Racism from the Perspective of the Brazilian Courts of Justice: A Critical Analysis

Abstract

Brazil, 1990. Siegfried Ellwanger Castan, author and publisher of anti-Semite content books, is prosecuted for the crime commonly known as racism. With the conviction sustained in State Court and in the Superior Court of Justice, the trial gets to the Supreme Federal Court (in Brazil, it’s called Superior Tribunal Federal, also known as STF). Defense claimed that the Constitution provides imprescriptibility to the crime of racism, and that as the defendant was convicted for anti-Semitism, and Jews are not a race, therefore the case was not racism. Considering the time elapsed since the actions of the defendant under judgement, any of the possible crimes would have prescribed. Thus, the question “Jewish are a race or not” inaugurated the most relevant judgment about racism crime in Brazil. This debate about race concepts was only late followed by seriously questioning over whether the publishing of a book might be a crime, and what would be the boundaries between the freedom of speech and crime of racism. “Who is involved” in the acts, “where” and “under what circumstances it was done” were some of the topics debated before denegation of the writ. This work focuses on that last point of debate. If the committing of a crime by publishing a book caused doubt in its classification as an illegal action, what about racism in the culture brought by internet, where expression is utter rule, and a speech, once posted, gains unmanageable reach? Ellwanger case analysis shows that the elements for characterization of racism crime by STF Justices influence the consequences given to such behaviors. Would the criteria used by Brazilian Supreme Federal Court be sufficient to cope with the new dimensions of expression brought by internet?