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Musk v Moraes

Elon Musk is feuding with Brazil’s powerful Supreme Court, and the court has become the de facto regulator of social media in the country.

Over the past two weeks Elon Musk, a serial entrepreneur, has been on a very public tirade against Alexandre de Moraes, one of the Brazilian Supreme Court’s 11 judges. The dispute is about X, a social-media company that Mr. Musk owns. On April 6th X announced that a Brazilian court had ordered it to block an undisclosed set of “popular” accounts or face hefty fines. Instead, Mr. Musk said he would lift restrictions on previously suspended Brazilian accounts, and threatened to close down X in Brazil. Mr. Moraes then opened an inquiry into Mr. Musk for obstruction of justice. That prompted Mr. Musk to rail that censorship in Brazil is worse than in “any country in the world in which this platform operates”, and to call Mr. Moraes a “dictator” who should be impeached and put “on trial for his crimes.”

So far, so hyperbolic; on April 15th it emerged that X had sent a letter to Brazil’s Supreme Court, assuring the court that X would comply with its orders. But the row is revealing on two issues. One is the power of Brazil’s Supreme Court, which enjoys outsize authority over the lives of Brazilians. The other is the debate over how to regulate social media without hurting freedom of speech. Brazilians adore social media. According to gwi, a market-research firm in London, they spend an average of three hours and 49 minutes a day swiping and scrolling, more than people anywhere else (see chart). They also send the most messages on WhatsApp, a messaging platform, and rely heavily on social media for news. This makes Brazil fertile ground for the spread of misinformation and efforts to regulate it.

So far, regulating has been left to Brazil’s Supreme Court. The body draws its strength from the period after the military dictatorship that ended in 1985, when an assembly was called to rewrite the country’s constitution. It produced one of the world’s longest charters, covering everything from maternity leave to public wages. It also let political parties, trade unions and some other organizations file cases directly with the court, rather than having them filter up from lower bodies.

A prolix constitution combined with the empowerment of a wide range of actors to file petitions means that “just about anything can get to the court”, says Luís Roberto Barroso, the court’s president. The us Supreme Court receives around 7,000 petitions a year, and reviews the 100-150 it deems of national relevance. Brazil has heard of over 78,000 new cases in 2023 and made more than 15,000 judgments.

To deal with this workload, Brazil’s court allows individual judges to rule on cases. Requiring the full bench to rule would take months or even years. In an average year only around 10% of the court’s decisions are taken by the full court, says Diego Werneck of Insper, a university in São Paulo. The rest are unilateral. This has led to accusations that unelected judges have too much power. “We decide cases that in other parts of the world are left to politics and ordinary legislation,” says Mr. Barroso. Since 2019 the most visible target of criticism has been Mr. Moraes.

That year Jair Bolsonaro, a far-right populist, became president. He was no fan of the court. After he took office, threats to the court’s justices and their families increased dramatically, says Felipe Recondo of Jota, a news website focused on Brazil’s judiciary. In response, the court launched a probe into “fake news” under the leadership of Mr. Moraes, and gave itself the power to investigate threats and defamatory statements made against it online. Usually this power rests with prosecutors. The court thus became victim, prosecutor and arbiter all at once.

Mr Moraes repeatedly used this trinity to order social networks to take down the accounts of politicians and influencers, saying they threatened Brazil’s institutions. In February 2021 he ordered the arrest of a far-right congressman, Daniel Silveira, who had uploaded an expletive-laden rant about the court’s members to YouTube. Such decisions are almost impossible to appeal. In 2022, one day after the full court upheld Mr Silveira’s prison sentence, Mr. Bolsonaro pardoned him. But the pardon was later overturned by the Supreme Court. Mr. Silveira is still detained.

In the buildup to the presidential election of 2022, which Mr. Bolsonaro lost, he spread lies about voting machines being rigged against him. Mr. Moraes, who is also president of the electoral tribunal, expanded his crusade. In August 2022 he authorized police to raid the homes of eight businessmen, froze their bank accounts, and ordered social networks to suspend some of their accounts. This was prompted by WhatsApp messages from the two men which had been made public, and which appeared to express support for a coup.

Critics call Mr. Moraes’s tactics heavy-handed and opaque. Pablo Ortellado of the University of São Paulo notes that it is unclear how many accounts have been suspended, why, and for how long. Davi Tangerino, a criminal lawyer, says that an “endless inquiry without a defined scope” is not compatible with the rule of law.

Yet many Brazilians believe these unorthodox tactics were justified at the time. Fired up by Mr. Bolsonaro’s baseless claims of fraud, his supporters camped outside military barracks in the capital for two months before the election, urging the army to stage a coup. On January 8th 2023, a week after his opponent Luiz Inácio Lula da Silva was inaugurated, bolsonarista zealots stormed Congress, the presidential palace, and the Supreme Court. Instead of conceding defeat, Mr. Bolsonaro continued to question the result from Florida, where he briefly went into self-imposed exile.

Other institutions failed to restrict Mr. Bolsonaro’s behaviour. As president he appointed a pliant attorney-general, who shelved over 100 requests to investigate him. Some members of the army supported staging a coup. Police did not dislodge the coup-mongers camped outside the barracks. In February this year investigators revealed that Mr. Bolsonaro possessed a document that outlined his plan for a coup. It would have involved arresting Mr. Moraes and calling new elections. Police also claim to have found evidence that Mr. Bolsonaro’s aides were monitoring Mr. Moraes’s whereabouts. Mr. Bolsonaro denies wrongdoing. Against this fragile backdrop the Supreme Court was “the last bastion of democracy”, says Mr Tangerino, though he thinks its actions have since gone too far.

Meanwhile Brazil’s Congress was sitting on legislation that would regulate online speech. A bill influenced by the European Union’s Digital Services Act, which came into force in February, was approved by Brazil’s Senate in 2020, but stalled in the lower house. It would have required social-media platforms and search engines to produce reports detailing their content-moderation efforts. The firms would have been forced to tell users when their posts were taken down and provide them with instructions for appealing the decision. Yet legislators got bogged down in quarrels over which institutions should administer the new law. Tech companies were enraged by its requirement for them to pay influencers and journalists for their content. The law floundered, leaving regulation to the Supreme Court, says Peter Messitte, a judge who runs a program on Brazilian law at the American University in Washington.

On April 9th, spurred by Mr. Musk’s spat with Mr. Moraes, the speaker of the lower house said he would create a working group to draft a new social-media bill within 45 days. The dispute between judge and tech boss rumbles on; on April 18th Mr. Musk accused Mr. Moraes of violating Brazilian law. X says the United States’ Congress has asked to see the Brazilian Supreme Court’s orders on content moderation. To avoid foreign pressure, Brazil’s other institutions would do well to reclaim their responsibilities.

Take care!

Prof. Carl Boniface

Source: The Economist

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