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Comment by throwawaysugar | Hacker News Reader

Then a judge gets to decide whether it's enough to infringe the law or not, as is the case in all legal matters (except sometimes that is the role of a jury or arbiter, to be pedantic)

Context is key. IANAL nor a judge, but I think saying "<insert race> is primarily and disproportionately responsible for <insert societal ill>" is a valid statement (i.e. not quote-unquote racist) IF you are saying it in the context of an intellectual discussion, open to providing data to support it, explaining why your comment has a purpose other than just discrimination, etc. etc.

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Do you happen to have the (translated) wording of that law? I understand your description is somewhat speculative since YANAL, but it's still troubling, especially the part about "purpose". E.g. could a true, objective statement of fact, based on some undisputed data (such as statistics gathered and published by the government itself), still be criminal if it was uttered for the "wrong" purpose?

Conversely, are unsubstantiated and even false statements (that don't qualify as libel Edit: nor fraud, false advertisement, copyright infringement, and other strictly commercial limits on speech) allowed, so long as they advance the "right" purpose?

I think you're touching on various different issues like fraud, false advertising, racism, etc. so there's no clear answer. You would need to pick a specific case for someone to weigh in on.

The Wikipedia article on freedom of speech in Brazil is a good starting point: https://en.wikipedia.org/wiki/Freedom_of_speech_in_Brazil

It's not a particularly well-written article, but it does lay out the key article from the constitution (article 5) and the various articles in the penal code and the anti-racism law (which is a specific law!) regarding freedom of speech.

Additionally, Article 3, paragraph 4 of the Constitution is key. It's placement at the very top of the constitution, if not legally meaningful, feels politically meaningful to me:

Art. 3 The fundamental objectives of the Federative Republic of Brazil are:

I. to build a free, just and unified society;

II. to guarantee national development;

III. to eradicate poverty and substandard living conditions and to reduce social and regional inequalities;

IV. to promote the well-being of all, without prejudice as to origin, race, sex, color, age and any other forms of discrimination.

So the proof of the pudding to me as a layman is whether whatever form of speech you used qualifies as "prejudice as to origin, race, sex, color, age and any other forms of discrimination"

It's so much worse than I thought: Article 287 - Making publicly, praise or justification of criminal act or crime author: Penalty - detention of three to six months or a fine.

So "He was justified in sabotaging logging machines, because sacrificing our rainforests for profit is wrong, and the government hasn't done enough to reduce logging" carries an up to half a year prison term.

Don't ignore the "or a fine". A situation like you described doesn't commonly result in any jail time (or in any fine, tbh)

Besides, I'd wager even if the whole state hated you, you would clearly be protected in that specific scenario by article 5 of the constitution, which trumps the penal code or other ordinary laws:

IX - are free the expression of intellectual, artistic, scientific and communication, regardless of censorship or license;

But again, IANAL (although married to one)

So either article 5 of the constitution trumps article 287 so completely that 287 is legally dead and it would make no difference if it was erased entirely, or you better hope you get a judge sympathetic to your cause. I.e. stay in the good graces of your superiors.

Article 287 is in the Penal Code, not in the Constitution. The constitution is the top dog in the legal hierarchy. The Penal Code is pretty high up there and trumps thinks like local laws.

Some laws are written in such a way that, eventually, when put to the test and being presented to the Supreme Court, which judges matters of constitutionality, they may indeed be declared void for being unconstitutional. That has never happened for article 287 of the penal code, although it may one day. You'd need an actual case to make that claim, though.

There are no "superiors", except for the constitution.

The law as written doesn't take into account whether the Supreme Court judges are corrupt or politically appointed/influenced. The law spells out what "ought to be", not what "is".

> That has never happened for article 287 of the penal code, although it may one day. You'd need an actual case to make that claim, though.

Ok, so unless article 287 has literally never been used, my fear is valid.

> There are no "superiors", except for the constitution.

I was referring to the defense of "oh but they'd never use this overreaching law badly". If the law is too vague or broad, those interpreting it become your superiors, since they get such wide latitude.

Having to pay a fine instead doesn't make it better.

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