FREEDOM OF SPEECH IN THE ELECTORAL PERIOD: ARE RESTRICTIONS ALLOWED BY THE FEDERAL CONSTITUTION?

Abstract

The presente article aims to study freedom of expression in the context of the electoral period, having the judgment of ADI 4451 as reference, which led the theme to the evaluation of the Supreme Court. The research is documentary and adopts a deductive approach, identifying the premises set out in the STF judgment to indicate the guidelines for the next elections. The judge recognizes that restrictions can be allowed to guarantee the integrity of the electoral process. The prohibition of political advertisement is an example. However, the decision consistently follows the jurisprudence of the constitutional court, recognizing that restrictions on freedom of expression are exceptional. In this sense, it recognized the disproportionality of the restrictions imposed in art. 45, paragraphs II and III (second part), of the Law on Elections (Law 9.504/1997). Although in the event of obiter dictum, fake news phenomenon is mentioned in the trial, which recognizes the freedom of the press as an essential instrument for combating this pernicious phenomenon to the democratic regime. The approach is original because it includes current debates on the topic of fakes news in the analysis of the trial, wich importance is highlighted with the proximity of municipal elections.