TIPIFICANDO O PENSAMENTO-CRIME: UMA REFLEXÃO ACERCA DOS LIMITES ENTRE A LIBERDADE DE EXPRESSÃO E A DEFESA DAS INSTITUIÇÕES

Abstract

This paper intends to reflect on the limits between freedom of speech and the defense of democratic institutions, from the perspective of criminal law. For this, the constitutional right to freedom of speech in Brazil was analyzed, focusing on the theory of the “preferred position”, currently adopted by the Supreme Court. Based on the idea of “preference” for freedom of speech when in conflict with other fundamental rights, restrictions adopted in the Brazilian legal system throughout history, related to the defense of institutions, were emphasized. From this historical panorama, it was analyzed the origin of the current National Security Law (Law No. 7.170/83), as well as the recent increase in its use, which triggered a series of movements for its abrogation. In this sense, it is observed that the criticisms against the rule focus, above all, on alleged violations of the principle of strict legality in its content, which gives space for the arbitrary use of the law and for an attempt to silence and criminalize any opponents, which, in turn, would represent a democratic setback and a clear affront to freedom of speech. In this sense, this paper approached the future perspectives in legislation on the subject, from the projects nº 6.764/02 and nº 2.462/91, taking into account the need for existence of laws that rigorously protect the democratic system, without, however, suppress its most basic principles.