Experts Praise X Policies Behind Moraes’s Ban Ruling in Brazil

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New revelations from leaked messages within Supreme Court Justice Alexandre de Moraes’s team, published by Folha de S.Paulo on Wednesday (4th), show that the judge and his aides were frustrated with the content moderation policies on X, introduced by Elon Musk after his 2022 acquisition of the platform.

The conversations, which took place in March 2023—outside the election period—reportedly show Moraes instructing his aides to “take a tougher stance” with the platform’s executives after a meeting where X explained its criteria for removing content without a court order.

At the time, Brazil’s Superior Electoral Court (TSE) asked X to take down a post where a user, commenting on the release of prisoners from the January 8 attacks, accused Moraes and President Luiz Inácio Lula da Silva of crimes against humanity, including illegal arrests and torture. Moraes’s aides at the TSE also requested that X review similar posts for removal based on the court’s guidance.

In messages seen by Folha, a staff member from the TSE’s Special Unit for Fighting Disinformation explained to Judge Marco Antônio Vargas why X would not remove that particular post. He noted that since the election period had passed, content moderation was now more focused on security than truth.

“To put it simply, a lie disconnected from any real danger is less likely to be moderated. Moderation only occurs when there is violent speech, hate speech, or a more tangible threat of harm (like inciting destruction). ‘Risk to democracy,’ being intangible, doesn’t fit into that category,” wrote Frederico Alvim, a staffer at the TSE, to Judge Marco Antônio Vargas, according to Folha de S.Paulo.

He added that X’s moderation decisions were driven by safety, not honor, and that combating disinformation was largely left to users through a feature called “Community Notes,” allowing users to flag misleading posts and explain why.

As a result, according to Folha, Moraes decided to take a tougher stance. “So let’s get tough with them. Prepare reports on these cases and send them to the fake news inquiry. I’ll order them to remove it under penalty of fines,” Moraes reportedly said.

Since 2022, Moraes has advocated for stricter regulation of social media by the government, pushing platforms to remove posts without a court order if they have the potential to incite protests against the judiciary. This pressure increased after the January 8 riots and has gained support from the Lula administration under the banner of protecting democracy.

Efforts to pass a law enforcing stricter social media regulation have stalled in Congress. As a result, Moraes has imposed heavy fines on companies that fail to comply with orders to remove content deemed “anti-democratic” or “hateful.”

Lawyers Praise Musk’s Moderation Policies on X

Two prominent defenders of free speech in Brazil, interviewed for the article, praised Musk’s approach to content moderation on X. The policy, implemented by the company under its own terms of use, does not require a court order to remove harmful content.

Court orders can be presented to the platform in cases where specific posts are deemed illegal by a court, in accordance with Brazil’s Marco Civil da Internet (a legal framework governing internet use and digital rights in the country).

Since taking over X, Musk has resisted Moraes’s orders to remove entire user profiles—rather than specific posts—which could constitute illegal prior restraint by preventing users from posting lawful content in the future.

X’s moderation policy, which prioritizes spontaneous removal of posts inciting violence without a court order, aligns with U.S. standards on free speech, which typically allow restrictions only in cases of real and imminent danger.

Attorney André Marsiglia stated that the messages suggest X was seeking concrete evidence of illegal content. “If there was a clear and undeniable illegal act, it would be removed. It seems to align with what our laws require: that the truth and illegality be explicitly demonstrated through a judicial process, not subjectively,” he said.

“What X calls security refers to proving actual harm caused by a message and the intent to cause offense. The courts seemed to want a more subjective approach without a judicial process, based on a request or alert. In fact, Musk wasn’t breaking the law,” Marsiglia explained.

Gabriel Coimbra, a member of the Free Speech Committee of Brazil’s Bar Association (OAB), noted that X’s content moderation policy “is far more professional and consistent with constitutional freedoms.” He added that it avoids being influenced by the interests of the powerful or political narratives.

“These are more objective, transparent standards, immune to political censorship. X’s moderation policy is much more aligned with free speech and press freedom, decided by a collective body, unlike Moraes’s unilateral approach in Brazil. Freedom of expression allows for exaggeration, lies, distortions, and even hate speech, but not illegal acts like violence,” he said.

“X’s policy isn’t perfect, but it’s currently the closest to a fair and objective standard of control: violence and racism are real threats to society, and are unanimously condemned,” Coimbra concluded.