Expression as the Reorganization of a Shared Condition: Freedom, Restriction, and the Participation Criterion

Debates on the limits of free speech tend to follow one of two shortcuts: from the finding that speech has altered something to the authorization to contain it, or from the protection of expression to the conclusion that nothing is owed to those it reaches. Both are refused here on the basis of a single criterion, that of participation: expression that reorganizes conditions others live from calls for justification before them; the intervention that restricts such expression also reorganizes conditions of participation and must meet its own requirements of justification, competence, and control. The criterion is unfolded into three questions — of diagnosis, of justification, and of response and competence — which separate the duty to answer from the authority to restrict and subject the restrictor to the same examination as the speaker. Drawing on three earlier studies on reception, political myth, and the authorization of action, the argument shows what reorganization alone does not authorize, how the available responses compare, and what each intervention must satisfy. It then applies the criterion to Brazilian law, recording what that law already secures and what remains open, especially in the regime of Article 19 of the Marco Civil da Internet after the Supreme Federal Court’s final ruling in Themes 987 and 533. A comparison with the European Union’s Digital Services Act and the United Kingdom’s Online Safety Act shows that the gaps in the Brazilian regime — reasons for reductions in reach and for moderation under terms of service, and a review body independent of the provider — have normative counterparts elsewhere, which widen the institutional alternatives under discussion.