FREEDOM OF EXPRESSION, INSTITUTIONAL ARCHITECTURE OF INFORMATION, AND DIGITAL PLATFORMS: THE EXHAUSTION OF THE BRAZILIAN SUPREME COURT’S COMMUNICATIVE PARADIGM

Abstract

This article critically examines the communicative paradigm consolidated by the Brazilian Supreme Court, especially through ADPF 130 and RE 511.961/SP, in light of the structural transformation of the public sphere in the age of digital platforms. It argues that this paradigm has aged poorly because, by radicalizing freedom of the press under a logic of precedence and predominantly ex post forms of accountability and, subsequently, by bringing professional journalism closer to individual freedom of expression, it produced a dogmatic architecture that is now insufficient to distinguish, in constitutionally adequate terms, personal expression, the institutional architecture of information, and the private intermediation of informational circulation. The study adopts a hypothetico-deductive method, combining dogmatic-jurisprudential reconstruction with critical-systemic analysis, and articulates the case law of the Brazilian Supreme Court and the Inter-American Court of Human Rights with the relevant scholarship on the right to information, the institutional structure of informational circulation, the platformization of the public sphere, and algorithmic mediation. It further argues that freedom of expression can no longer be understood solely through a subjective and negative lens, since it also has an objective and institutional dimension linked to pluralism, the formation of a free public opinion, and the protection of the structural conditions for the social circulation of information. Finally, the article proposes a dogmatic reconstruction grounded in the differentiation between individual expression, professional journalism, and digital platforms, in order to restore the normative capacity of democratic constitutionalism in the face of the contemporary erosion of the institutional architecture of information.