Defensive democracy in the Brazilian Supreme Court: the fake news inquiry as a stimulation for the emergence of a constitutional jurisprudence in the defense of democracy

Abstract

Inquiry nº 4.781/DF, also known as the “fake news inquiry”, had begun due to anti-democratic attacks promoted by supporters of President Bolsonaro against members of the Brazilian Supreme Court (STF). Latter, in August 2021, the President himself was included in the aforementioned procedure, as one of the investigated subjects. The critics about the illegality and illegitimacy of the investigation are plausible, especially because advocate that it is inadequate for the same body of judicial members to promote an investigation that can be latter judge by them. However, for many people, the position of the STF is a possible expression of the so-called defensive democracy, a European-based doctrine that recommends a more energetic stance by the holders of judicial power against non-democratic parties and groups. Given this scenario, the scope of this work is to analyze whether the fake news inquiry is compatible with the defensive democracy doctrine and whether it has the potential to contribute for the construction of a constitutional jurisprudence methodologically compatible with the aforementioned doctrine in Brazil.