X vs. Moraes
“What starts wrong, ends wrong.” This popular Brazilian saying can describe very well the current state of the ongoing battle between freedom of speech and judicial activism in Brazil.
X, formerly Twitter, left Brazil on August 17th, and on September 3rd the social media platform was banned in the country from the Supreme Court bench — a disheartening indication of the future of Brazilian civil liberties.
Brazil’s current crackdown on free speech began in 2019 when an article in Crusoé (think Reason Magazine for Brazil) was censored. The article described ties between a Supreme Court Justice, Dias Toffoli, and the internationally known "car-wash operation" that led to the imprisonment of current President Lula da Silva in 2018.
To avoid the appearance of a conflict, Justice Dias Toffoli delegated the investigation to Justice Alexandre de Moraes, who still leads it today. Intentionally or not, Toffoli chose the most authoritarian Justice of the Supreme Court since Brazil emerged from military dictatorship in 1985. This "operation," now known as "fake news operation," has expanded far beyond its original purpose.
Justice Moraes ordered the removal of these reports from Crusoé, accusing them of publishing false and defamatory content. This act of censorship was widely condemned by legal experts, press freedom organizations and even fellow Supreme Court members, including Justice Celso de Mello. Under pressure, Moraes revoked his decision just days later. However, this incident marked a turning point in Brazil’s wavering commitment to free expression and a free press.
The unilateral actions of Justice Moraes as head of the investigation escalated to include the suspension of Ibaneis Rocha, the Governor of the Federal District, from his official duties. For context, that would be like Justice Clarence Thomas suspending D.C. Mayor Muriel Bowser. This 90-day suspension was executed after the Brazilian January 8th riot (similar to January 6th in the U.S.) without providing an opportunity for the Governor to respond or even involving the Public Ministry — a significant overreach in judicial power widely viewed as beyond the Court’s authority.
The Brazilian judiciary’s relationship with X had been deteriorating long before these recent developments. Under the oversight of Justice Moraes, numerous legal demands aimed at controlling online discourse were imposed. These included orders to block individual user accounts accused of spreading so-called ‘misinformation;’ in reality, the orders were extraordinary acts of censorship meant to target and suppress politically dissenting speech. Such judicial decisions, many of which remained confidential, forced the platform into an increasingly difficult position given its renewed commitment to “free speech absolutism” under Elon Musk’s ownership.
X is not the first platform to face legal pressure in Brazil. Telegram was shut down in the country on May 10, 2023, in order to curtail the spread of "fake news" on the encrypted messaging app. Justice Moraes had ordered Telegram to delete messages containing supposed "misinformation" about a bill proposed by the Brazilian national congress that would regulate social media at a federal level. At the time, failure to comply with these orders would result in the app's suspension in Brazil for 72 hours. For every hour the app remained accessible in noncompliance with the order it would face a fine of approximately $90,000.
The immediate cause of X's exit in August was a secret order from Justice Moraes, threatening legal consequences unless the platform agreed to censor certain user accounts. This drastic measure came after a series of escalating demands that the company found incompatible with its principles of free speech. X's decision to leave was a direct response to what they viewed as "censorship demands" by the judiciary.
Initially, Justice Moraes ordered that all VPN apps should be removed from the Apple Store and Google Play Store. However, recognizing the potential overreach and the practical difficulties such a ban would cause, Justice Moraes abandoned this part of his order on August 30th. He acknowledged the need to avoid "unnecessary and reversible troubles to third parties," highlighting the complications that arise when legal decisions collide with technological realities. Despite this retreat, he maintained a daily fine of almost $9,000 USD for anyone using "technological subterfuges" like VPNs to access X, indicating a continued tough stance on internet use.
X's exit from Brazil is not just a local issue but a global concern, reflecting broader trends affecting internet freedom worldwide and especially in the Latin American region. Nicolas Maduro — the dictator of Venezuela — celebrated and congratulated Justice Moraes during an Instagram live stream on September 2, 2024. It’s important to mention that X was also suspended for 10 days in Venezuela, and Maduro continues to threaten WhatsApp.
Currently, X operates in almost every country except a few with authoritarian regimes — China, Iran, North Korea, Turkmenistan, Myanmar, Russia, Belarus, Pakistan and Venezuela. This context highlights the alarming nature of X's departure from Brazil, suggesting a shift towards practices common in more repressive governments. The move sets a dangerous precedent, potentially encouraging other nations to leverage similar judicial pressures against free speech platforms.
Against this backdrop, on Brazil’s Independence Day, September 7th, thousands of citizens took to the streets to demand the impeachment of Justice Moraes, many holding signs that read #ForaMoraes, or "out with Moraes." While this massive protest filled the streets of São Paulo, the official Independence Day celebration in Brasília, attended by President Lula, was notably empty. This contrast underscored the escalating discontent with judicial overreach in the country, and the growing divide between the interests of the population and those of its political class.
In a surprising turn of events, X has begun complying with Justice Moraes' orders, including suspending certain flagged accounts and paying over USD 3.37 million (18 million BRL) in fines. The platform also re-hired its legal representation, though it still faces challenges in finding a local representative willing to take the position given the risk of imprisonment. While these steps signal a certain level of compliance, Musk continues to send mixed signals. In one of his recent posts on X, he said: 'Any sufficiently advanced magic is indistinguishable from technology,' after using tactics to make X available in Brazil for a few moments.
X's departure from Brazil was a powerful reminder that freedom of speech is not an eternal right but a fragile concept, vulnerable to rogue legislators who feel their authority threatened. It should serve as an example for democracies around the world that clear legal frameworks are needed to protect civil liberties and constrain this style of judicial activism that leads inevitably to censorship.
