Entre Dizer e Ferir: discurso de ódio, direito e linguagem

Abstract

This study investigates the definition of hate speech adopted by the Brazilian Supreme Federal Court (STF) in the judgment of the Direct Action of Unconstitutionality by Omission No. 26 (ADO 26), in which homophobia and transphobia were equated with the crime of racism. The research starts from the hypothesis that the concept established by the Court, although relevant, presents a high degree of indeterminacy, making its uniform and predictable application difficult. A qualitative approach is adopted, combining documentary analysis, bibliographic research, and a case study, through a dialogue between constitutional law, international human rights instruments, and the theory of language performativity, with emphasis on J. L. Austin, Critical Race Theory, Jeremy Waldron, and Judith Butler. The investigation shows that the notion of incitement in the STF’s definition limits the understanding of the phenomenon by disregarding that speech can perform, at the very moment of its utterance, discrimination or symbolic violence. It is proposed to replace the criterion of inciting with that of performing, understanding that such performance occurs only when social and historical structures of discrimination — such as racism, patriarchy, or LGBTphobia — are effectively mobilized (and not merely touched upon) to degrade the dignity and assurance of individuals as members of vulnerable groups. From this perspective, the attack must target the person in their political and civic condition, and not merely offend their subjectivity or personal beliefs. It is concluded that hate speech should be defined as a speech act that performs discrimination or symbolic violence. Its identification requires the analysis of the felicity conditions of the performative act, in order to verify whether the necessary elements are present for it to produce immediate social effects on the dignity and assurance of individuals. The proposed concept, although more concise than that adopted by the STF, offers greater conceptual density and legal certainty by requiring the analysis of the linguistic content, the social context, and the conventional force that sustains the act, reducing the margin of subjectivity and promoting a balanced protection between freedom of expression and the prohibition of discrimination.