- Democracy in Brazil and Free Speech - 26 May, 2025
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Elon Musk had been on a dispute with the Brazilian Supreme Court on what it means to protect Freedom of Speech in Brazil. Alexandre de Moraes, a Brazilian Supreme Court Justice, had ordered “X” to shut down a few accounts he considered to be posting content that jeopardized the country’s democracy. In response, Elon Musk, “X”‘s owner, stated that he would not comply with the Justice’s order since it harmed Brazilian Freedom of Speech. The conflict that spanned for a few months culminated in a Brazilian Supreme Court decision to block “X”, which eventually put enough pressure on the network to comply with the court’s demands. After obeying the court’s decisions, the tribunal decided to unblock “X” in the country.
The feud between Musk and Moraes has generated a lot of noise and has been the subject of heated discussions on what constitutes the Right to Freedom of Speech. This article aims to explain that such a dispute does not happen in a vacuum, but in a scenario whose settings date back to the 60’s. The goal is to offer a brief explanation of the legal arguments regarding Freedom of Speech in Brazil and its origins in the country.
Em destaque, escultura A Justiça, localizada em frente ao prédio do Supremo Tribunal Federal, na Praça dos Três Poderes. O monumento representa uma mulher, sentada e vendada, segurando uma espada, um dos símbolos mais usados para caracterizar as deusas greco-romanas das leis e da justiça.
Foto: Roque de Sá/Agência Senado
Brazilian Supreme Court and Ellon Musk’s opinion
Ellon Musk’s quarrel with the Brazilian Supreme Court (STF) which entailed the billionaire’s attack on the country’s institutions has been the object of several newspaper articles and podcasts. The reason for that feud was Brazilian Democracy: Alexandre de Moraes, a Brazilian Supreme Court Justice and a Professor at the University of São Paulo, had ordered “X” to suspend certain network accounts. He alleged that those accounts were responsible for posts that disseminated false information and hate speech and, therefore, put the country’s democracy at peril. Moraes’ decisions were sealed making it impossible to legally analyze the cases in question.
Elon Musk, a tech entrepreneur born in South Africa and a United States’ national, argued that Moraes’ decisions were contrary to the right to Freedom of Speech and contended that he would not comply with the Justice’s orders for they harmed Brazilian democracy. Since “X” did not shut down the accounts requested nor complied with other demands made by the Supreme Court, Alexandre de Moraes ordered the social network’s block and took further measures such as freezing accounts from Musk’s business in the country. The block lasted for five weeks and ended because Musk caved and complied with all the Supreme Court’s demands, including shutting down the accounts requested by the Supreme Court.
The 1988 Constitution
The case between the Brazilian Supreme Court and Musk is complex and requires a legal expert’s analysis. As such, this article will not draw any conclusions but briefly explain the legal scenario behind their quarrel.
The Right to Freedom of Speech in Brazil is protected by its 1988 constitution, which is called “The Citizen Constitution” (Constituição Cidadã). Its name is an homage to its extensive protection of Human Rights. The constitution’s Objectives and its Human Rights are upheld in articles 03 and 05. Each of them has multiple sections, each one guaranteeing a goal and a different right. Freedom of Speech is guaranteed in sections IV and IX of article 05:
“Article 5 – All are equal before the law, without distinction of any kind, guaranteeing to Brazilians and to foreign residents in the country the inviolability of the rights to life, liberty, equality, security, and property, in the following terms:
IV – The manifestation of thought is free, and anonymity is prohibited;
IX – The expression of intellectual, artistic, scientific, and communication activities is free, regardless of censorship or licensing;”
There are 79 sections in Article 05, the reason for that is that Brazilian constitutionalists understand that for the country to achieve democracy, there needs to be a balance between each of the different rights upheld by the constitution, which means that none of these rights are absolute.
SOURCE: Edilson Rodrigues/Agência Senado
The Right to Free Speech is limited by the right to information, prescribed in section XIV of article 05. Even though these rights seem complementary, they clash when “Fake News” is uttered. False information that is disseminated as being true violates a person’s right to inform themselves as they are misleading. Furthermore, Freedom of Speech is also limited by the right to be treated fairly, prescribed in section IV of article 03. Since disseminating “Hate Speech” violates a person’s integrity, it harms their right to be treated as equals in society.
In that manner, in Brazil, it is understood that Speech, if false or covered in hate, is not conducive to democracy, quite the opposite, it harms it. Notwithstanding, the Brazilian constitution also guarantees the right to due process, upheld by Article 05 in its sections LIV, LV, LVI, LXXII, and LXXVIII. For that reason, a person’s speech can only be understood as unconstitutional and hurtful to democracy after a fair and legal process.
Freedom of Speech in Brazil and the Present Scenario
The reason for the 1988 constitution to protect so firmly Human Rights is that its goal was to “re-democratize” Brazil after a Military dictatorship.
Tanques em frente ao Congresso Nacional (1964).
SOURCE: Arquivo Público do DF (Licensed under the Attribution 2.0 Generic policy. No modifications to the original image were made)
In seeking to guarantee that the country would remain a capitalist nation during the Cold War, the armed forces organized a coup in March 1964 and kept on terrorizing the country until 1985. Brazil was not the only Latin American nation to succumb to such a coup, the most famous regimes were that of Chile and Argentina but there were many others.
To keep control, in December of 1968 the military government promulgated the Institutional Act 5 (known as AI5) which stripped Brazilians of their Political Rights, among which was the Right to Freedom of Speech.
The act was followed by censorship against protests against the government. Those who disrespected the censorship were exiled and tortured. Notorious figures of Brazilian culture and some of its most renowned thinkers like Gilberto Gil, Caetano Veloso, and Darcy Ribeiro were subject to these penalties. The period was brilliantly portrayed in the movie “I am Still Here” (Ainda Estou Aqui), which won the best Screenplay in La Biennale di Venezia.
When the dictatorship ended, and the AI5 was revoked, the idea of the Citizen Constitution was born. It would uphold not only the organization of the state but also Human Rights so that the horrors of the dictatorship would not be repeated.
Foto de Silvaldo Leung Vieira, à época fotógrafo da Academia da Polícia Militar de São Paulo.
SOURCE: Núcleo Memória (Public Domain)
In recent times, however, the far-right has cried for a military coup once again. On January 8 2023, several far-right activists invaded and vandalized the Brazilian Supreme Court, the Congress, and the Presidential Palace, asking for the deposal of democratically-elected President Lula and the comeback of former president Bolsonaro.
On November 13 2024, a man exploded two bombs and killed himself on the doorsteps of the Brazilian Supreme Court. It is believed that he aimed to explode the Supreme Court building and kill Justice Alexandre de Moraes. One day after the explosion, the Federal Police asked for the arrest of three military men due to suspicions that they planned the killing of President Lula, Vice-President Alckmin, and Alexandre de Moraes.
Brazil is going through a tumultuous time. Musk’s dispute with Moraes is only one more of a series of events that put Brazilian Institutions in check. Considering the complexity of the Brazilian democratic system and the movements that are presently happening in the country, it is complicated to make allegations of the violation of the Right to Freedom of Speech in the country without holding all the facts and making a deep juridical analysis.
Brazilian history is far too complex and so is its law.
Questions for Reflection and Further Debate
- How equipped are we to judge a system different from our own, without knowledge of its laws and its history?;
- Does every country have the same concept of Human Rights Institutions?;
- To what extent, can false allegations of Human Rights harm a country’s democracy?
Suggested reading:
- Raphael Tsavkko Garcia. “Elon Musk is a threat to Brazil’s democracy”. Aljazeera. September 19, 2024.
- John Prideaux. “The case for free speech in Brazil and beyond”. The Economist. September 11, 2024.
- Jack Nicas. “Is Elon Musk’s Brazilian Nemesis Saving Democracy or Hurting It?”. New York Times. October 16, 2024.
