In the view of the Brazilian judiciary, Gentili had gone too far, and this month a court ordered him jailed for six months. The judge found that Gentili’s action was “intended to offend” and “never to be confused with a simple piece of spontaneous humor.”
Gentili has cast himself as a martyr to political correctness: “I never imagined one day being sentenced to prison for protesting against censorship,” he tweeted.
He is appealing, and legal analysts say he’s unlikely to see the inside of a cell. But the line between offensive and criminally offensive has become a central issue in Brazil today, as the nation’s institutions — including its new president — test the boundaries of the freedom of expression.
Brazilian law, which is largely modeled on the U.S. system, includes in its constitution echoes of the First Amendment’s guarantee of freedom of expression. But a criminal provision that allows penalties for those who “disrespect” public officials opens a loophole for censorship.
That loophole, combined with a culture of high-level rule-dodging, has yielded several recent incidents that have provoked the concern of Brazilians and international observers alike — and created strange bedfellows in support of free speech: Gentili’s defenders include both the progressive Human Rights Watch and the right-wing President Jair Bolsonaro.
“My position will always be favorable to freedom of expression,” Bolsonaro tweeted after the court ruled against Gentili.
“International law is clear,” agreed Maria Laura Canineu, Brazil director for Human Rights Watch. “No one should go to prison because they said something offensive, no matter how distasteful or obnoxious the remarks.”
Maria Cecilia Almeida, a professor of philosophy at the University of Brasília, argues that it is Bolsonaro and his administration who have set the tone for “the authoritarian track we are seeing in Brazil.” She says the debate “is just a symptom of a greater problem in Brazil: the weakening of the rule of law.”
Several recent incidents have drawn attention to the ambiguity of Brazil’s free-speech protections.
In what Canineu called a “disturbing” incident, a Supreme Court justice last month ordered two right-wing online news sites to remove an article that mentioned him, and asked that federal police investigate the news outlets’ directors.
The websites were known for sometimes publishing fake stories. Almeida said, “The willingness of the judge to go so far as to ask for a site’s story to be removed demonstrates a bigger problem: Brazil’s judiciary is losing its grip on preserving democracy.”
Bolsonaro, of course, has drawn international attention for his provocative and sometimes offensive commentary.
He praises the military dictatorship that arrested and disappeared thousands of suspected guerrillas in the 1970s. He has said he would rather a son be dead than gay. He called congresswoman Maria do Rosário Nunes, Gentili’s target, too “ugly” to rape.
The president seemed to backtrack in his support of free expression when he ordered a television commercial for a government-controlled bank taken off the air for ostensibly disrespecting traditional family values. The commercial for Banco do Brasil show a variety of young Brazilians, including white men, black women, and a transgender woman, using the institution’s mobile services. Banco do Brasil pulled the commercial and fired its marketing director.
Alan Mansur, the former director of Brazil’s Association of Federal Prosecutors, said Bolsonaro overstepped his authority.
“According to our legislation, the president cannot intervene in the marketing of a public company like Banco do Brasil,” he said. “The decision about what that marketing looks like should be decided by technical and market criteria, not ideological criteria.”
Bolsonaro has defended his order.
“The line has shifted,” he told reporters. “The masses want the family to be respected.”
Bolsonaro routinely challenges the boundaries of taste. He was broadly criticized in March for tweeting a pornographic video of a man urinating on another man at what appeared to be Brazil’s Carnival.
“I’m not comfortable showing this,” he explained, “but we have to expose the truth so that the population can have this knowledge and decide on its priorities.”
He eventually took that one down himself — after learning that the two men in the video were pursuing legal action.