Liberdade de expressão: a transformação de um conceito filosófico em um princípio constitucional nos EUA e o nomos do cyberspace

Abstract

This thesis investigates the historical, philosophical and legal evolution of freedom of expression, analyzing its transformation from a political-philosophical concept into a constitutional norm, with particular emphasis on the American model. It is argued that, whereas the English tradition—grounded in parliamentary sovereignty—primarily sought to prevent prior censorship while maintaining mechanisms of post-publication accountability, the United States model—shaped by popular sovereignty and judicial review—assigned to the Judiciary, and ultimately to the Supreme Court, the central role in defining the boundaries of this fundamental right. The study is structured into four parts. The first section examines the British tradition, exploring the consolidation of parliamentary sovereignty within the English constitutional system and the mechanisms for controlling expression, beginning with the licensing regimes under the Tudor and Stuart monarchies. It also discusses the theoretical contributions of John Milton, John Locke, the Cato’s Letters, John Stuart Mill, and Alexander Meiklejohn, who provided the philosophical foundations for the defense of freedom of expression. The second part analyzes the American Revolution and its influence on the construction of a new constitutional paradigm, characterized by popular sovereignty, the adoption of a written Constitution, and the incorporation of freedom of expression into the Bill of Rights.The third part traces the evolution of judicial interpretation of the First Amendment, highlighting doctrinal transformations in Supreme Court jurisprudence throughout the twentieth century. The thesis concludes with a reflection on the contemporary tensions between freedom of expression and regulation, particularly in the context of the internet and social media, where the Supreme Court now faces unprecedented challenges in reconciling democratic values with technological innovation in a globalized world.