Note to Brazil’s Judicial Crusaders: Censorship in the Name of Democracy Is Still a Threat to Democracy

David Inserra

In recent weeks, a simmering conflict over the censorial practices of the Brazilian courts erupted into open conflict. Reporting from various sources shows how government forces— most notably Supreme Court Justice and President of the Superior Electoral Court Alexandre de Moraes—investigated, secretly censored, and arrested Brazilians accused of spreading “fake news” and “anti‐​democratic” misinformation, often with little due process. Social media companies were silenced and punished if they resisted.

In response, X, formerly Twitter, declared that it would not comply with illegal and “draconian” demands before retreating under threat of punishment. While the government has defended itself by claiming it is protecting democracy, its increasingly authoritarian efforts to stamp out what it deems to be misinformation show how censorship is a threat, not an ally, of democracy.

The fuse was lit when journalist Michael Schellenberger released internal Twitter documents from the past several years that described a host of often secret demands made by Brazilian authorities. These included,

Demands by the Brazilian Congress in 2020 to release the private, direct messages of certain users, which Twitter refused to comply with for being against Brazilian law.

Police and prosecutors threatened to arrest a Twitter employee for failing to provide private Twitter user‐​data without a court order, something that other tech companies apparently provide even though it is forbidden by Brazilian law.

A court order demanding Twitter unmask the identity of anonymous Twitter accounts critical of a political figure who was currently under investigation for corruption and had millions of Brazilian reais (several hundred thousand US dollars) seized by authorities. 

A series of court orders in 2021 and 2022 that demanded Twitter reveal the identities of and demonetize accounts supportive of then‐​President Bolsonaro, including Bolsonaro himself, for content or hashtags that criticized the Superior Electoral Court and election procedures as part of a court‐​led investigation into misinformation. Twitter’s lawyers referred to these demands as “mass and indiscriminate disclosure of private users data” that are a “fishing expedition” and “a violation of privacy and other constitutional rights.” 

Other legal demands, often by Moraes himself, to suspend accounts, including those of sitting members of Congress for electoral misinformation. Twitter often pushed back, but in some cases had to comply to avoid significant fines if they did not comply within extremely short timeframes, even as short as one hour. Given that these are often secret orders, social media companies are effectively prohibited by the court from telling users why their content is being suppressed.

Other reporting by Glenn Greenwald noted that this wasn’t some fever dream of the political right in Brazil, and reporters at the New York Times questioned if the militant defense of democracy embraced by the Brazilian high courts was now posing a threat to democracy.

The Times cited an instance where a Whats App chat of eight businessmen in Brazil leaked, in which two suggested that they would prefer any outcome, even a coup, to Lula becoming president. In response, Moraes ordered the homes of all eight businessmen raided, their bank accounts frozen, various records subpoenaed, and certain social media accounts banned.

In another case, Moraes jailed without trial five individuals for their social media posts that he claimed attacked Brazilian institutions. Moraes also suspended the encrypted communication app, Telegram, for refusing to take down and provide information on prominent Bolsonaro activists for spreading misinformation.

And so, after years of growing censorship demands, Elon Musk said X would no longer abide by Moraes’s efforts to silence and expose dissent through often secret court orders and people have no timely or meaningful ability to appeal. Musk condemned the actions of Moraes and said that he would soon publish all the demands made by the judge.

Not keen on having his censorial demands ignored and exposed, Moraes struck back, expanding existing disinformation investigations into criminal ones against Musk himself for obstructing justice, being a member of a criminal organization, and incitement. Such crimes carry sentences of more than ten years. Perhaps due to this threat or concerns for the safety of X employees in Brazil, the company retreated and announced it would comply with the demands of the courts.

While the Brazilian courts already had substantial power in Brazil, many of these recent actions claimed even further powers to the unelected judiciary. Courts are often thought of as being neutral defenders of rights and due process, but Brazil’s courts—and especially Moraes—have claimed a far broader mandate, free from limits of a US First Amendment.

Attacks on the court, government institutions, or the “truth,” not with violence but with words, are taken as personal affronts to the honor of the judiciary that are then investigated, prosecuted, and judged by the courts themselves. Members of the judiciary take it upon themselves to “defend democracy,” as well as coordinate with executive branch officials to suppress the misinformation.

And this doesn’t even begin to cover the censorial actions coming from the Lula government or attempts by his allies to pass legislation that was inspired by the EU’s Digital Services Act (DSA). Such legislation would give significant power to the government to regulate tech companies and hold them liable for “fake news,” effectively unraveling Brazil’s Marco Civil, its core internet law that is comparable to Section 230 of the US Communications Act. When technology companies used their expressive rights to highlight the harms of the legislation, the government demanded the companies justify their opposition to the courts and hit Google and Telegram with threats of large hourly fines and blocking their platforms in Brazil unless they rescinded their statements opposing the bill.

To be clear, electoral violence such as that seen in the storming of Brazil’s capital buildings by supporters of Bolsonaro on January 8, 2023, like any form of violence, is to be condemned and relevant laws fully prosecuted in the courts. But the “crimes” described above by various news sources are mostly non‐​violent, non‐​threatening speech, and much of it took place before the violence of January 8.

A crusading and unaccountable court that silences, jails, and shuts down individuals, journalists, politicians, and companies for mere “misinformation,” often in secret or with little due process, is a clear threat to liberty and democracy.

Whether it is the current regimes in Turkey and Venezuela, the Russian Tsar, the USSR, and now Putin’s autocracy in Russia, Weimar and Nazi Germany, or countless other cases throughout history, the widespread suppression of speech under the guise of protecting democracy, society, or the government goes hand in hand with rising authoritarianism, government abuse, and human suffering.

While it’s unclear how this current dispute will end, let’s hope that dragging this censorship out into the sunlight will help restore free expression to Brazil.