Atuação do TSE no combate a ataques contra a democracia: análise do limite entre liberdade de expressão e ataque institucional a partir da atuação do TSE

Abstract

The present study aims to analyze the context of the 2022 Brazilian election, taking as a starting point the modus operandi of content dissemination and information manipulation systems that emerged during the electoral process since the 2016 U.S. elections and the 2018 Brazilian elections. Additionally, it seeks to investigate the competence of the TSE (Superior Electoral Court) in addressing the issue and the measures taken, especially whether they were legitimate and appropriate. It also addresses the clash between freedom of expression and the fight against antidemocratic acts through the analysis of decisions and foundations of the Right to Freedom of Expression. Finally, the study aims to examine the Principle of Proportionality, with the goal of understanding the hermeneutics capable of guiding the judge in the face of conflicts between fundamental principles. It also aims to extract parameters from the Principle to verify how such conflicts should be addressed and whether the TSE acted accordingly. The hypothesis to be tested is that the TSE was addressing a legitimate problem but, in its actions, sometimes exceeded its institutional role, failing to establish a valid balancing judgment based on robust reasoning, which is crucial for the correct application of the Principle of Proportionality. As for the results, it became evident how institutional attacks and fake news can corrode democracy, as well as the competence of the TSE in enforcing electoral legislation. Moreover, given the fundamental nature of the right to freedom of expression, it became clear that its restriction by the TSE, in some cases, deviated from the logical path of balancing proposed by the principle of proportionality. This also represents a risk to democracy, given the need for its own protection. The research methodology was exploratory, relating key concepts of the topic and how one affects the other, through the study of secondary sources: literature review, jurisprudence, and legislation. The data treatment was predominantly qualitative.