The 8-Year Punchline

The United States is known globally as the country of freedom, looked to by the international community for inspiration. After the end of its military dictatorship in the late 1980s, Brazil sought to create a brand new constitution with its civil liberties partially based on the American Bill of Rights. However, in its convoluted 320 articles and 145 amendments, the document fails to establish a strong equivalent to the American Constitution’s First Amendment, which protects freedom of speech, the foundational freedom for any democracy.

The four articles in the Brazilian Constitution that begin to protect speech are supposed to safeguard these inalienable rights; however, they don’t expressly limit Congress from passing laws that infringe upon this liberty. There are dozens of Brazilian laws that actively criminalize certain types of speech, including hate speech, religious offense, defamation, insult, mockery of the national flag or anthem, and even offending someone’s dignity on the internet. Though these laws are passed with good intentions, their vague language and broad range of applications create scenarios where speech is policed and the arbitrary suspension of inalienable rights takes center stage as someone tries to differentiate offending someone from free speech.

Recently, Brazilian comedian Léo Lins was sentenced to 8 years and 3 months in prison for jokes made in a stand-up comedy show. Astoundingly, people who willingly paid to attend a comedy show got offended and sued the comedian for a joke. For comparison, the recommended sentence for murder is, at most, 20 years, rape generally yields a sentence of 2 to 8 years, and embezzling public funds yields 2 to 12 years. In some cases, one would be better off embezzling the government than making a joke.

The plaintiffs claim the jokes cited in the lawsuit are fatphobic and homophobic – some examples are: “If you [audience member] go to the zoo, the animals will take pictures,” or  “What [comedy] show could be more inclusive? I even hired a sign language interpreter just to be able to offend the deaf-mute.” The lawsuit claimed that these comments were not protected by the Constitution given that these jokes were discriminatory against minorities, with the judge saying “When there is a confrontation between the fundamental precept of liberty of expression and the principles of equality, the latter should win out.” This action has been interpreted as an offense under a law in Brazil, originally enacted to criminalize racial discrimination but that has been used to criminalize speech deemed offensive toward a broad list of “minority” groups, including LGBTQ+ individuals, religious communities, and people with disabilities, among others. This law creates a situation where the same constitution that protects speech against artistic censorship allows a judge to classify what can or can’t be said in a standup comedy show.

Unlike in the U.S., where insults are considered protected speech and only become punishable when proven to be untrue and cause tangible, provable harm, in Brazil, one can sue someone for simply making an unkind or critical remark, regardless of actual damage. Brazilian defamation law criminalizes calúnia (false accusation of a crime), difamação (damage to someone’s reputation), and injúria (offensive insult), all of which can be prosecuted without proof of material harm. This means that if someone says something that is not true or hurts someone’s feelings, without any material damage, there’s a legal basis to challenge this person’s speech in court.

So why doesn’t someone sue the government claiming speech-restricting laws are unconstitutional? There have been notable cases in the U.S. where a person appealed to their First Amendment rights, and the justice system upheld the Constitution above local laws or congressional acts. The issue is that the STF, Brazil’s Supreme Court, handles over 78,000 cases a year, meaning it could take years before the case is settled after all appeals are exhausted. Furthermore, Article 312 of the Code of Criminal Procedure allows for jail time without trial, where the defendant is put in jail for years before a verdict if the judge believes such action caused “public disorder.” So, in practice, someone can be wrongfully accused of ”hate speech” and spend years in prison until the court may or may not decide that the Constitution overrules that law.

Since the Constitution’s authority does not supersede civil laws in practice and such abuses can’t feasibly be contested in the STF, free speech becomes hyper-malleable. The First Amendment is clear, concise, and hierarchically supreme in the U.S. But what happens when other laws contradict the Constitution? What happens when the Brazilian legal system allows an ordinary statute to override the highest principles of the republic? The Constitution becomes ornamental. It exists only in theory. In practice, judges defer to lower laws, and the foundational document becomes an empty promise, providing no real guarantee or actionable protection.

In a country without true freedom of expression, power flows not from the people but from the institutions that decide what is appropriate. Humor becomes subversive, journalism becomes risky, and, above all, speech becomes a privilege, controlled by those in power to be taken away as they please. The result is a culture of fear where comedians have to self-censor and, as in the times of military dictatorship, artists and politicians speak in codes since they can’t speak freely. How can a constitution claim to steer the republic away from authoritarianism if it doesn’t protect free expression?

The American approach is incredibly elegant and beautiful in its simplicity. One amendment: “Congress shall make no law… abridging the freedom of speech.” That’s it. No exceptions carved out for feelings, identity, or offense. In a real democracy, speech isn’t protected so long as it’s nice; it’s protected precisely because it might not be. Real freedom doesn’t come with a list of disclaimers or footnotes; it comes with responsibility, risk, and the maturity to understand that words should be answered with words, not handcuffs, and it is a shame to see a promising country fall through the cracks of liberty.