Elon Musk Battles For Freedom of Speech Against Censor Alexandre de Moraes in Brazil

by | Apr 19, 2024

Brazil is facing its greatest struggle for freedom of speech since the end of the military regime that ran the country from 1964-85. For the first time since the adoption of the 1988 Constitution, freedom of speech has been effectively limited without due process, and contrary to the Constitution, the criminal code, and the Marco Civil.  

Elon Musk is publicly defending freedom of speech in Brazil and claiming that orders issued by Alexandre de Moraes, a Justice of STF (Brazil’s Supreme Court), have censored certain people and opinions. Musk says these orders are illegal, and that they compel his platform X (former Twitter) to shut down its domestic operations and be banned from the country. Musk is also now under criminal investigation as ordered by the same Alexandre de Moraes.

George Orwell himself could not think of a better idea to update his novel 1984 for the 21st century. Perhaps his literary qualities would help him to come up with a more subtle story, one that would not obviously prove Musk’s point so quickly.

What may have been a shock to many in the United States and everywhere Musk’s tweets have reached, does not actually surprise most Brazilians, at least those who are following the rise of STF — under Alexandre de Moraes’ control — to wield unlimited power and become the most powerful branch of Brazil’s government.

Elon Musk’s involvement began after “Twitter Files Brazil” were revealed by Michael Shellenberger, American journalist, and two Brazilian colleagues, David Ágape and Eli Vieira, on Wednesday, April 3.

Shellenberger had just arrived in São Paulo for a couple of interviews before heading to Porto Alegre for the Forum da Liberdade, where he spoke before an audience of more than 5,000, mostly young students.  Internal communications among X/Twitter employees in Brazil showed that the company had received orders to ban users, delete specific content, and provide personal information of users, in what Rafael Batista, senior legal counsel of X/Twitter in Brazil, considered a violation of both the Brazilian Constitution and Marco Civil da Internet, the specific Act of Congress that regulates the internet.

In the US, according to Shellenberger, the FBI, Homeland Security, and “other agencies” (meaning the CIA) interfered with Twitter’s application of its own Terms of Services, to suppress content and shadow ban users. This was aimed initially at terrorism and pedophilia but ended up being used to censor opinions on COVID-19 and related responses, the US elections, the invasion of Congress on January 6, and other political opinions.

Unlike what happened in the US, the Brazilian version of Twitter files shows interference not from the Executive branch, but by the STF. The Brazilian Constitution upholds freedom of speech, and legislation protects the privacy of social media users, but despite that Batista claims that he (Twitter Brazil), was ordered to ban people without telling them that there was a court order. Yes, Alexandre de Moraes was banning people from social media without even letting them know they were under investigation.

It may seem odd that a Justice of the Supreme Court is investigating someone, as Alexandre is now investigating Elon Musk, but this is exactly what is going on. Moraes is the head investigations on what he calls “digital militia” attempting a “serious attack on the democratic rule of law.” He started this investigation based on internal Court Rules stating that the Court may investigate crimes that take place on its premises — a stretch almost beyond belief. Besides the “digital militia” investigation that now includes Musk, de Moraes also investigates “fake news.” In the context of both investigations, de Moraes ordered the arrest of more than 10 persons, including Members of Congress, journalists and supporters of ex-president Jair Bolsonaro.

Twitter files Brazil exposed this to the country and the world. Brazilian newspapers and legacy media managed to completely ignore the facts. Not a single word about Twitter Files Brazil was written, printed, or posted by the big media.

Enter Elon Musk who, with a couple of tweets, changes the game. First, he replied to an old de Moraes’ tweet asking, “Why are you demanding so much censorship in Brazil?”

Then, on April 6, he wrote: “We are lifting all restrictions. This judge has applied massive fines, threatened to arrest our employees and cut off access to X in Brazil”.

This forced the media to cover Twitter Files, and to uncover what had been happening in the country for more than two years now. A significant part of the media jumped to the conclusion that Musk was about to refuse to comply with a legitimate court order. Good journalism would require asking: are these orders legal? Is due process being exercised? Have the users had the chance to appeal? Did they face their accuser? Can they present their defense? Is their conduct a crime in Brazil? Is the penalty of exclusion from social media legal? In other words, is Elon Musk refusing to comply with truly legal, constitutional, legitimate decisions, or is he showing the absolute abuse committed by de Moraes?

They would reach very disturbing answers.

Brazil is facing its greatest struggle for freedom of speech since the end of the military regime that ran the country from 1964-85. For the first time since the adoption of the 1988 Constitution, freedom of speech has been effectively limited without due process, and contrary to the Constitution, the criminal code, and the Marco Civil.

Members of Congress have been jailed.

Journalists like Rodrigo Constantino and Allan dos Santos are living in the US. Constantino had his Brazilian passport seized and cannot enter his home country. Dos Santos had an arrest order issued against him, and the US denied his extradition (no such thing as opinion crimes in America, making extradition illegal). Many others are simply banned from social media (including, again, politicians and journalists).

These orders were mostly issued by de Moraes. Brazilian law says that only a handful of people have the privilege of being judged before the Supreme Court as a first-stance court: the President, members of Congress, and few others. Despite that, de Moraes considered the journalists and people he investigated to be cooperating with Members of Congress to end democracy and the Rule of Law in Brazil — therefore, the whole “militia” should be judged by, yes, Alexandre de Moraes.

I interviewed Michael Shallenberger in São Paulo, hours after his release of Twitter Files Brazil. I asked him what content was being censored by these illegal court orders. Basically, opinions on COVID-19, the fairness of the Brazilian election, the invasion of Brazilian Congress (January 8, 2022), among others. De Moraes had asked for the list of people who used the hashtag “VotoAuditávelImpresso” (printed, auditable vote), a campaign for changing the way Brazilians vote — currently, it a completely digital process, where data is sent to the Superior Electoral Court (TSE, Tribunal Superior Eleitoral) for tabulation and proclamation of the results.

TSE is the federal body that organizes elections all over the country and is part of the Judiciary. It also rules all matters related to elections. Its President? Alexandre de Moraes.

During 2022 presidential elections, TSE ordered social media to delete content about presidential candidate Lula da Silva’s association with Ortega, the Nicaraguan dictator. Also, the TSE ordered Jovem Pan, a TV channel, not to refer to Lula as “thief,” “corrupt,” “ex-con,” or “ex-guilty1”. The TV channel accused de Moraes of censorship.

TSE also censored in 2022 an episode of “Parallel Investigation,” a series aired by the platform Brasil Paralelo, about the attempted assassination of Jair Bolsonaro in 2018. The Court, even before knowing the content of the episode, claimed “it could interfere with the result of the elections.” TSE ruled the video could not be made public until after the elections.

Of course, these decisions radicalized criticism of the Court and of the electoral system. TSE and STF, under de Moraes, have contributed to increase the growing polarization of political opinions — the very essence of attacks on democracy, institutions, and the rule of law, or precisely how de Moraes categorizes all critics of his decisions. He and his fellow Justices are hunting ghosts they helped to create.

In the ruling of Donald Trump’s petition against his exclusion from the election in Colorado, Justice Amy Coney Barrett of the Supreme Court of the United States writes on her vote:

In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.

De Moraes is doing the very opposite. His double-down on Elon Musk’s challenge, adding him to the investigation on “digital militias” as a person of interest, and threatening the very existence of X/Twitter in Brazil, proves that Musk hit the spot.

We know the day Fidel Castro entered Havana and started the Cuban dictatorship. We can’t precisely tell when Venezuela became a dictatorship. It was a process, with a small group of government officers gradually seizing more and more control over its people. Sometimes it’s hard to find, in the course of history, but there is such a point beyond which a democracy is no more.

In Brazil, we are approaching this point. Elon Musk’s “X” marked the spot: it is all about freedom of speech.

Made available by the American Institute for Economic Research.

Ricardo Gomez is a lawyer, and host of Magna Carta, a political commentary program on the Brasil Paralelo platform.

The views expressed above represent those of the author and do not necessarily represent the views of the editors and publishers of Capitalism Magazine. Capitalism Magazine sometimes publishes articles we disagree with because we think the article provides information, or a contrasting point of view, that may be of value to our readers.

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