By banning ‘X’, Supreme Court treats Brazil as a lawless land 

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(This is an English version of the editorial originally published by Gazeta do Povo on Friday, August 30th 2024.)

Brazilian Supreme Court Justice Alexandre de Moraes has just placed Brazil in a group that no democracy would be proud to be part of: that of the nations that have banned Twitter (X after its acquisition by billionaire Elon Musk) from their territory. Thanks to Moraes, we Brazilians now join North Korea, China, Iran, Vietnam, Russia, Türkiye and Turkmenistan, all dictatorships, or authoritarian regimes to say the least. There are even those who say Brazil is not in a very different situation from these and could not properly be called the “first democracy to ban X”. On Friday (30) afternoon, just a few hours after the end of the deadline given by Moraes for X to appoint a new legal representative in Brazil, the justice issued a monocratic order blocking the social media throughout the country.

The details of the entire dispute involving Elon Musk and Alexandre de Moraes – the disclosure of Twitter Files Brazil, the disobedience against profiles’ censorship orders, the lack of legal basis for profiles’ suspensions, the closure of the Brazilian social network’s office after the threat of arrest of its legal representative – are already widely known and have been the subject of our analysis several times. We don’t need to repeat them now. What we need is a society awakening, at last. A decision as absurd, disproportionate and authoritarian as that is not a sudden display of tyranny in the midst of democratic normality. It was only possible because – while the top echelon of the Judiciary was totally crazy with power and delusions of seeing themselves as “democracy incarnated” – opinion makers, civil society organizations and politicians proved themselves unable of clearly analyzing the framework built up in the abusive investigations, and incapable of firmly opposing a disconnected set of legal orders that have been handed down over the last five years that are incompatible with the Brazilian Constitution.

Is it true or not that, in the last five years, in the face of violations of parliamentary immunity, constitutionally guaranteed freedom of speech, the right to a fair hearing, the need to individualize conduct, and the constitutional prohibition of censorship, journalists, jurists and other personalities have limited themselves to repeating that “judicial orders are complied with”? Is it true or not that, even in the face of the threat to suspend X, the mantra continued to be repeated as a justification for what was to come? These blinders willfully placed before oneself prevented an almost entire country from realizing that the relevant principle was not that a court order is complied with, but that no one is exempt from responsibility if they commit an injustice by the order of an authority.

Moraes crossed all limits this Friday, and the moment calls for Brazilian parliamentarians to take an immediate stand. Their inaction is now unacceptable. We have been placed on the side of the world's worst dictatorships

The orders given by Moraes to the platforms were not mere contra legem orders – which could and eventually should be complied with –, but orders to carry out an injustice: handing over the heads of users, “tattling” them, betraying them, demonetizing them, all in defiance of constitutional guarantees. In such situations, disobedience is a moral obligation – an obligation that Musk has decided to follow, unlike other platforms that have submitted to that immoderation. Without wishing to compare the crimes in question, claiming that “I was just obeying” in order to escape accountability for an injustice is something that the entire democratic West has rightly rejected since Nuremberg.

We ask those journalists who until yesterday claimed that Moraes was right to suspend X: wouldn't they congratulate fellow professionals who disregarded a court order to reveal the name of a source who had provided important information under condition of anonymity? We hope so, and they would be right to do as such. Not a few journalists in the United States have accepted imprisonment for refusing to betray their sources, and they have been seen as heroes and models for generations of media workers. But when the same newspapers and journalists who would defend resistance to the violation of source confidentiality look at X's case simply and say that “court orders are complied with”, it's a sign that they haven't analyzed what's going on in depth. That newspapers accept such a barbarian thing as reasonable is a sign that society is very, very sick.

Moreover, it can’t be get unnoticed, the completely paranoid measure incompatible with democracy that accompanied the suspension of X: a total ban on the use of VPNs (software that camouflages the real location of internet users) with a fine of R$ 50,000 (about US$ 9,000) for anyone caught using these tools (which the justice calls “subterfuges”). However, these tools are essential in any regime that blocks access to information, and not for nothing they are only banned in nations ruled by dictators and autocrats. Hypocritically, the same justice who, a few days ago, rejected X's appeal against censorship of profiles on the grounds that only those censored were parties to the case, and not the network, is now ordering all Brazilians to participate in a case in which X is the party, not the citizens as a whole.

With this absurd order, in a single stroke, Moraes violates the right to information of all users, the right to free enterprise of the companies that create and sell VPNs, and the freedom of the press, since media workers are unable to learn directly about what foreign personalities say on X – as journalist Glenn Greenwald rightly pointed out – and must depend on some foreign media outlet to report the statements. And most importantly, Moraes has thrown away yet another constitutional guarantee, that “no one shall be compelled to do or refrain from doing anything except by virtue of law” – and there is no law prohibiting the use of VPNs in Brazil, obviously. The backtracking that took place hours later was minimal, limited only to allowing the download of VPNs from app stores; the ban on the use of VPNs and the fine, which are the authoritarian heart of this part of the decision, were maintained.

We don't approve of Elon Musk's rudeness, but in a normal society, his manifestations don't constitute a crime. To accept Moraes’ allegations that the owner of X has committed “crimes against democracy” is to accept what the entire West has learned to reject: sedition laws, laws that prohibit criticism of authorities when it doesn't amount to insult, laws that prohibit the free speech. Moraes crossed all limits this Friday, and the moment calls for Brazilian parliamentarians to take an immediate stand. Their inaction is now unacceptable. We have been placed on the side of the world's worst dictatorships. The people's representatives – especially those in the Senate, who have been given the task by the Constitution of curbing the excesses of the supreme court – cannot allow even one weekend to pass under this ominous aberration.

In a passage full of the bold and capital letters so dear to the justice, Moraes states that Musk behaves “as if social networks were no man's land, a true lawless land”. The supreme court justice is wrong. Today, social media are not a lawless land; present Brazil is a lawless land, in which the Constitution, the Civil Mark of Internet and procedural codes are all worthless, replaced solely and exclusively by the supreme will of Alexandre de Moraes, who demands complete obedience and subservience to his decisions. The institutional means to stop him exist; it remains to be seen whether parliamentarians – and journalists, and civil society – have a backbone or whether they will continue to bow down.