A regra e os valores do jogouma análise sobre a legitimidade de decisões do TSE contra a desinformação eleitoral em 2022 sob a ótica da doutrina da democracia defensiva e da catimba constitucional

Resumo

This study investigated two decisions of the Superior Electoral Court (TSE) during the 2022 elections that raised concerns among relevant sectors of society about possible prior censorship in the name of democracy: Representation n. 0600922-17.2022.6.00.0000 (“Jovem Pan Case”) and the Judicial Electoral Investigation Action 0601522-38 (“Brasil Paralelo Case”). The research aimed to determine whether the analyzed decisions can be interpreted as a legitimate expression of the theory of defensive democracy (Vieira; Borges, 2023). Using this doctrine, interpreted through the lens of the constitutional catimba thesis (Glezer, 2021) as a theoretical framework, the study identified two elements that integrate the explanatory horizon of both theories: the rules of the game and the values of the game. Based on these elements, the dissertation proposed the organization of analytical categories to assist in jurisprudential analysis and evaluated, in light of each decision, i) whether the rules of the game were violated and ii) whether any violation occurred in respect to the value of the game. Based on these parameters, the study suggests that the decision in the Jovem Pan case cannot be legitimized from the perspective of the doctrine of defensive democracy because the breach of the prior censorship rule was not accompanied by the Court's confrontation of the argumentative burden to justify that such violation occurred due to the values of the game. The decision in the Brasil Paralelo case, however, can be legitimized from the perspective of the theory of defensive democracy because, although it disregarded the prohibition of prior censorship, it did so by presenting arguments based on the need to defend the democratic game. This research concluded that the values of the jurisprudentially established democratic game such as popular sovereignty and political plurality, instrumentalized by freedom of expression, were replaced by the protection of a “clean” debate, thus configured from a concern with the electorate’s manipulation. The change in emphasis on the nature of the threat to democracy presents challenges to the construction of a consistent jurisprudence, considering these two distinct moments of the TSE (prohibition of censorship, imposition of censorship) in a context of return to social normality. The explanatory scope of the theories of constitutional catimba and defensive democracy as conceptual alternatives to the positivist approach was recognized, but the challenges that remain in the application of such theories were also acknowledged, as the misuse of the idea of defensive democracy can itself become detrimental to democracy.

Ficha do documento

Tipo

Dissertação

Ano

2024

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/35239

Palavras-chave

Tribunal Superior Eleitoral (TSE)Censura préviaDemocracia defensivaCatimba constitucionalLegitimidade decisóriaDemocraciaSuperior Electoral Court (TSE)Prior censorshipDefensive democracyConstitutional catimbaJudicial legitimacyDemocracyDireitoDesinformaçãoDemocracia - Aspectos morais e éticosBrasil. Tribunal Superior EleitoralPoder judiciárioDecisão judicial - Brasil