Shaky cellphone video taken recently in a New York City restaurant shows a stern, bald man being teased for wasting Brazilian taxpayer money.1 When restaurant staff are slow to remove their patron’s critic, the bald man gets up to do it himself, returning to his seat only when his heckler backs away. This was not the only time Brazilian Supreme Court Justice Alexandre de Moraes met with critics during his recent trip to New York. When a Brazilian journalist protested outside his hotel, Moraes had the man’s passport revoked, effectively leaving him stateless and stranded.2

Moraes has earned a reputation of late for dealing with detractors by force, which is particularly concerning given the reported purpose of his recent trip: to lecture American business leaders on “the future of democracy.”3 The only thing Americans can learn from Moraes is what not to do. That’s because Brazil is the latest testing ground for the notion that censorship—using the force of government to suppress speech—can solve problems, and Moraes has largely been at the head of that experiment.

Incitement to violence and the spread of “disinformation” are common rationalizations for expanding government powers to restrict speech, especially online, where ideas can spread faster and farther than ever before. These arguments have taken hold not only in cultural backwaters of the world but in advanced Western nations, including Germany, the United Kingdom, France, and Brazil, all of which, to varying degrees, now censor online content.4 And the events of January 6, 2021 convinced many that to safeguard elections, governments must be willing and able to regulate election-related speech in particular: “Brazil lives with the same incitement to hatred that took lives in the U.S. Capitol invasion, and democratic institutions must do everything possible to avoid scenarios like Jan. 6, 2021, which shocked the world,” said Dias Toffoli, a justice on Brazil’s Supreme Federal Court.5

As president of that court in 2019, Toffoli was key in granting Brazil’s Superior Electoral Court, which is charged with overseeing the nation’s elections, the powers to act as investigator, prosecutor, and judge in election-related cases. And Moraes, as head of the electoral court, has been flexing these powers liberally. The New York Times summarized in September:

Mr. Moraes has jailed five people without a trial for posts on social media that he said attacked Brazil’s institutions. He has also ordered social networks to remove thousands of posts and videos with little room for appeal. And this year, 10 of the court’s 11 justices sentenced a congressman to nearly nine years in prison for making what they said were threats against them in a livestream.6

This last was Daniel Silveira. “So many times I’ve imagined you taking a beating on the street,” he said in the livestream. He was no doubt testing the Brazilian Constitution’s free-speech protections, which state that “Any kind of censorship of a political, ideological and artistic nature is forbidden” and that “Deputies and senators enjoy civil and criminal immunity on account of any of their opinions, words and votes.”7 “What are you going to say?,” Silveira, a deputy from Rio de Janeiro, asked, “That I’m inciting violence?” He got his answer, then was pardoned the following day by sitting president Jair Bolsonaro.

This year, the electoral court even voted to give itself more power. It claimed unilateral discretion to censor online speech—and vested that power in Moraes.8

The problems with Brazil’s censorship would be insurmountable even if it were nonpartisan, but of course, it’s not. That’s because Brazil’s courts are packed with supporters of Luiz Inácio Lula da Silva and his leftist Workers’ Party. Toffoli, for instance, was a lawyer for Lula’s campaigns beginning in 1998, served as Lula’s attorney general, and was appointed a supreme court justice by Lula in 2009. When members of the court were criticized in 2019, Toffoli partnered with Moraes, launching an investigation to punish their critics.

And then there’s Edson Fachin, nominated to the supreme court by Lula’s handpicked successor, Dilma Rousseff. In 2017, after two terms as president, Lula was convicted of accepting massive bribes in the worst corruption scandal in Brazil’s fraud-riddled history (Netflix even made a series based on it).9 In an appeals court, the conviction was not only upheld; Lula’s sentence was extended from nine and a half years to twelve. Yet, after he served only nineteen months, his conviction was overturned by the Supreme Court, which ruled that the court that originally tried Lula lacked jurisdiction. The architect of that argument was Edson Fachin, who, along with Moraes, now sits on both the Supreme Federal Court and the Superior Electoral Court.

All in all, seven of eleven justices on Brazil’s Supreme Federal Court were appointed by Lula or Rousseff. They are proving the rule that there’s no such thing as evenhanded censorship—something that should inform our assessments of proposed regulations for government to enforce so-called “politically neutral” social media moderation in the United States.10 Moraes has been on the warpath, silencing Lula’s critics, along with those who question “the honorability” of the court and its justices.11

Perhaps most conspicuously, Moraes ordered Twitter and Instagram to shut down the accounts of Brazil’s most popular congressman, Nikolas Ferreira (who received more votes than any other candidate in the 2022 elections) after he posted a partial transcript of a podcast questioning presidential election results that declared Lula the winner.12

Indeed, many question Brazil’s recent election, the very thing the electoral court is supposed to safeguard, for the simple reason that judges censored commentators prior to polls, thereby compromising their legitimacy. For instance, though Lula was charged, convicted, and sentenced for corruption, and though the substance of those charges has never been disproved, Moraes effectively made it illegal to call the ex-con “corrupt.” After radio commentators discussed Lula’s corruption, Moraes forced their network—the largest in the Southern Hemisphere—not only to recant, but to air a message stating that “Lula is innocent.”13 The electoral court even censored President Bolsonaro’s campaign ads, demanding a fine of 50,000 reais ($9,500) for every ad that included the statement: “the biggest lie of this election is to say that Lula is not a thief. Voting for Lula is voting for corrupt people.”14⁠⁠ In light of the court’s attempts to rewrite reality, it has earned a new nickname: the Ministry of Truth (a reference to George Orwell’s 1984).

Anti-Lula Protest outside a military compound in Belo Horizonte, Brazil on November 12, 2022. Photo by Jon Hersey

The situation reminds onlookers of another lesson repeatedly learned and forgotten throughout history: Censorship backfires.

Take pre-Hitler Germany, for instance. As Jacob Mchangama catalogs, even supposed defenders of liberalism campaigned for restrictions on speech. In an article that sounds eerily familiar, one newspaperman wrote, “In order to protect itself effectively against lies and slander, the state has to be allowed to compromise basic rights, like the freedom of the press.”15 Along with other socialists and communists, Hitler was prohibited from speaking, and Nazi newspapers were banned. Thus, ideas that otherwise would have been subjected to vigorous public debate were instead swept under the rug and thereby sheltered from much of the criticism they deserved.

And what happened when the tables turned? Did Hitler say, “I know the state used to censor us all the time, but I’ll be the bigger man and let my detractors speak their minds freely”? Of course not. And when he was criticized for crushing dissent and ignoring the fact that open debate leads to better ideas, he had a ready response: “You should have recognized the beneficial power of criticism when we were in the opposition. . . . Back then our press was verboten . . . We were not allowed to speak.”16

Censors actively tarnish their own reputations while simultaneously shifting popular sympathies toward their muzzled victims, no matter how nutty those victims may be. Consider Carla Zambelli, a Brazilian congresswoman who’s recently been charged with pulling a gun on a stranger (she claimed he assaulted her, but the facts are unclear).17 Plenty of people think she’s literally crazy, but after Moraes ordered her banned from nine different social media platforms, many of those same people found themselves defending Zambelli’s right to freedom of speech.

Sometimes such injustices sway public opinion so far in favor of their victims that they cause the tables to turn. Arguably, this is what has happened in Brazil over the past sixty years or so. The military dictatorship that ruled the country from 1964 to 1985 so oppressed and censored the opposition that it actively funneled sympathy to it, bringing to power the socialist-leaning politicians that now wield similar tactics. It’s like the German situation all over again, albeit in a country more renowned for its beaches and its people’s benevolence than its military.

Censorship ultimately is impractical for the same reason that it’s immoral: Although ideas can be countered only with ideas, censors opt for force instead. But, as John Locke said, “such is the nature of the understanding, that it cannot be compelled to the belief of anything by outward force.”18 Censorship doesn’t change minds. Rather, it forces people to keep their ideas to themselves.

But that’s antithetical to human nature. Human beings live by ideas, by reasoning from them to create all the values on which human life depends, from healthy food and comfortable homes to air travel and lifesaving surgery. As Aristotle said, man is the “rational animal.” And communication is vital to reasoning. At some point, everyone has the experience of coming up with ideas they think are great, only to have someone else poke holes and point out weaknesses they hadn’t seen. Whereas censorship entrenches opposition, dialogue facilitates learning and growth, which in turn helps people to create wonderful things that enable us to live and thrive.

To the extent that people are prevented from speaking their minds—debating, persuading, reasoning with others—they can’t live as human beings. What options are they left with? Their only recourse is to respond in kind to those who use force against them. No wonder so many Brazilians, voiceless and backed into a corner, now hope for the country’s military to intervene. That’s playing with fire, especially given Brazil’s history with military dictatorship. But it’s an eloquent example of how censorship backfires. The court charged with safeguarding elections has instead imperiled them by suppressing speech.

To take away a man’s power of persuasion by censorship is to ignore his human nature and effectively turn him into a caged animal—one that will lash out in time. There can be no rational argument for doing away with rational arguments, nor any for endowing some with the authority to dictate what is and is not rational or true. Discerning truth from falsehood requires that man look first and foremost at reality, not the prescribed opinions of authorities.

There can be no rational argument for doing away with rational arguments, nor any for endowing some with the authority to dictate what is and is not rational or true. —@revivingreason
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Americans have nothing to learn from Moraes and much to teach. When they consult a petty foreign dictator, they signal openness to his tactics and grant him a power that people often underestimate: moral sanction. Instead, as much of the world tramples the individual’s right to freedom of speech, Americans should loudly trumpet its virtues—and repudiate the injustices of those who muzzle their countrymen.

As much of the world tramples the individual’s right to freedom of speech, Americans should loudly trumpet its virtues, and repudiate the injustices of those who muzzle their countrymen. —@revivingreason
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Endnotes

1. “Brazilian Calls Police in New York against Alexandre de Moraes,” Revista Oeste, November 14, 2022, https://revistaoeste.com/sem-categoria/brasileiro-chama-a-policia-em-nova-iorque-contra-alexandre-de-moraes/.

2. César Mendez, “Moraes from the Brazilian Supreme Court Cancels Passport of ‘Defiant’ Journalist Living Already in Exile,” Rio Times, November 22, 2022, https://www.riotimesonline.com/brazil-news/brazil/moraes-from-brazilian-supreme-court-cancels-passport-of-defiant-journalist-living-already-in-exile/.

3. I won’t here address the common misuse of the concept “democracy,” which means unlimited majority rule. The fact is, democracy is dangerous, which is why America’s founders opted for a rights-protecting republic with democratically elected representatives, not a democracy.

4. “Germany: Flawed Social Media Law,” Human Rights Watch, February 14, 2018, https://www.hrw.org/news/2018/02/14/germany-flawed-social-media-law; Joe Mullin, “The UK Online Safety Bill Attacks Free Speech and Encryption,” August 5, 2022, Electronic Frontier Foundation, https://www.eff.org/deeplinks/2022/08/uks-online-safety-bill-attacks-free-speech-and-encryption; Simon Chandler, “French Social Media Law Is Another Coronavirus Blow to Freedom of Speech,” Forbes, May 14, 2020, https://www.forbes.com/sites/simonchandler/2020/05/14/french-social-media-law-is-another-coronavirus-blow-to-freedom-of-speech/.

5. Jack Nicas and André Spigariol, “To Defend Democracy, Is Brazil’s Top Court Going Too Far?,” New York Times, September 26, 2022, https://www.nytimes.com/2022/09/26/world/americas/bolsonaro-brazil-supreme-court.html.

6. Nicas and Spigariol, “To Defend Democracy, Is Brazil’s Top Court Going Too Far?”

7. See the Constitution of the Federative Republic of Brazil, Articles 220 and 53, https://www.stf.jus.br/arquivo/cms/legislacaoConstituicao/anexo/brazil_federal_constitution.pdf.

8. Jack Nicas, “To Fight Lies, Brazil Gives One Man Power Over Online Speech,” New York Times, October 21, 2022, https://www.nytimes.com/2022/10/21/world/americas/brazil-online-content-misinformation.html.

9. Larry Rohter, “Brazil’s Jaw-Dropping Corruption Scandal Comes to Netflix,” New York Times, March 16, 2018, https://www.nytimes.com/2018/03/16/arts/television/mechanism-netflix-brazil-jose-padilha.html.

10. “Senator Hawley Introduces Legislation to Amend Section 230 Immunity for Big Tech Companies,” Senator Josh Hawley, June 19, 2019, https://www.hawley.senate.gov/senator-hawley-introduces-legislation-amend-section-230-immunity-big-tech-companies.

11. Nicas and Spigariol, “To Defend Democracy, Is Brazil’s Top Court Going Too Far?”

12. “Brazil: The Deputy with the Most Votes in the Elections Sued Electoral High Court President for Censorship,” Rio Times, November 16, 2022, https://www.riotimesonline.com/brazil-news/brazil/politics-brazil/brazil-the-deputy-with-the-most-votes-in-the-elections-sued-the-president-of-the-tse-for-censorship/; “Elon Musk Assures Probe into Suspension of Far-Right Brazilian Politicians from Twitter,” India Today, November 8, 2022, https://www.indiatoday.in/world/story/elon-musk-assures-probe-into-suspension-of-far-right-brazilian-politicians-from-twitte-2294556-2022-11-08.

13. “TSE Orders Jovem Pan to Say That Lula Is Innocent,” UOL, October 29, 2022, https://noticias.uol.com.br/ultimas-noticias/agencia-estado/2022/10/29/tse-manda-jovem-pan-dizer-que-lula-e-inocente.htm.

14. “TSE Minister Prohibits Bolsonaro Propaganda That Calls Lula a ‘Thief,’” Gazeta do Povo, October 13, 2022, https://www.gazetadopovo.com.br/eleicoes/2022/ministro-do-tse-proibe-propaganda-de-bolsonaro-que-chama-de-lula-de-ladrao/.

15. Jacob Mchangama, Free Speech: A History from Socrates to Social Media (New York: Basic Books, 2022), 274.

16. Mchangama, Free Speech, 281.

17. “Bolsonarist Federal Deputy Points a Gun at People in São Paulo,” Folha de São Paulo, October 30, 2022, https://www1.folha.uol.com.br/internacional/en/brazil/2022/10/carla-zambelli-points-a-gun-at-people-in-sao-paulo.shtml.

18. John Locke, Two Treatises of Government and A Letter Concerning Toleration (Overland Park, KS: Neeland Media, 2009), 153.

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