Direitos fundamentais na jurisprudência constitucional brasileira: uma análise da aplicação da máxima da proporcionalidade e da fórmula do peso aos julgados do STF sobre o princípio da liberdade de expressão

Abstract

The object of this project is related to the critical examination of the application of the maxim of proportionality and the weight formula – developed by Robert Alexy – in Brazilian constitutional case law. To solve conflicts of interest originated in the collision between two or more fundamental rights principles, the maxim in question must be applied in a procedurally correct way in order to bring rationality to the judicial decision. Therefore, specifically for this work, we intend to analyze lawsuits in which there is a collision between the principle of freedom of expression and another principle of fundamental right, with a constitutional basis. In this context, the study is divided into two parts. The first, a theoretical research, through a bibliographic review, identifying the elements of Robert Alexy’s thought that are essential to the research developed, since it is the theoretical framework used. The second, an empirical research, with the survey on the treatment of the principle of freedom of expression by the Brazilian Supreme Court case law. In the end, it is concluded that the ministers of the STF refer to the maxim of proportionality with a frequency much greater than the determining criteria for filling in the weight formula variables, even if the percentages of non-use of both theoretical constructions – the maxim of proportionality and the weight formula – are quite expressive.