What is hate speech? The construction of the concept from the dialogue between theory and case law of the Brazilian Supreme Court and Superior Court of Justice

Abstract

The present research aims to elucidate the following questions: what is hate speech for Brazilian higher courts? Does this understanding converge or diverge from what the theorists postulate? To answer them, in addition to the theoretical conceptual survey, a jurisprudential search was carried out in the Superior Tribunal de Justiça and in the Supremo Tribunal Federal until January 2022, analyzing the decisions obtained and identifying the subjects and the content that make this discourse. The method used is the inductive. The conclusion, regarding the subjects, was that there is a convergence between what has been decided by the courts and what the theorists say about this discourse, which is that only vulnerable groups are possible target of this discourse. In turn, from the content, theorists as well as the courts understand the conduct 'incite' is categorizer of this discourse without, however, having a consensus about the verb 'to practice'; some think it’s enough, others don’t. It was also demonstrated that the decisions of the courts have been towards harmonizing the theoretical concepts of hate speech with the type provided in the art. 20 of the Law no. 7.716/1989. Finally, it was suggested that hate speech can be understood as a manifestation of language (expression), which can be performed by spoken words, written texts, published books and even public gestures. The content itself, by itself, reveals the hate (and ideology) of the enunciating subject, not being any content that characterizes the material body of hate speech, but only that which tends to discriminate, oppress, segregate, subordinate, attack specific (vulnerable) people or groups.