Inside Brazil’s X Ban: How Elon Musk Started–and Lost–a Fight With Brazil’s Judiciary

Millions of Brazilians woke up on August 31 in a country without X, after the Supreme Court ordered the national telecommunications agency to block the social media platform. This move culminated over a year of X’s refusal to follow Brazil’s telecommunications laws, particularly those requiring deplatforming of suspects in internet crime investigations. In a single day, X lost 22 million users, while alternative platform Blue Sky gained 2 million new Brazilian users in just three days. The order to ban the platform initially came from Supreme Court Minister Alexandre de Moraes, a figure vilified by the Bolsonaros and the international far right, and was ratified by a 5-0 vote in the Supreme Court’s 1st working group three days later.

The Court order came 12 days after Elon Musk closed X’s Brazilian offices to avoid liability for criminal charges against the company. With X owing R$9 million in fines, the Supreme Court froze the Brazilian assets of Musk’s company Starlink—a minor player in Brazil’s internet service provider industry, serving 250,000 clients in a country of 220 million. After the ban, a furious Musk used his own social media platform to attack one of Brazil’s 11 Supreme Court Ministers, Alexandre de Moraes, inadvertently doxing allies by publishing court documents containing their personal data.

Hailed as a victory for sovereignty while criticized by the far right as an affront to U.S. free speech principles, the X ban is the latest chapter in over a year of conflicts between Brazil and the world’s richest man

To understand how Brazil reached this point, we must go back to October 18, 2018, between the first and second rounds of Brazil’s Presidential elections. That day, investigative journalist Patricia Campos Mello published an article in Folha de São Paulo exposing a group of Brazilian businessmen for spending R$12 million to slander presidential candidate Jair Bolsonaro’s rival, Fernando Haddad, on Meta’s WhatsApp platform. Using illegally acquired personal data, the group microtargeted segments of the population with disinformation. For instance, evangelical voters were bombarded with doctored photos falsely claiming that, as mayor, Haddad distributed baby bottles with penis-shaped nipples to São Paulo pre-school students. As a result, Brazil’s Superior Electoral Court—comprising 3 Supreme Court Justices, 2 Superior Court Judges, and 2 lawyers—immediately launched an election fraud investigation.

This led to a surge in threats against judges in the Supreme and Superior Electoral Courts, extending to their families and calling for a military coup to shut down the Supreme Court. Among those making the call was Jair Bolsonaro’s son, Congressman Eduardo, who recorded a YouTube video seen by hundreds of thousands, saying, “All you need to shut down the Supreme Court is a single soldier or corporal […] Do you think anyone will protest in its defense?”

Unlike some countries, the Brazilian judiciary lacks its own police force. According to the 1988 Constitution, judiciary police duties are assigned to the regular police. The system’s failure to adequately address threats against Supreme and Superior Electoral Court judges prompted Chief Justice Dias Toffoli to issue a decree on March 14, 2019, allowing Supreme Court Minister Alexandre de Moraes to directly supervise a federal investigation into these threats.

As a result, Moraes became the main target of a hate campaign by Bolsonaro’s allies, who argued that, as a victim, he was unqualified to investigate his aggressors. Meanwhile, online threats against the judiciary intensified.

On October 29, 2021, the Superior Electoral Court announced the results of its investigation, with 5 of its 7 Justices confirming that the Bolsonaro campaign had used social media to commit election fraud in 2018. Unable to determine the fraud’s impact, the Court issued no punitive measures. However, Justice Moraes, set to take over the Presidency of the Superior Electoral Court six weeks before the 2022 presidential elections, announced that they now understood the scheme and that anyone using similar tactics in 2022 would “go to jail for attacking elections and democracy.”

Moraes, a conservative appointed to the Supreme Court by coup president Michel Temer in 2017, was already a target of Bolsonarista claims of a “communist dictatorship of the toga.” His upcoming role as head of the electoral court during the presidential election drove the Brazilian far-right into a frenzy.

As destroying the Supreme Court and installing a military dictatorship became the Bolsonarista rallying cry, de Moraes ordered several preventive arrests. These included Congressman Daniel Silveira for abusing his authority by repeatedly urging the army to shut down the Supreme Court while defying court orders. Sara Giromini, who styled herself as Sara Winter after the English fascist leader, was also arrested. She set up an Azov-inspired paramilitary camp outside Brasília, then led followers to camp out in front of the Supreme Court, launching increasingly large fireworks at the building for three days while making online threats against de Moraes and his family.

Brazil Must Choose: Sovereignty and the Multipolar World or Subordination to US Interests

Clearly inspired by U.S. events—especially since Eduardo Bolsonaro attended the January 5 Washington DC “war council” meeting before the Capitol attack—the Bolsonaros began crafting their own “stop the steal” narrative, drawing more allies from the international far-right. As this campaign grew, Glenn Greenwald joined the attacks on Moraes, using elements of U.S. law that resonated in the Global North but were irrelevant in Brazil’s legal context.

After months of claiming “communists” would steal the elections, and deploying his federal highway police to suppress voting in pro-Lula districts on election day, Bolsonaro lost and fled the country before his term ended, leaving the presidency to his Vice President, General Hamilton Mourão.

In the last 60 days before Lula took office, two Bolsonaro supporters were arrested for attempting to detonate a bomb at Brasília’s airport, while another group staged a violent attack on Brazil’s Federal Police headquarters. Thousands of Bolsonaro supporters camped outside military barracks, demanding the shutdown of the Supreme Court.

A week after the inauguration, on January 8, a crowd invaded the National Congress and Supreme Court. Their goal, according to a detailed coup plan found in Bolsonaro’s Justice Minister Anderson Torres’ house, was to pressure Lula into declaring a state of siege, which would have handed national security to the armed forces. Lula refused to fall for the trick, relying on his federal police to disperse the rioters. Meanwhile, high-tension electrical towers were sabotagednationwide.

Two months after the capitol riots, a series of school massacres terrorized the nation. Investigators uncovered dozens of neo-Nazi cells targeting children on social media, attempting to incite them to commit school massacres on April 20 in honor of Hitler’s birthday. The Justice Ministry summoned social media representatives and provided a list of accounts requesting deplatforming. X initially resisted. Etela Aranha, then Secretary of Digital Rights, recalls:

“I told them, ‘I’m talking to you because there are profiles of actual terrorists. They use the names and faces of school massacre terrorists, posting videos with songs saying, “I’m going to get you kids, you can’t outrun my gun.” There are clips showing the terrorist’s picture followed by real school massacres.’ The Twitter representative said this didn’t violate their terms. After strong pushback from the justice minister and social pressure, Twitter changed its policy and cooperated with the investigation.” It was one of the last times the company would respect a request from the Brazilian government.

Fast forward to April 3, 2024. A libertarian pundit and former PR operative named Michael Shellenberger tweeted excerpts from emails by X executives, dubbed “Twitter Files Brazil,” alleging crimes by  Alexandre de Moraes. Shellenberger claimed Moraes had pressed criminal charges against Twitter Brazil’s lawyer for refusing to turn over personal information on political enemies. Elon Musk quickly shared the tweets, which went viral and were embraced by the international far right, delighting former President Bolsonaro and his supporters.

Aranha soon exposed the flaws in this narrative. The only criminal charge against Twitter Brazil mentioned in the leaked emails came from the São Paulo district attorney’s office after the company refused to provide data on a leader of Brazil’s largest cocaine trafficking organization, the PCC. Shellenberger had cut an email section about the São Paulo investigation and mixed it with unrelated complaints about Moraes.

Pressed by Brazilian reporters, Shellenberger said: “I regret my mistake and apologize. I don’t have evidence that Moraes threatened to file criminal charges against Twitter’s Brazilian lawyer.”

Three days later, Elon Musk announced his company would stop obeying court orders in Brazil and reinstate accounts of those deplatformed, including Alan dos Santos, a fugitive hiding in the U.S. On X, Musk tweeted a series of insults against Moraes, demanding he “resign or be impeached.”

That night, Moraes ordered X to be included in an ongoing obstruction of justice investigation related to the January 8, 2023, coup attempt and announced a series of fines for refusing to comply with court orders, which have now risen to R$9 million.

Tension continued to mount and on August 7, Musk threatened to close X’s offices in Brazil, claiming court orders to remove accounts of suspects in an online election fraud investigation amounted to “censorship.” His statements were immediately praised by Bolsonaro and allies in the  international far right but had no basis in Brazil’s free speech laws.

Like other nations such as Germany and France, Brazil views the right to free speech as fundamental but not absolute—a right that must coexist with other essential rights. According to Brazil’s constitution, no fundamental right can be used to deny another. This principle allows Brazil to ban actions legal in the U.S., like inciting pedophilia or practicing Nazism. In the case of the digital militia investigation, the court ruled that the right to free expression cannot be used to undermine the right to free and fair elections, another fundamental right in Brazil.

On August 17, Musk fired 40 workers and closed X’s offices in Brazil, leaving behind debts and criminal charges but pledging to keep the platform operational. This violated Brazil’s telecommunications laws, which require any media company operating in the country to have a legal representative. The Supreme Court froze Starlink’s assets until Musk settled his debts, and Moraes warned that if X didn’t appoint a legal representative, the platform would be banned. Instead of complying, Musk escalated his attacks on Moraes and President Lula, sharing an AI-generated image of Moraes behind bars with his 195 million followers.

On August 29, Moraes gave X  24-hours to comply with Brazil’s laws. When X missed the deadline, he ordered Anatel, the national telecommunications agency, to instruct all internet service providers to block X.

With X now offline in Brazil, on Monday, September 2, the Supreme Court held a plenary session to rule on Moraes’ order, upholding it by a vote of 5-0 in the Court’s 1st working group.

Justifying his vote, Minister Flavio Dino stated that a foreign company cannot operate in national territory “and expect to impose its own view on which laws it believes are valid or should be enforced […] Economic power and the size of a bank account do not grant immunity from jurisdiction.”

The Court has made it clear that X can reopen in Brazil by complying with the nation’s laws. Whether Musk will do that is another story. On Monday, September 2, Brazilian news outlets reported that Musk sought help from the Biden administration’s U.S. Embassy in Brasília to develop a strategy to overturn the Supreme Court ruling.

(Counter Punch)