Social media companies are often accused of censoring conservative voices. However, the Constitution of Brazil explicitly prohibits all forms of censorship or any hindrance being placed on freedom of expression and freedom of thought.
These important freedoms appeared to be considerably restored in Brazil when the nation’s president, Jair Bolsonaro, signed a measure on Sept. 6 that temporarily prevented social media companies from removing posts based on what they arbitrarily decided to constitute “fake news.” These temporary rules required such companies to restore the post or account of a censored person unless a court order expressly decided the removal was warranted.
Under the Brazilian Constitution, the president is legally authorized to sanction, promulgate, and publish federal legislation, as well as to veto parliamentary bills in whole or in part. Moreover, the president has the power to enforce federal intervention once authorized by the Supreme Court and declare war with legislative authorization.
Although the Constitution effectively establishes the presidential system, it nonetheless includes some elements of the parliamentary system. To restore the supremacy of the legislative over the executive, presidential decrees have basically been abolished.
However, the president can still enact delegated laws and medidas provisórias (provisional measures). The former can only be created after a proper delegation of power by Congress.
Defending Free SpeechOddly enough, past presidents have sought to regularly legislate by means of these provisional measures. For example, former President Fernando H. Cardoso was “the champion of provisional measures,” enacting more than 5,000 such measures over his eight-year-long administration.
Before him, President Fernando Collor de Mello notoriously repromulgated several provisional measures after they had been rejected by Congress. In June 1992, a decision from the Supreme Court determined that repromulgation of provisional measures already rejected by Congress is constitutionally invalid.
In this context, on Sept. 7, Bolsonaro passed an important measure that temporarily prevented social media networks from removing posts based on the censorship of political, ideological, scientific, artistic, or religious expressions.
Hate Speech or Free SpeechIt is hard to conceive why any elected politician would reject such a measure that would enhance freedom of political communication. However, some members of Congress publicly opposed the measure, and six socialist political parties even filed lawsuits with the nation’s Supreme Court seeking to block it.
By sending this measure back to the president without even a preliminary debate on it—an extremely rare move—this senator was revealing a disturbing disregard not only for democratic debate but also for basic rules of parliamentary proceeding.
Although Pacheco’s decision was more than enough to entirely kill it, an hour later, Justice Rosa Weber of the Supreme Court decided to suspend that provisional measure in its entirety. She called the provisional measure an “abuse of presidential power” because, in her opinion, such measures must never address the matter of fundamental human rights.
Weber also argued that the court should interfere in a matter pertaining to Congress only in “absolutely exceptional circumstances,” but that this particular measure of the president demanded such an extraordinary response since, believe it or not, she believes that preventing social media censorship is “one of the greatest contemporary challenges to fundamental rights!"
Fight Against CensorshipCuriously, Brazilian courts have repeatedly ordered social media platforms such as Facebook and Twitter to remove “fake news” posts, especially those related to alternative COVID-19 treatments and compulsory vaccination.
It is quite astonishing that even a sensitive measure aimed at restoring free speech was so bluntly rejected. Of course, Bolsonaro was simply trying to make sure that social media platforms are not allowed to take down anything unless it can be demonstrated that these actions are effectively legal, especially around political speech.
But even if that measure was eventually rejected, at least the attempt reveals the president’s serious commitment to the protection of basic human rights. One would hope that his attempt to restore free speech in Brazil can at least serve as an inspiration and blueprint for other democratic leaders around the world, so they can elaborate rules that combat the arbitrary censorship of inconvenient truths by these powerful social media bosses.