The Fight for Free Speech in Brazil

August 5, 2022 Updated: August 6, 2022

Commentary

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.

Provisional measures, in contrast, can be enacted by the president for reasons of relevance and urgency. In such cases, the measure has to be submitted to the National Congress after promulgation and loses its effect once it is rejected, or Congress does not turn this into legislation within 60 days, subject to only one further renewal of the same measure.

Defending Free Speech

Oddly 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.

Epoch Times Photo
Brazilian President Jair Bolsonaro (top C) attends the Opening Plenary of the IX Summit of the Americas at the Los Angeles Convention Center in Los Angeles, Calif., on June 9, 2022. (Mario Tama/Getty Images)

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.

The president explained that his government was “taking the global lead in defending free speech on social networks and protecting the right of citizens to freedom of thought and expression.” The Brazilian government announced that this aimed to prevent “the removal of content that may result in any kind of censorship of political, ideological, scientific, artistic or religious order.”

At the time of the measure’s enactment, Brazil temporarily became the first in the world to make certain types of content takedowns by these social media platforms illegal under national law. The measure targeted what the president properly described as arbitrary removal of content, including accounts, profiles and posts. Under its rules, social media companies would be allowed to remove posts only if they incited such things as terrorism, violence, sexual crimes, and cyber attacks unless they obtained a court order.

Hate Speech or Free Speech

It 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.

“Freedom of speech cannot be used as a shield to protect misinformation and hate speech,” argued Rafael Carneiro, the counsel for the Brazilian Socialist Party.

On Sept. 14, the president of the Senate, Rodrigo Pacheco, announced on the floor of the Senate that he was “summarily rejecting” the pro-freedom measure and closing all proceedings about it in the Congress.

Epoch Times Photo
Brazilian President Jair Bolsonaro (C), president of the Chamber of Deputies, Arthur Lira (L), and president of the Federal Senate, Rodrigo Pacheco, offer a press conference at Planalto Palace in Brasilia, Brazil, on Feb. 3, 2021. (Sergio Lima/AFP via Getty Images)

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!”

Her ruling was given in response to a joint plea by the Brazilian Socialist Party and five other left-wing parties. Oddly enough, the federal Prosecutor General, Augusto Aras, seems to share her opinion. On Sept. 13, he submitted an opinion to the Court in favour of suspending the important measure.

Fight Against Censorship

Curiously, 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.

Since 2022, Justice Alexandre de Moraes of the Supreme Court has issued numerous orders against “fake news,” in addition to sending some of Bolsonaro’s most well-known friends and supporters to jail for “hate speech” against himself and other controversial members of the Court.

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.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education in Perth. He is also president of the Western Australian (WA) Legal Theory Association, editor-in-chief of The Western Australian Jurist, and served as a member of WA's law reform commission from 2012 to 2017. Zimmermann has authored numerous books, including "Direito Constitucional Brasileiro," "Western Legal Theory," and "Christian Foundations of the Common Law."