João Paulo Capelotti (practicing lawyer, Curitiba, Brazil)
On February 23rd, controversial Brazilian stand-up comedian Leonardo de Lima Borges Lins, who had been convicted to 8 years in prison by a federal judge in May 2025, was acquitted by a panel of appellate judges in São Paulo, Brazil’s largest city.
In his 130-page opinion, judge Ali Mazloum quoted John Stuart Mill, Oliver Wendell Holmes Jr, Robert Alexy and precedents from Brazilian Supreme Court to defend his view that the intervention of criminal law in humor should be exceptional, and this was not the case for it (Case n. 5003889-93.2024.4.03.6181, 5th Panel of the Federal Court of Appeals for the 3rd Circuit).
The court analyzed Lins’ stand-up comedy show “Perturbador” [“Disturbing”], recorded in 2023 and available on his channel on YouTube, in which he cracked jokes that were deemed to violate antiracist legislation, recently amended to criminalize the so-called “recreational racism” – that is, racist slurs uttered in a context of amusement or fun, with the theoretical purpose of entertainment, but disguising prejudicial intents (for more details about the show and its context, please check J.P. Capelotti, Leo Lins’ stand-up comedy routines: between censorship and hate speech, European Journal of Humour Research, 12(3), October 2024).
Initially, the district court determined the removal of the video from Lins’ channel and forbade him from making new jokes that could be considered offensive. These restraints were lifted by the Supreme Court a few months later, as they were deemed disproportionate and seen as violations of the Federal Constitution, which forbids prior restraints on speech. This victory, however, was short-lived, as federal judge Barbara Iseppi was convinced that Lins had committed a series of crimes during his show. According to her, humor cannot be an excuse for sheer offense, and the purpose of entertainment pursued by Lins’ racist jokes is a cause to increase penalties, not to dismiss them.
On February 23rd, however, this sentence was overturned by a majority of federal appellate judges, following the opinion written by Ali Mazloum, a son of Lebanese refugees, former prosecutor, judge since 1992 and appellate judge since 2022, with a master’s degree in criminal law by the Classic University of Lisbon.
Mazloum defended the virtues of free speech, but stated that humor should have limits, too. In his words:
“It should be stressed that the Federal Constitution does not protect only well-behaved speech. Should that be the case, we would live under a sort of ornamental freedom, merely rhetorical. This important distinction should be made: the offensive idea should not be punished, but the oppressive one should. Freedom of speech is a right to speak up, not to shut somebody else down. However, there are limits. And the limits do not lie in bad taste, in heavy irony or sharp criticism. They actually consist in the denial of human dignity for historically vulnerable groups, in the transformation of people or collectives into enemies (and not mere targets of criticism), in the stimulation of discrimination, exclusion or violence, even under the joke label. In short, prohibition of humor should be exceptionally necessary when: (i) it seeks to normalize violence; (ii) when humor is used to reinforce oppressive hierarchies; (iii) when it turns cruelty into entertainment. Here, the problem is not humor itself, it is the target and the intention” (Opinion, p. 90, my translation from the original in Portuguese)
What the opinion does not consider, apparently, is that Lins’ routines were being accused of (i) normalizing violence (for example, with rape jokes), (ii) reinforcing oppressive hierarchies (e.g., when he poked fun on labor market conditions for black people and compared them with slavery) and (iii) turning cruelty into entertainment (e.g., joking about people with disabilities crawling to the stage to watch him).
Mazloum, however, has not tackled, or maybe has not noticed, these apparent similarities between the conditions that, in his view, would authorize judicial intervention in humorous speech, and Lins’ actual statements during his shows. It is still to be seen whether these incoherences will be explored by the Prosecution in future appeals. The opinion’s key points are, synthetically:
(a) Lins’ absence of specific discriminatory intent, which would be necessary for the applicability of the antiracist law provisions;
(b) the concept of “recreational racism” cannot lead to assumption of guilt, and courts could not turn into “social sensitivity commissions” (p. 95);
(c) there is reasonable doubt in this case that Lins’ jokes had a discriminatory purpose or had surpassed mere social critique or artistic freedom;
(d) the fact that the jokes were uttered during a show (on stage, with costume and lighting design, etc.) leads to the assumption that the whole routine was covered by comic exaggeration, and not discriminatory intent;
(e) the district court judge ignored a central element of the evidence, that is, Lins’ final disclaimer to the audience, stressing that, for him, humor is a way of elaborating pain and a means of artistic freedom; that laughter enables the necessary distance to face difficult situations; that his jokes never aimed to offend, but to relieve and provoke reflection, and, finally, that “humor has no limits, but the environment does”, signaling that the show takes place in a theater devoted to comedy and that the audience chose to be there to hear whatever he had to say, even the most absurdist jokes.
Mazloum stressed that he sought objective parameters to evaluate the case and could not convict Lins because of his sheer aesthetic disagreement with the jokes told on stage. For him, actual “recreational racism” requires intention to exclude or attack vulnerable groups, which would be absent in this case. Also, recalling his theoretical framework stated in the beginning of the reasoning, Lins’ jokes did not bring concrete damage to third parties (Mill), did not bring clear and present danger (Holmes) and could not be restricted under adequate, necessary and proportionate measures (Alexy). As a last statement, the judge lamented the undue expansion of criminal law for cases that, in his view, did not demand its intervention.
Appellate judge (and criminal law professor herself) Raecler Baldresca followed Mazloum’s reasoning, but did not issue a concurrent opinion. Judge André Nekatschalow dissented. In his view:
“The so-called humor made by the defendant is based on the humiliation of the other. (…) In this case, it is proved to me that the defendant acted with specific intent of discrimination, as the public humiliation on the grounds of race, color, ethnicity, religion, handicap, is what leads to the egoic satisfaction of him and his equals, distributing prejudice across the internet and social media, inducing and inciting feelings of such nature. The fact that three defense witnesses (black man, black woman, fat man) declared to be admirers of the defendant or not offended by him, does not allow to acknowledge absence of willful misconduct” (Opinion, p. 127, my translation)
Nekatschalow, however, considered that the penalty given by the district court judge was too high, proposing to reduce it to 5 years, 1 month and 20 days of incarceration.
One can easily notice that this discussion is far from having an end and will likely go up to the Brazilian Supreme Court. Hopefully, some more attention will be paid there to the central discussion in this case, that is, the true range and meaning of the recent changes introduced by Bill n. 14.532/2023 to Bill n. 7.716/1989, concerning so-called “recreational racism.”
So far, beyond rhetorical displays, there has not been much effort to understand in concrete how prejudicial intent can be disguised in the middle of jokes. It is a bit shocking to notice that neither the prevailing opinion nor the dissent quote any literature about this specific topic.
It is clear that Mazloum prepared a long, careful opinion, but it is also evident that it lies upon more general principles of free speech and personal takes on the role of humor and the necessary self-contention of judges, failing to address more properly the loopholes of current legislation, still awaiting courts to interpret them. Not to mention the apparent statements scattered around the opinion that seem to be shields against assumed criticism rather than actual beliefs of the judge (e.g., the hypothesis that would allow judicial intervention on humorous speech, apparently applicable to the concrete case but not analyzed as such).
Nekatschalow’s opinion, on the other hand, is way shorter and seemed to be prepared more as a counterpoint to Mazloum’s proposition than an opinion that could persuade his peers and prevail.
Both, in short, preferred to face the case with their own understanding of the legislation and of the social sensitivities around humorous speech, whereas, for the record, there is respectable scholarship defending both the full applicability of the legal provisions, virtually making racist jokes unlawful under Brazilian legislation (e.g.., A. Nicolitt, André & A. P. Barroso, Crimes de racismo: Breve análise da Lei 14.532/2023, Revista Brasileira de Ciências Criminais, 208, pp. 23–61, 2025), and pondering that the new law has brought subjectivity to what should be a more objective analysis (such as D. Tangerino, Notas à reforma dos crimes de racismo (Lei 14.532/23), Revista Brasileira de Ciências Criminais, 208, p. 63-73, 2025).
It is too bad that the case has not yet been determined with the depth that its significance requires, as it is likely to set the case law for how an important piece of legislation should be interpreted in a country still struggling with a legacy of social inequality and the open scars of slavery.