En torno a la tutela de instituciones y símbolos en el debate público

Abstract

In the last few years, there has occurred a trend towards a restrictive interpretation of the scope of freedom of expression in both ordinary and constitutional case law. One of the areas in which this was most evident is the protection of symbols and institutions, which were the objects of a series of provisions in the Criminal Code with a whole title devoted to crimes against the Constitution. The application of this type of penalties has departed from a sacralizing conception of such symbols and institutions, and from the identification of legal assets of multiple content and expansive application. This has sometimes been accompanied with the use of the figure of hate speech, but out of context and without their own interpretative criteria, so that by exaggerating their content they end up been applied to situations that in fact have nothing to do with it. A significant judicial subjectivism or emotivism is added to them when it comes to define the facts to be judged, which strongly shapes the subsequent qualification of them. This leads to the conclusion that freedom of expression is shifted and its effectiveness substantially diminished in the name of an incorrect exclusion of institutions and symbols of the possibility of being criticized.

Keywords

• nstitutions
• crimes against the constitution
• symbols
• freedom of expression