Exploring Legal Borderlands Between Public and Private regarding the Right to Freedom:

Diálogos constitucionais com o ministro alemão Thomas Offenloch

Abstract

This article originated from an academic visit by a group of German jurists to Brazil to the Escola Superior do Ministério Público da União to establish a constitutional dialogue with the German Justice Thomas Offenloch, exploring the legal borderlands between public and private dimensions of the right to freedom. In his lecture during the academic visit made in February 2025, Justice Thomas Offenloch provided an important reflection on the role of the German Constitutional Court in defending democracy and protecting the fundamental right to freedom. This article provides a problematization of the terms of this debate by presenting a series of different case studies that provide distinct nuances and position the discussion in a different dimension, crossing the borderlands between private and public dimensions and eventually transforming the potential solution to an analogous controversy. The connection between fundamental rights to freedom of expression and to freedom of the press and democracy is clear. Not surprisingly, authoritarian governments seek to deconstruct and to erode the democratic rule of law by reducing freedom of expression and of the press. An antidote to democratic backsliding should be the preferential protection provided to the fundamental right to freedom of expression in both Brazil and Germany. On the other hand, there are legal borderlands for communication and limits on humor. Likewise, journalistic communications on eminently private subjects may be judicially balanced to prevent violation of other fundamental rights, like the right to privacy and honor, for instance.