Discurso proselitista contrarreligioso: categorias decisórias nos RHCs 134.682 e 146.303

Abstract

This study aims to identify and analyze, in light of the selected theoretical framework, the decision-making parameters effectively mobilized by the Brazilian Supreme Federal Court (Supremo Tribunal Federal - STF) in RHC 134.682 and RHC 146.303, both adjudicated in cases involving counter-religious proselytizing speech. To this end, the research adopts Discursive Textual Analysis (DTA), a qualitative method in which language plays a central role in understanding the phenomenon, as it represents the intermediation of the human element in the scientific process, proving suitable for the examination of judicial decisions. The method comprises the texts’ deconstruction (unitization), their reconstruction (categorization), and the metatexts’ production (communication), following a non-linear analytical path applied to the research “corpus” (the judicial decisions), selected through jurisprudential research conducted in the STF’s electronic database. This methodological approach is justified by the increasingly prominent role judicial decisions play in the interpretation and application of law. The categories that emerged from the analysis of RHC 134.682 were: (i) the special status of religious freedom; (ii) the constitutional dimension of decision-making parameters; (iii) criminal law bases; (iv) a three-stage test for the characterization of hate speech; and (v) contextual criteria for evaluating speech, each comprising its own subcategories. These categories were subsequently employed as an interpretive framework to identify continuities, shifts, and silences of meaning in the examination of RHC 146.303. In the latter case, the following were identified: (i) religious expression as a derivative of freedom of expression (thus, not possessing a special status); (ii) the constitutional dimension of decision-making parameters (with partial reformulation of prior understanding); and (iii) criminal law bases, while the remaining categories identified in the first decision were not mobilized as ratio decidendi due to a divergence in the underlying reasoning concerning the scope of protection afforded to speech. The findings indicate a partial shift from the understanding adopted in RHC 134.682, accompanied by a reduction in the decision-making categories’ density through an increased level of abstraction in relation to the concrete case. The critical conclusion, in light of the adopted theoretical framework, is that RHC 134.682 provides more consistent and reliable parameters. The methodological path’s internal coherence suggests that the identified decisional shifts resulted not from differences in the object of adjudication, but from changes in the judicial reasoning mobilized by the Court. Accordingly, although both judgments present interpretive gaps that warrant further theoretical development, their use as judicial precedents must take into account the specific nature of the subject matter - counter-religious proselytizing speech. Extending either ratio decidendi to hate speech cases in general may therefore be misleading, notwithstanding the greater theoretical and decisional coherence observed in RHC 134.682 when compared to RHC 146.303 in light of the selected legal literature.