O direito eleitoral e a liberdade de expressão: política, palavra e paixão

Abstract

This study aims to provide an initial contribution to the setting out of a new approach of electoral law, by the reading of its institutions, rules, principles and structural logic through the lens of the constitutional system of freedom of expression. Its starting point is the understanding that Brazilian electoral law does not confer on free speech its proper weight. In the context of the campaigns, the freedoms of expression, information and press have been overly sacrificed. Instead of being structured to ensure an uninhibited, robust and wide-open debate on public issues, the theoretical framework of electoral law seems to be organized exactly in the opposite direction, seeking to reduce the flow and opposition of information, ideas and opinions. The study identifies two main causes of this scenario. Firstly, and more generally, this is because the culture of freedom of expression did not take root in Brazil. Second, and more specifically, because the dogmatic of electoral law suffers from a serious theoretical underdevelopment, which is reflected in three main deficiencies: (i) the absence of identification and consistent systematization of the guiding substantive principles of electoral law, (i) the construction of the discipline under inconsistent and contradictory theoretical foundations, and (iii) excessive, unsystematic and casuist regulation, established with disregard for the fundamental rights system. To overcome these problems, firstly, the study proposes a new theoretical framework for the right of free speech, in order to provide the tools that are required for proper campaign regulation. Secondly, it presents an overview of the current treatment of freedom of expression in electoral law and offers a new reading of much of the regulation of election campaigns in the light of the constitutional system of freedom of expression, including the regulation of political propaganda, access to the media during the election, and campaign finance.