By Renan Ramalho
The increasing restrictions of the Brazilian Supreme Court (STF) on freedom of speech may widen in the coming years.
Awaiting a decision from the Justices, for example, is a lawsuit over how and to what extent a head of state can question electronic ballot boxes.
Another case discusses whether activists can compel companies to cancel the sponsorship of a practice they oppose.
Some actions can lead a parliamentarian to be held criminally responsible for criticizing gender ideology.
In another case, the Court will decide whether a media outlet can be punished for an offense said by an interviewee.
In recent years, the right to free speech and expression of thought has become a burning issue in the Court, with increasingly strict limits on what can and cannot be said, whether by ordinary people, by commentators who have gained projection on the internet, and even by parliamentarians, who, according to the Constitution, should enjoy immunity from prosecution for the right to utter “any of their opinions, words, and votes.
Until a few years ago, the STF seemed to walk in a more liberal trend.
In 2015, for example, the Justices unanimously ruled that prior permission from one personality was not necessary for another to write and publish a biography.
“In the ciranda de roda [ring-around-the-rosy] of my childhood, someone would stand in the center shouting: ‘shut up, you’re dead, I’m the one in charge of my mouth’.”
“Time taught me it was just a little song, not a reality. Trying to silence the other is a constant. But in life, I have learned that one who, by right, is not the master of what one says, cannot claim to be the master of any right,” said Justice Cármen Lúcia, the reporting Justice.
One of the most important precedents on the subject was set, in 2018, in the decision that overturned rules in the electoral law that prevented radio and television broadcasters from airing humor programs involving candidates and parties during the campaign period.
The goal previously claimed was to prevent them from being ridiculed or satirized.
“Democracy will not exist, and free political participation will not flourish where freedom of expression is curtailed, for this is an essential condition for the pluralism of ideas […] The fundamental right to freedom of expression is directed not only to protect supposedly true, admirable, or conventional opinions but also those doubtful, exaggerated, reprehensible, satirical, humorous, and not shared by the majority.”
“It should be emphasized that even erroneous statements are under the guard of this constitutional guarantee,” Alexandre de Moraes said at the time, followed by all his colleagues.
Starting in 2019, criticism of the Justices’ actions became popular on social networks, driven in good measure by former president Jair Bolsonaro (PL) – annoyed with decisions contrary to the government – and Lava Jato prosecutors – amazed by setbacks in the fight against corruption.
The STF then took a turn and started to consider certain speeches illicit on the grounds that they were offensive to the institution or allegedly incited violence against its members.
Allegedly threatening content has gradually been labeled as “attacks on democracy,” “hate speech,” or “fraudulent news.
Their transmitters are now being investigated in the “fake news”, “anti-democratic acts,” and “digital militias” inquiries, led with an iron fist by Alexandre de Moraes, under protests from the legal and political community.
The harshest decision within this new trend was the sentencing of former federal congressman Daniel Silveira (PTB-RJ) to almost nine years in prison for threatening and cursing Justices in a video spread over the internet.
In the electoral field, the Superior Electoral Court (TSE) revoked the mandate of former state congressman Fernando Francischini (PL-PR) for pointing to fraud at the polls on election day 2018.
In 2022, not only content that questioned the ballot box was banned, but also “known to be untrue” or “seriously out of context” texts about candidates, always according to the understanding of the TSE ministers.
Now, the STF may expand the restrictive hypotheses in freedom of expression with new cases pending analysis. Understand below some of the central debates to come.
CRITICISM OF THE ELECTRONIC BALLOT BOX
The right to question and criticize the electronic ballot boxes adopted in Brazil was defended by former president Jair Bolsonaro (PL) in an appeal to the STF against a R$20,000 fine imposed on him by the TSE over a meeting he held with ambassadors last year to explain his suspicions about the electronic voting system.
He argues, firstly, that the event, at the Alvorada Palace, in July 2022 – before the official start of the campaign – was an act of government, not to seek votes – proof of this is that the audience was made up of diplomats from other countries, who do not vote in Brazil.
According to the defense, the objective was only to discuss the Brazilian electoral system and give more transparency to the process.
Evidence of this would be the invitation made by Bolsonaro for the then president of the TSE, Edson Fachin, to attend the event, as well as presidents of other higher courts in Brasilia – none of whom attended.
“All the doubts about the electronic voting system were presented, directly and clearly, to the International Community, with openness to the Heads of Powers,” says the appeal brought to the STF.
For the lawyers, by fining Bolsonaro for irregular advertising, the TSE ministers committed an “error” “in taking a proposal to improve the democratic process as if it were a direct attack on participatory democracy.”
“What is perceived from the speeches of the represented Jair Messias Bolsonaro, through a serene examination made with the lenses of the necessary institutional dialogue and promotion of electoral transparency, is an invitation to improve the system and not an attack on institutions,” they claimed.
They also say that, at the event, Bolsonaro spoke as a head of state, not as a candidate for reelection.
Therefore, his freedom of speech should be respected.
“There is clear interference in the marketplace of ideas in the course of the electoral decision-making process, reaching the core of the free choice of candidacies by voters,” says the appeal.
The minister Alexandre de Moraes kept the fine of R$20,000 applied by the Electoral Court and said that Bolsonaro “exceeded the limits of performance as head of state.
As president of the TSE, it is up to Moraes to analyze whether to send the appeal to the STF.
He must assess whether Bolsonaro’s defense presents relevant constitutional issues.
If he admits the appeal, it will be sent to the STF, which will then make a new analysis to assess whether the constitutional issues have general repercussions, that is, whether they have social, political, economic, or legal relevance beyond the interests of the parties to the lawsuit.
The decision, in these cases, becomes valid for all similar cases.
PRESSURE ON ADVERTISERS WITH FALSE ACCUSATIONS
In 2015, the STF recognized the general repercussion – therefore, the constitutional relevance – of an appeal by an animal protection NGO against a court decision that prohibited it from contacting rodeo sponsors to pressure them to withdraw support from the event.
The sentence condemned the entity for moral damages and restricted its publications on the internet.
The Animal Hope Project (PEA) filed the appeal, denouncing the cruelty of using animals in the Barretos Rodeo Festival in the interior of São Paulo.
In 2007, the NGO promoted the campaign “Who sponsors and supports rodeos also tortures the animal” on its website.
The page listed companies that sponsored the event and urged visitors to send an e-mail asking them to rethink their support for the rodeo.
The organizers of the Rodeo Festival filed a lawsuit claiming that the accusations published by PEA were false.
The NGO claimed that a leather artifact, called a sedan, was tied over the penis or scrotum of the bull, compressing channels that connect the kidneys to the bladder, causing visceral ruptures, bone fractures, subcutaneous hemorrhages, and even death.
Nails, stones, pins, and hook-shaped wires would be placed in the sedges or under the saddle.
Pointed spores would cause injuries to the neck and lower abdomen and perforation of the eyeball.
Abrasive substances like pepper would be introduced into the animal’s anus.
“Blows and smashes to the head make the animal jump uncontrollably, resulting in falls, leg, neck, spinal fractures, sprains, contusions, etc. In certain rides, animals suffer a ruptured spinal cord, resulting in instant death.”
“Some suffer serious injuries to tendons and muscles. Others become paralyzed and/or have their internal organs ruptured, causing a slow and painful death,” said the NGO’s website.
The organizers of the Festa do Peão denied mistreatment and said that PEA sent sponsors images of rodeos in the United States.
“The defendant would thus be exercising its freedom of expression abusively, harming sponsorships essential to the event due to the high costs of realizing a Great Rodeo.”
“In this case, the event would constitute the most important cultural reference of the Brazilian countryside, held since 1956 and currently with international repercussion,” they said in the appeal.
In deciding the case, the STF understood that the discussion goes beyond the interests of the parties, as it discusses whether freedom of speech encompasses the pressure to boycott a particular private entity with dubious information.
This could apply, for example, to other activists who campaign against advertisers based on intimidation and embarrassment.
This is the case with the now well-known Sleeping Giants, which seeks to remove advertisements from media outlets that give space to right-wing commentators on the pretext that they would spread “fake news” and “hate speech.”
“The constitutional issue under examination consists in defining the limits of freedom of expression, even if its exercise may result in relevant commercial damage, as well as setting parameters to identify cases in which the publication should be banned and/or the reporter sentenced to pay moral damages or other legal consequences that can be legitimately imposed on him,” says the decision of the STF that admitted the appeal.
The rapporteur of the case is Justice Luís Roberto Barroso, and there is still no date for the trial of the case.
FURTHER REDUCTIONS IN PARLIAMENTARY IMMUNITY
Parliamentary immunity, guaranteed by the Constitution to protect and foster debate in Congress, especially on the most delicate and controversial issues, has already been gradually curtailed by the STF.
Traditionally, the Court’s jurisprudence said that offenses uttered outside Parliament and those unrelated to the mandate were not protected.
The Daniel Silveira case, judged in 2022, showed that immunity was removed when the target of criticism was the STF.
Later, the STF also relaxed the immunity of Senator Jorge Kajuru (PSB-GO) for mocking political opponents in his state.
He referred to one of them as a “billionaire goofball” “whose fortune nobody knows where it comes from”.
He also said that he did a “useless job” in the Senate, that he was a “tourist senator” who didn’t work and who “got into politics for business”.
When criticizing a disaffected congressman, he accused him of running a gang, calling him a “swindler,” “trash,” “crook,” “king of give-and-take,” “man of goods,” and “phony.
Initially, the charges against him were rejected because the former rapporteur of the case, Celso de Mello, now retired, considered that the statements had a connection to the senator’s mandate.
“Despite the insults and the morally contumelious and socially vulgar statements attributed to the accused, the protective incidence of material parliamentary immunity, however, is susceptible of recognition in this case, given the political antagonism situational level,” he said.
On May 2022, the Second Panel of the STF reviewed this understanding.
Following Gilmar Mendes, most ministers considered that offenses against opponents are unrelated to the public debate on political issues.
“We are facing a case of pure and simple offense, of attacks aimed at destroying reputations, of harassment, of clearly malicious insulting and defamatory offenses, which cannot be confused with the acid or blunt criticism linked to the debate on issues of public interest,” said Gilmar Mendes afterward.
Now, two new cases may lead the justices to restrict immunity further.
In the first case, they will decide whether expressions of alleged misogyny would be protected.
Congresswoman Tabata Amaral (PSB-SP) accused Congressman Eduardo Bolsonaro (PL-SP) of defaming her by suggesting that she proposed a project to grant feminine sanitary pads to poor women to benefit businessman Jorge Paulo Lemann, a partner in factories in the sector.
Dias Toffoli had already dismissed the case, but Tabata appealed.
Alexandre de Moraes voted to open criminal proceedings and was followed by the majority of the Justices, making Eduardo Bolsonaro a defendant.
Besides this case, a new one may bring new limits to immunity.
Congressman Nikolas Ferreira (PL-MG), the most voted in the country in 2022, may be held criminally responsible for alleged transphobia.
On the House rostrum, he wore a wig, said that he felt like a woman at that moment, and started criticizing the entry of transsexuals who consider themselves women into women’s sports and bathrooms.
There is still no STF decision on this case; the complaints have been distributed by lot to Justice André Mendonça.
HOLDING A MEDIA OUTLET LIABLE FOR THE STATEMENTS OF AN INTERVIEWEE
In 2020, the plenary session of the STF began to judge whether the newspaper Diário de Pernambuco could be condemned for moral damages due to offensive statements made by an interviewee against a third party.
The Court of Justice of Pernambuco held that there was no right to compensation.
“A journalistic article, as an instrument that aims only to bring information and knowledge to society, can only be considered abusive and cause injury to the person of the reported, when treating the case in a frivolous, unscrupulous or even mercenary way.”
“In the case at hand, the journalistic publication that gave rise to the action for damages only took care of bringing to public knowledge the text of an interview with a third party about a certain fact that contains historical background, not being configured as defamatory or even harmful to the person of the reported,” says the decision of the second instance.
The STF judgment already has seven votes, with three different positions.
Marco Aurélio Mello, the rapporteur and now retired, considered that there is no right of the offended person to be compensated by the newspaper for the statements of the interviewee.
“A newspaper company is not civilly liable when, without issuing an opinion, it broadcasts an interview in which it attributes, by the interviewee, an unlawful act to a particular person,” considered the Justice, who was followed by Rosa Weber.
Edson Fachin considered that it is due compensation when the vehicle reproduces the accusation “without applying protocols of the search for objective truth and without providing an opportunity for the right of reply.
Justice Cármen Lúcia followed him.
A third position was taken by Alexandre de Moraes, for whom there is a right to compensation.
“The full constitutional protection to freedom of the press is consecrated by the binomial freedom with responsibility, not allowing any kind of prior censorship, but admitting the subsequent possibility of analysis and accountability for information proven to be injurious, defamatory, slanderous, lying.”
He was followed by Dias Toffoli and Ricardo Lewandowski.
The trial stopped in August 2020.
Still to vote are Luís Roberto Barroso, Kassio Nunes Marques, Luiz Fux and Gilmar Mendes.
There is no date for resumption.
REVIEW OF THE CIVIL LANDMARK OF THE INTERNET
A similar issue is to be discussed in a trial that may change the current rule of the ‘Marco Civil da Internet’, according to which social networks and websites can only be held liable for what their users and visitors publish if the content is judged irregular by the courts and there is a failure to comply with a removal order, addressed to the companies of these platforms.
The trial on the subject was scheduled for June last year but was removed from the agenda by the president of the STF, Rosa Weber.
There is great interest among the ministers in reviewing this rule.
They want social networks to be more proactive in removing or reducing the scope of posts that represent attacks on institutions as much as possible.
The pressure for this has increased after the invasions and acts of vandalism against the headquarters of the branches of government on January 8.
The idea is that they restrict this type of content in the same way they prevent the publication of explicit violence and child pornography, for example.
The STF decision tends to direct the formulation of a new rule in Congress on the issue of the “fake news” bill.
With information from Gazeta do Povo