Defying Moraes Was Musk’s Only Choice to Avoid Censorship or Prison for His Representative

Last week, Elon Musk, the owner of X (formerly Twitter), faced three possible courses of action in response to an order from Brazilian Supreme Court Justice Alexandre de Moraes, who threatened — and ultimately carried out — the suspension of the platform in Brazil:

1. Appoint a new representative for X in Brazil and comply with the censorship requests, which would mean going against both the principles of X and Brazilian law, which prohibits prior restraint;
2. Appoint a representative and refuse to follow the censorship orders, which would put the representative at high risk of imprisonment under Moraes's ruling;
3. Disobey the order altogether.

Musk chose the third option, resulting in the suspension of X in Brazil. This decision sparked reactions from left-leaning politicians, opinion leaders, and legal experts who supported the platform’s ban, arguing that failing to comply with a judicial order constitutes a crime.

"This guy [Musk] needs to accept the rules of this country. If the Supreme Court makes a decision, he has to comply," said President Lula. Monica Bergamo, one of Brazil's most well-known columnists, stated, "Disobeying a judge's order is a crime in our country.”

However, the Brazilian Supreme Court has long-standing precedents establishing that disobeying manifestly illegal orders is not a crime.

“There is a legal theory regarding noncompliance with unlawful decisions, grounded in the Supreme Court's own precedents. Justice Alexandre de Moraes's rulings violate both the Constitution and Brazilian law. And that’s not just my view; it’s also shared by former Supreme Court Justice Maurício Corrêa," said Rodrigo Marinho, a constitutional law expert from the University of Fortaleza.

In a 1996 habeas corpus ruling, Justice Corrêa stated, "No one is obligated to obey illegal orders, even those issued by judicial authorities. Moreover, it is a citizen's duty to oppose illegal orders; otherwise, we undermine the rule of law."

Freedom of expression lawyer André Marsiglia pointed out that, under Article 774 of Brazil’s Code of Civil Procedure, even in normal circumstances of disobeying a legitimate court order, the punishment should be limited to a fine. "Disobeying an order and not having a representative is not a crime, nor does it lead to imprisonment or the shutdown of a platform," Marsiglia wrote on X. He added that, instead of suspending the platform, Brazilian authorities could have fined Musk’s other companies, as they had done with Starlink, though he noted that would still be improper.

Legal consultant Katia Magalhães argued that X and Musk were facing a situation akin to a "factum principis", a legal concept used to describe cases where government actions create extraordinary conditions that make fulfilling a legal obligation impossible. In this case, the legal requirement to appoint a local representative became unfeasible, as any representative Musk appointed would face imprisonment for failing to comply with Moraes's censorship orders.