Liberdade de expressão humorística e discriminação: entre a proteção de minorias e a censura

Abstract

This study addresses the issue of humorous freedom of expression and its legal limits in the face of manifestations considered discriminatory, examining the tension between the protection of minorities and the risk of censorship in a democratic state governed by the rule of law. The main objective is to analyze whether, and to what extent, contemporary theories of discrimination—particularly the concepts of structural racism and recreational racism—may justify restrictions on humorous expression without undermining artistic freedom and democratic pluralism. The methodology adopted is predominantly bibliographic and qualitative, based on national and international doctrinal works on fundamental rights, freedom of expression, theories of humor, and structural forms of oppression, as well as on the analysis of relevant judicial decisions in Brazil, especially those issued by the Federal Supreme Court. The study begins with a historical overview of fundamental rights and freedom of expression, proceeds to examine humor as a specific form of language and artistic manifestation through its main explanatory theories, and subsequently develops a critical assessment of the application of discrimination theories to humorous discourse. The results indicate that, although theories of structural racism, recreational racism, sexism, and LGBTphobia offer important contributions to understanding social inequalities, their automatic and uncritical application in the legal sphere may lead to excessive restrictions on freedom of expression, particularly when context, communicative intent, and the non-literal nature of humor are disregarded. The analysis of judicial cases shows that Brazilian law tends to favor subsequent liability over prior restraint, rejecting censorship and requiring objective criteria for limiting humorous speech. The study concludes that the protection against discrimination cannot serve as a basis for the indiscriminate suppression of humorous expression, and that legal assessment must be conducted on a case-by-case basis in order to preserve human dignity, legal certainty, and the pluralism of ideas inherent to a democratic society.