Legal Docket: Censoring public discourse

NICK EICHER, HOST: It’s Monday the 9th of September. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.

MYRNA BROWN, HOST: I’m Myrna Brown.

MARY REICHARD, HOST: And I’m Mary Reichard. Time now for Legal Docket.

Ever since Elon Musk bought Twitter and reorganized it as X, some authorities have raised concerns. They say they’re worried about certain kinds of content allowed on the platform.

Then last week, a Brazilian Supreme Court judge went one step further. He single-handedly outlawed X in Brazil.

EICHER: Justice Alexandre de Moraes said the platform failed to suspend certain accounts: those posting what he called hate speech and misinformation.

A panel of justices backed up de Moraes, supporting the ban. And Brazil’s leftist president, Lula de Silva, went on to say, “The world is not obliged to put up with Musk’s far-right ideology just because he is rich.”

BROWN: But the ban doesn’t affect Musk alone. It affects everyday users in Brazil, many who use the platform to get their news.

SAMUEL KULTZ: You try to open your X account, and it goes like, “Page not found.” It's like it doesn't exist.

Samuel Kultz is Head of Academic Affairs for a conservative organization in Sao Paulo. Before the ban, Kultz used X to follow news about his city’s upcoming election for mayor.

KULTZ: With Twitter, I felt I was much more close to that. I was much closer to knowing live what is happening during the debates, during the elections, or what people are thinking, what people are seeing and what debates are happening around the election thing, around something political.

But with access denied, and other news outlets controlled by government authorities, Kultz says the situation feels like something out of George Orwell’s 1984:

KULTZ: You know, to me it's the first time in my life where I feel like I'm living under a dystopia, under a moment where everything that you can have access to is being moderated and somebody's watching and feeding you whatever that person wants.

EICHER: Joining us now to talk about the ban on the social media platform X is Tomás Henríquez. He is director of advocacy for Latin America & the Caribbean with the International arm of the Alliance Defending Freedom.

REICHARD: Tomás, good morning!

TOMÁS HENRÍQUEZ: Good morning.

REICHARD: Well, Tomás, would you give us some background on how politics landed Brazil in this situation? I mean, it wasn’t that long ago, the country was led by a conservative, Jair Bolsanaro. This seems like a dramatic shift.

HENRÍQUEZ: Yeah, indeed. Brazil has had a long and unfortunate history having to do with corruption, and it was within this context that in 2019 there was a news report that was coming out that at least made mention of the fact that the wife of then president of the Supreme Court, minister or judge Diaz Toffoli, was mentioned in the landmark corruption investigation in Brazil, the Lava Jato Investigation. When this happened, the president of the Supreme Court issued a decision in which the Court did a very creative interpretation of its own powers, by which, in case that there is a crime committed in the seat or premises of the court, the court can initiate an inquiry, an investigation of its own.

Well, the court came to the view, or pushed the view, that whatever happens in the internet can plausibly be said to happen inside the courtroom. And so with that, they started an investigation that was not being directed by independent prosecutors, but rather by the court itself on what they called defamation or attacks on the honor of the court itself, its judges or its family members. And from that moment on, Judge Diaz Toffoli designated Minister Alexander de Moraes as the lead investigator with respect to this investigation.

So from that moment on, we see an escalation of a power grab, because there's no other way that you can put it, by the Supreme Court in giving what the New York Times said, absolute power to Judge Alexander de Moraes to become the great investigator and censor in Brazil. It has gotten to the point where Mr. de Moraes has explicitly said in speeches that are publicly available, that it the court has been under attack by an unnamed enemy which is part of a large global conspiracy trying to undermine democracy, so that any criticism on the actions of the court is nothing more than a part of the vast conspiracy, and therefore not to be taken seriously.

REICHARD: That is a lot of background but very important to understand. So, let’s talk about the facts in the case of Elon Musk. What accounts did de Moraes (day-MORE-ice) demand the X platform suspend?

HENRÍQUEZ: Well, there are dozens and dozens, and that includes journalists and just what you would nowadays call influencers. But the most egregious case has to do with the censoring of independent journalists. It's not that the court, de Moraes, decided to or ordered that specific tweets needed to be taken down. But what he did, he issued orders that were not notified to those that were being investigated, but rather given directly to X with this explicit order of not mentioning to the individuals that were affected why this was happening and that this was done under the terms of service by X, as opposed to by a judicial order, and their accounts were suspended. And in many and some of the more extreme cases, it didn't just affect them online. The court and de Moraes went as far as to cancel their passports so that they could not legally exit the country, or, in some cases, reenter it, as they were part of this long standing investigation that doesn't seem to be coming to an end anytime soon.

REICHARD: You know, some people are getting around the restrictions by using VPNs. Those are the virtual private networks that encrypt internet traffic. But Judge de Moraes’ order doesn’t just ban Twitter, it actually finds people who are caught using VPNs. What do you make of that?

HENRÍQUEZ: Indeed, that, in our view, is absolutely disproportionate, and I would go so far as to say unlawful. I mean, there is nothing illegal in using or downloading a VPN. None of the potential users that are affected by this order are even a part to the proceedings here. So he's adopting a decision that does not affect X directly, but rather goes against every citizen in Brazil who is not even part of the process in which this order has been issued. In that sense, this is a due process violation for every single one of them.

REICHARD: Yeah, and another consequence: the judge ordered the assets of Starlink to be frozen until X pays its fine. Starlink is Elon Musk’s satellite company. So what message does this send to other global companies who do business in Brazil?

HENRÍQUEZ: I think that's probably one of the more egregious parts of this particular order by the judge. I read the order, and the theory that he brings up to do this is that of a single economic unit. So under the public persona of Elon Musk, everybody knows to be a very outspoken and sort of bigger than life figure in our age. Everybody knows that he is an investor in SpaceX and he's heavily involved. Everybody knows that he owns Twitter. But the fact of the matter is, is that, as you mentioned, there are two entirely separate legal entities. And, you know, it's just factual that Elon Musk is a minority stockholder in SpaceX and Starlink, so that, in fact, by doing this freezing of assets, what then de Moraes is is doing is not really affecting primarily Elon Musk, but everybody else that has a majority stake in that company. Again, there's a huge due process violation with respect to this, because to the extent that we know, Musk and the company that, and really it's the company, because it's not Musk that's being affected, they didn't even have an opportunity to defend themselves or even discuss the, what I would call a very far fetched theory by the judge on this quote, unquote single economic unit that should have, at the very least been subject to a discussion with the attorneys for the parties, and that being, in this case, the representation of SpaceX and Starlink. That didn't happen.

REICHARD: Tomás, you mentioned that this order violates Brazilians’ freedom of speech. Here in the U.S., of course, we have freedom of speech protected in our Constitution and our laws. Do Brazilians have that?

HENRÍQUEZ: They do. The Brazilian Constitution has explicit provisions prohibiting any sort of censorship, and specifically for political reasons, which is what, in some ways, has been so intermingled with everything that has been happening as so much of the speech that has been censored by de Moraes has been political in nature. Judge de Moraes goes so far to say that the reason why he is throttling or trying to bring down X has to do with the potential for its existence to affect the outcome of the 2024 municipal election that is coming up in the country. So, you have a very clear recognition here that Judge de Moraes thinks he knows best on how the election should be run, what the outcome should be, and how there are some forms of speech that he deems to be unacceptable, as they have the power of swaying the voting public. We have, quite literally, a national censor for public discourse. That is unacceptable.

REICHARD: Well, all of this is quite concerning. How has the U.S. government responded so far?

HENRÍQUEZ: Well, the Biden administration hasn't issued any any statement having to do with the situation in Brazil, and there are many people that are critical, not only about their lack of response, but what their actions have been ramping up to this. That said, there has been a lot of concern on behalf of U.S. lawmakers and I, we've already seen statements from Senator Marco Rubio, Senator Ted Cruz, Senator Mike Lee from Utah. They have all been following the situation closely, and so have many members of the House of Representatives, most notably Representative Chris Smith, who has been actually engaged on this issue for several months already, because, as I said, this didn't happen overnight. It's been going on for quite a while.

REICHARD: One more question here. There are people in the West who say the dangers of misinformation and hate speech warrant some level of censorship. Tomás, how do you respond to people making that argument in light of what's happening in Brazil?

HENRÍQUEZ: I have yet to see any single country where this turns out well. The moment that you start going for misinformation, you are simply opening the door to having individuals becoming a law unto themselves. This is a rule of men and not a rule of law. Now and ultimately, it comes down to the judgment of those individuals who have their own sensibilities on proclivities on what counts or does not count as misinformation. This is a cautionary tale to avoid that outcome precisely.

REICHARD: Tomás Henríquez is director of advocacy for Latin America & Caribbean with ADF International. Tomas, thank you so much for your time!

HENRÍQUEZ: Thank you very much for having us.

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