Judge Alexandre de Moraes, member of the Supreme Court of Brazil. File photo.
By Brian Mier – May 14, 2024
The Republican-led US House Judiciary Committee released a report on April 17 titled “The Attack on Free Speech Abroad and the Biden Administration’s Silence: The Case of Brazil.” The report accused the Brazilian Supreme Federal Court of censorship, based on an interpretation rooted in US law and Twitter company policy.
The GOP report criticizes the court’s investigation and series of rulings that resulted in the deplatforming of 150 Twitter accounts. Many of these accounts belonged to individuals under investigation by Brazil’s Federal Police for their roles in a coup attempt on January 8, 2023, which tried to close Brazil’s National Congress. Its ultimate goal was to shut down the court, arrest three of its judges—including Justice Alexandre de Moraes—and install a military dictatorship.
The report came on the heels of a campaign promoted by Twitter owner Elon Musk. The ultra-billionaire had started to attack Brazil’s highest court days after Michael Shellenberger, a former PR executive who now calls himself an investigative journalist, posted a thread titled “Twitter Files—Brazil.” Shellenberger claimed to show that de Moraes—a conservative appointed by right-wing President Michel Temer—had pressed criminal charges against Twitter (rebranded as X) for refusing to turn over user data on political enemies. Musk viralized the “Twitter Files,” along with a Portuguese-language video in which Shellenberger called de Moraes a totalitarian tyrant.
Days later, Brazil’s former secretary of digital rights, Estela Aranha, unmasked the fraud. Confronting Shellenberger publicly on Twitter, she demonstrated that he had cut and pasted together paragraphs selected from the company’s internal communications on a variety of different issues to create a false narrative (FAIR.org, 4/18/24). The paragraph about criminal charges referred not to de Moraes, but to GAECO, the Sao Paulo district attorney’s office’s organized crime unit, which pressed charges after Twitter refused to turn over user data on a leader of Brazil’s largest cocaine-trafficking organization. Shellenberger apologized in Portuguese, admitting he had no proof that de Moraes had pressed charges against Twitter, then left Brazil.
The eight-page congressional report parroted Musk and Shellenberger’s criticism of the deplatforming of Twitter users, and claimed that ordering the removal of specific posts constitutes “censorship.” Surprisingly, for a report authored by a committee chaired by inner-circle Trump ally Jim Jordan, the most cited journalistic source for the document is the New York Times.
‘Going too far?’
A Times article (9/26/22) published five days before Brazil’s 2022 first-round presidential election, headlined “To Defend Democracy, Is Brazil’s Top Court Going Too Far?,” was cited seven times in the Judiciary Committee report. Its central argument is that, “emboldened by new powers the court granted itself in 2019,” Brazil’s Supreme Federal Court—especially de Moraes, who oversaw the Superior Election Court during the 2022 elections—had taken a “repressive turn.”
To fit its narrative, the Times cherry-picked excerpts from the March 14, 2019, decree issued by then–Chief Justice José Dias Toffoli:
The court would investigate “fake news”—Mr. Toffoli used the term in English—that attacked “the honorability” of the court and its justices.
Compare this to the actual paragraph:
Considering the existence of fraudulent news (“fake news”), slanderous accusations, threats and misdeeds cloaked in animus calumniandi [attempt to defame], defamandi [defamation] and injuriandi [injury], which undermine the honor and security of the Federal Supreme Court, its members and their families, it is resolved, in accordance with Article 43 and our internal rules, to start an inquiry to investigate the facts and corresponding offenses in all their dimensions.
Whereas a casual reader of the Times piece, making an association with Donald Trump’s bad-faith use of the term “fake news,” might assume that the decree extends power to the court to repress any speech that offends them personally, the language in the decree, which was upheld as constitutional in a 10-1 vote by the Supreme Federal Court in 2020, clearly links the investigation to four crimes under Brazilian law: fraud, attempt to defame, defamation and injury.
Toffoli’s decree spurred healthy debate among legal scholars, but the powerful Order of Brazilian Lawyers (OAB), which has seven times higher membership than the American Bar Association and manages Brazil’s equivalent of the bar exam, immediately endorsed the investigation. This fact was left out of the Times article, which skewed the debate to suit its narrative by providing one positive, one neutral and five negative quotes from Brazilian “experts” on the investigation.
A different system
Brazil and the United States have very different legal systems. The United States Marshals are the enforcement arm of the US federal court system, with one of its primary functions being to assess, investigate and mitigate threats against judges.
With expanded powers that enable it to arrest fugitives, US Marshals averaged 90,000 arrests a year between 2015 and 2020, killing 124 people in the process. This included innocent bystanders like a teenage girl killed by US Marshal Michael Pezzelle in Phoenix, Arizona, when he opened fire on a vehicle she was sitting in—which, despite coverage in USA Today (2/11/21), was not deemed a worthy enough example of judicial overreach to be covered in the Times.
The US Supreme Court has its own police force, with 189 officers, which operates intelligence and investigation units. Although its power to initiate investigations is more limited than the Brazilian Supreme Court, it recently conducted an investigation on the leak of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization.
Brazil does not have a judiciary police force. According to the 1988 Constitution, the attributes of judiciary police enforcement are granted to the (notoriously corrupt) state civil police; in the case of the Supreme Federal Court, these powers have been delegated to the federal police. It was the failure of this system to adequately respond to the rise of threats against Supreme and Superior Electoral Court ministers that led Chief Justice Toffoli to issue his decree delegating power to de Moraes to start and oversee federal police investigations of such threats.
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Threats against judges
At the time Toffoli issued his decree, in 2019, there had been a surge in threats against judges, especially those in the Supreme and Superior Electoral courts, which had initiated an election fraud investigation against the Jair Bolsonaro presidential campaign in October 2018. This increase in threats against the judiciary parallels a similar scenario with the rise of Trumpism in the United States, where the annual number of violent threats against judges rose from 926 in 2015 to 4,511 in 2021.
One example of a menacing statement that was widely shared on social media was made by Bolsonaro’s son, congressmember Eduardo Bolsonaro, eight days before the second round of the 2018 presidential elections. Investigative journalist Patricia Campos Mello had published an article in the Folha de Sao Paulo newspaper (10/18/18) exposing a group of millionaires—including some, like Luciano Hang, who are portrayed as harmless business executives in the Times article—for spending R$12 million to spread slanderous disinformation against the elder Bolsonaro’s electoral rival, Fernando Haddad, on Meta‘s WhatsApp platform. This campaign included targeting evangelical voters with doctored photos falsely claiming that, as mayor, Haddad had distributed baby bottles with penis-shaped nipples to students in Sao Paulo’s public pre-school system.
Three days later, in a video seen by hundreds of thousands of people, Eduardo Bolsonaro said:
To shut down the Supreme Court, we don’t even have to send a single jeep or soldier. íIf you capture a Supreme Court justice, do you think anyone will protest in their defense?
Across Brazil, hundreds of Bolsonaro supporters upped the ante, including retired army Col. Carlos Alves. In a widely circulated YouTube video (10/22/18), Alves threatened to shut down the Supreme Federal Court, and slandered Superior Electoral Court president Rosa Weber. This triggered requests by the Supreme Court and the commander of the army to open a new investigation against Alves, which was conducted by the Federal Police.
Toffoli’s decree was issued in response to the growing threats and the inability of the justice system to respond efficiently to them. The immediate result of his designation of de Moraes as head of the investigation was that he became the target of a hate campaign by Bolsonaro’s internationally connected support network, which then worked to build a legal argument that, as a victim of their threats, he was unqualified to investigate his aggressors. Meanwhile, the attacks against the Supreme Court and Electoral Court intensified during a four-year build-up that culminated in the 2023 coup attempt.
As the idea of destroying the Supreme Federal Court and installing a dictatorship became the primary rallying cry of the Bolsonarista far right, de Moraes ordered the arrest of congressmember Daniel Silveira, who, as Rio de Janeiro city councilor, once submitted a bill that would have enabled military police to harvest the organs of their shooting victims.
The New York Times article framed his imprisonment and subsequent eight-year, nine-month sentence as the result of a single live stream with a few vague threats. In fact, it was the result of an investigation by the attorney general’s office into Silveira’s four years of systematically inciting the violent abolition of the democratic rule of law. Silviera had abused his authority as an elected official to repeatedly call on the army to shut down the Supreme Federal Court, while disobeying court orders to cease and desist.
A script for a coup
It may be news to the Republicans who cited the Times in their report on “censorship,” but Brazil’s legal system has all kinds of significant differences from that of the US. It may not be standard practice in Brazil for an investigation judge to rule on the results of his own investigation, but the Times didn’t think it was significant enough to dwell on as a sign of judicial overreach in its 37 articles on Operation Car Wash when Judge Sergio Moro did it during his now-reversed witch hunt against Lula.
Furthermore, Brazil’s speech laws, closer to France or Germany’s than to those in the US, are based on a harmony of rights, meaning that no essential right can be used to infringe on another essential right. This means, for example, that the kind of advocacy for pedophilia promoted by an organization like NAMBLA, viewed as protected free speech by the ACLU, would be illegal in Brazil, due to its infringement on the right to health and happiness for children, as laid out in its Statute of the Child and Adolescent. It means that, like in Germany, advocacy for Nazism is a crime, as it is deemed to infringe on the human rights of the groups that have been historic victims of Nazism.
And it means that in Brazil’s short election seasons, certain types of speech are prohibited if they infringe on the essential right of fair and balanced elections. In practical terms, this means that negative campaign ads and spreading disinformation about other candidates is illegal, and in every election season, the Superior Electoral Court orders candidates to take hundreds of ads off the air for violating these principles, as it did to both Jair Bolsonaro and Lula in the 2022 election season (FAIR.org, 4/18/24).
During the three months following the Times article, two Bolsonaro supporters were arrested trying to detonate a bomb in Brasilia’s airport, and another group of supporters staged a violent attack on Brazil’s Federal Police headquarters. Thousands of Bolsonaro supporters camped out in front of military barracks demanding that they take action and shut down the Federal Supreme Court.
On January 8, following the details of a written plan for a coup d’etat seized in Bolsonaro’s Justice Minister Anderson Torres’ house, a crowd invaded the National Congress and the Supreme Federal Court building with the goal of pressuring Lula to declare a state of siege, which would have turned national security over to the armed forces. Meanwhile, high-tension electrical towers were sabotaged across the country.
News designed for ‘bad actors’
The New York Times has a long tradition of promoting fascists, while crying censorship whenever a leftist government uses its own laws to protect itself against coups, as it has done with Nicaragua, Ecuador, Venezuela, Bolivia, Argentina and Cuba.
This also isn’t the first time the GOP has used Times reporting to advance a right-wing agenda. Lawmakers across the country have repeatedly cited Times articles to justify restricting and even criminalizing gender-affirming health care for trans youth (GLAAD, 4/19/23).
When confronted with the Times‘ role in empowering—in GLAAD’s words—”the already powerful to do even more harm,” publisher A.G. Sulzberger (CJR, 5/15/23) dismissed such concerns, scoffing at critics who think “news organizations should not publish information that bad actors might misuse.” “In general,” he responded,
independent reporters and editors should ask, “Is it true? Is it important?” If the answer to both questions is yes, journalists should be profoundly skeptical of any argument that favors censoring or skewing what they’ve learned based on a subjective view about whether it may yield a damaging outcome.
In other words, Sulzberger claims that the Times is just reporting the facts; it’s not their fault if “bad actors” are misusing those facts. It’s the old “objectivity” argument, repackaged in a time when even many within the news industry are acknowledging that objectivity is impossible. But the trouble is, as FAIR showed with the paper’s trans coverage, Times reporting fails Sulzerberger’s own “true” and “important” test (FAIR.org, 5/19/23).
Likewise, in the case of the paper’s Brazil/Twitter coverage, the problem is not that the Times‘ good reporting is being misused by bad actors; it’s the paper’s bad reporting that’s directly feeding yet another right-wing smear campaign.
Looking back at the timing of the article, five days before Brazil’s first-round presidential election, the lack of context and the imbalanced skewing of the Brazilian legal community’s robust debate around Toffoli’s decree in favor of its detractors, it’s no wonder that it’s now being cited by Republican officials.
After a second congressional subcommittee hearing on “censorship” in Brazil, held on May 7, it seems clear Republicans are preparing to use “Biden’s support for censorship in Brazil” as a bullet point for Trump in the upcoming presidential elections. Keep this in mind as the New York Times continues its coverage on “freedom of speech” in Brazil.
(FAIR)
Brian Mier
Brian Mier is a writer, geographer and development professional who has lived in Brazil for 22 years. Former directorate member of the Fórum Nacional de Reforma Urbana (National Urban Reform Forum). Has lived in São Luis, Recife, Salvador, Rio de Janeiro and São Paulo. Author of “Os Megaeventos Esportivos na Cidade do Rio de Janeiro e o Direito á Cidade” (CEPR/Ford: Rio. 2016). Editor of "Voices of the Brazilian Left" (Sumare:Liverpool:2018). Irregular correspondent for the Chicago radio show This is Hell.
