of expression. In the field of freedom of expression, it was found that, in addition to moral and philosophical foundations, there are also legal, international and domestic foundations capable of grounding it. To examine the opposite thesis, in the second part of the investigation, we sought to analyze the foundations for limiting freedom of expression, especially in cases of abuse that shape the hate speech. The Siegfried Ellwanger case was explored, which determined a special appreciation of the dignity of the human person in the face of freedom of expression, and the debate between Jeremy Waldron and Ronald Dworkin about the scope of restriction of freedom of expression. In the third part of the work, the arguments of the actors involved in this case were investigated, such as the School Without a Party - ESP, the Attorney General's Office - PGR, the National Institute of Educational Studies and Research - INEP, as well as the judicial decisions of three remaining instances (JFDF, TRF1 and STF). The results of the investigation suggest that the dignity of the human person and human rights have prominence in the Brazilian order, therefore the freedom of expression cannot prevail in front of cases of hate speech, according to this, it would be proportional to the annulment of abusive writing. In order to account for the contradictions between freedom of expression and hate speech, this dissertation uses the dialectical method, since the thesis, which is the broad right to freedom of expression, a corollary of the Democratic State under the Rule of Law, was opposed to the antithesis, which is the possible limitation to free and broad freedom of expression, which, depending on its content, may characterize hate speech, and the techniques of bibliographic and documentary research, paying special attention to the procedural pieces involved in the case on screen.