Between Orwell and the Constitution: How the Brazilian Judiciary Created the Jurisprudence of Exception
By Rogério Santos do Nascimento
Attorney. Specialist in Constitutional Law and Administrative Law
Editorial Introduction
Lex Pathway presents a critical analysis article on one of the most controversial episodes in Brazil’s recent history. In 2022, the Superior Electoral Court, composed mostly of justices from the Supreme Federal Court, decided to restrict freedom of expression in the name of “electoral integrity.” Such an act opened the precedent of relativizing constitutional clauses. Between Orwell’s literature and constitutional dogmatics, the text demonstrates how the dangerous jurisprudence of exception was consolidated.
1. The episode and its gravity
The episode that indelibly marked the rupture of the Brazilian constitutional pact occurred in October 2022, during the judgment by the Superior Electoral Court (TSE) that resulted in the demonetization of channels and the prohibition of airing a politically themed documentary during the presidential campaign. In her vote, Justice Cármen Lúcia, while recognizing the absolute constitutional prohibition of any form of censorship, a guarantee consecrated as a constitutional clause, nevertheless admitted that in that “exceptional case” freedom of expression could be temporarily restricted until October 31, under the argument of safeguarding the integrity, soundness, and security of the electoral process.
“It is not possible to allow the return of censorship under any argument in Brazil. This is a specific case and we are on the eve of the second round of elections. The inhibition is until October 31, exactly the day after the second round (...) But I see this as a situation of exceptionalism and that, yes, somehow, if this proves to be censorship, this decision must be immediately reformulated”, highlighted the Justice, in a vote accompanied by the majority.
Such a statement, widely echoed by the press and criticized on social media and in Parliament, revealed the contradiction that would become a symbol of the collapse of the constitutional order: while reaffirming the impossibility of any censorship, the Supreme Electoral Court created the precedent of exceptional censorship, admitting the relativization of a fundamental right that, by its nature, does not allow gradations or suspensions.
2. The Constitution and its entrenched guarantees
The 1988 Constitution of the Republic is clear, emphatic, and categorical: fundamental rights and guarantees are not subject to political convenience gradations. Article 5, the hard core of Brazilian constitutionalism, provides that all are equal before the law and enjoy the inviolability of life, liberty, equality, security, and property. In the same provision, there are direct commands that resonate as clauses absolutely impermeable to arbitrary restrictions:
Art. 5, IV – “the manifestation of thought is free, anonymity being forbidden”;
Art. 5, IX – “the expression of intellectual, artistic, scientific, and communication activity is free, regardless of censorship or license.”
And to leave no margin for restrictive interpretations, §1 of the same article establishes: “The rules defining fundamental rights and guarantees have immediate application.” The original constituent, aware of the authoritarian experiences lived by Brazil in the 20th century, conferred upon these rights the nature of entrenched clauses (art. 60, §4, IV). This means that not even the reforming power can relativize them; much less, therefore, could a court, even if composed of Supreme Federal Court justices, do so in an “exceptional” manner.
The decision of the Superior Electoral Court in 2022, by prohibiting the airing of a documentary during the electoral period, was, in substance, prior censorship. Even if disguised as a “temporary” and “protective” measure, it cannot be denied that it consisted of a state act restricting the free exercise of communication and intellectual activity.
The seriousness of the precedent can be better understood in light of two paradigmatic rulings of the Supreme Federal Court:
ADPF 130 (Justice Ayres Britto, j. 04/30/2009) – when declaring that the old Press Law was not received by the 1988 Constitution, the STF stated, in no uncertain terms, that freedom of expression has a “preferential character” and that no form of prior censorship is compatible with the constitutional order inaugurated in 1988.
ADI 4815 (Justice Cármen Lúcia, j. 06/10/2015) – in a ruling concerning so-called unauthorized biographies, the Court unanimously reaffirmed that control over intellectual works can only occur a posteriori, never through prior prohibition. Justice Cármen Lúcia, rapporteur, summarized: “censorship is incompatible with democracy.”
How, then, to reconcile these binding precedents, issued by the Supreme Federal Court in concentrated control, with the 2022 decision that, under the justification of “electoral integrity,” imposed prior censorship on a documentary? The answer is direct: there is no possible reconciliation. What was seen in that episode was the denial of the Constitution by its own guardians.
3. The precedent and its corrosive effects
Justice Cármen Lúcia’s vote, when stating that “censorship cannot be allowed to return” and, immediately thereafter, admitting an “exceptional” censorship until October 31, revealed the logical and legal abyss that opened: recognizing unconstitutionality and yet legitimizing it.
This reasoning is not only legally fragile; it is corrosive. Because, if an entrenched clause can be set aside for a few days, nothing prevents it from being set aside for months or years. If today a documentary is restricted, tomorrow it may be a political party, then a religious service, a scientific study, or even the freedom to vote and be voted for. The logic of exception undermines the essential core of democracy.
Thus, from a constitutional perspective, there is no doubt: the suppression of communication freedom in that episode constituted a direct violation of art. 5, items IV and IX, of the Constitution, as well as art. 60, §4, IV, which elevates individual guarantees to the status of entrenched clauses.
4. The historical weight of censorship
The episode that occurred in October 2022, when the Superior Electoral Court, in a majority decision, chose to suspend the airing of a politically themed documentary until the second round of elections, cannot be treated as a simple administrative act of electoral convenience. Much less can it be relativized as a “necessary exception” or a “momentary sacrifice in favor of electoral integrity.” What occurred there was something infinitely more serious: a silent institutional rupture, by which the relativization of an entrenched clause of the Constitution of the Republic was legitimized.
Justice Cármen Lúcia, in her vote, explicitly left the contradiction: “censorship cannot be allowed to return” and, at the same time, “in an exceptional situation” consented to practice it until October 31. Such a statement constitutes, in legal terms, a voluntary confession of unconstitutionality. The error was acknowledged, the absolute prohibition admitted, but it was yielded to in the name of an alleged greater good.
The problem is that the Constitution does not admit this utilitarian logic. The Federative Republic of Brazil was not built on the convenience of rulers, but on the supremacy of the fundamental law. If the door of exception is opened, the constitutional pact ceases to be a shield and becomes a mere rhetorical reference.
Brazilian constitutional history records painful chapters of suppression of freedoms. In the Estado Novo (1937–1945), censorship was Getúlio Vargas’s preferred instrument to stifle opponents. During the military dictatorship (1964–1985), prior censorship targeted journalists, artists, and professors, symbolizing the cruelest face of authoritarianism. The 1988 constituent, aware of these wounds, elevated freedom of expression to entrenched clause precisely to prevent future judges or legislators from succumbing to the temptation of repeating such practices. Therefore, the 2022 decision, even if temporary, brought back a ghost that should be buried: that of censorship legitimized by a court.
5. The rupture of the pact of trust
The Constitution is not merely a legal document; it is, above all, a pact of trust between the State and society. The ordinary citizen must believe that his fundamental rights are unshakable, even in adverse circumstances. When the Supreme Electoral Court, under the pretext of protecting elections, decides to restrict freedom of communication, that pact of trust is broken.
If the guardians of the Constitution can, in the name of electoral circumstances, set aside fundamental rights, what instance will remain for the people to protect them? This is the essence of institutional rupture: the guardian becomes the violator, and the Court charged with protecting electoral integrity begins to undermine the very legitimacy of the democratic process.
6. Orwell and the literary critique of exception
George Orwell, in his work Animal Farm, portrayed how regimes are born with promises of equality and freedom, but little by little justify exceptions that corrode these values until they replace them with their opposite. The famous commandment of the animals, “All animals are equal, but some animals are more equal than others”, symbolizes the institutionalization of contradiction, of exception as rule.
The parallel with the TSE’s 2022 decision is inevitable: it was stated that censorship was prohibited, but, in an “exceptional” way, censorship was authorized. That is: everyone has the right to freedom of expression, but some content may be more “undesired” than others. This relativization, which begins at a specific point, paves the way for arbitrariness to become naturalized.
7. The international perspective and the San José Pact
On the international level, the violation of freedom of expression is even more evident. Brazil is a signatory of the American Convention on Human Rights, the San José Pact of Costa Rica, promulgated by Decree No. 678/1992. Article 13 of the Pact establishes: “Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and disseminate information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.”
The same provision, in its §2, is categorical: “The exercise of the right provided for in the preceding paragraph shall not be subject to prior censorship, but to subsequent liabilities.”
The Supreme Federal Court, in several rulings, has already recognized the supralegal nature of the San José Pact, as in the paradigmatic decision in RE 466.343/SP (Justice Gilmar Mendes, j. 12/03/2008), where it was established that international human rights treaties ratified by Brazil have higher hierarchy than ordinary legislation. Therefore, by imposing prior censorship in 2022, the TSE not only violated the Brazilian Constitution but also breached international obligations assumed by the Brazilian State.
It is not irrelevant to recall, moreover, ADPF 187 (Justice Celso de Mello, j. 06/15/2011), in which the STF reaffirmed that freedom of expression has a preferential character, with the public space of political debate being the most protected domain. Any attempt to suppress manifestations under the argument of “public order” or “electoral convenience” is incompatible with the Constitution and with international treaties.
Therefore, from an international perspective, the 2022 decision represents an affront to the San José Pact of Costa Rica, to which Brazil sovereignly bound itself. By allowing censorship, even temporarily, the TSE put Brazil on a collision course with the Inter-American human rights system, weakening the country’s position before the international community.
Closing
Perhaps the greatest risk is not censorship decreed by courts, but silence imposed by fear. When citizens no longer dare to speak for fear of being punished, freedom no longer exists. As Orwell warned, “freedom is the freedom to say that two plus two make four; if that is granted, all else follows.” May this text not be a reason for persecution, but for reflection, for when criticism becomes a crime, democracy is already dead. Although I understand that the Brazilian Constitution has been suspended since that date, everything that was created, implemented, and modified since then has taken place under the aegis of a constitution thought but not written.