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A crusader judge tests the limits of freedom of expression in Brazil

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SAO PAULO — With his Batman-like robe, athletic build and bald head, Brazil’s Supreme Court Justice Alexandre de Moraes has an imposing figure.

For some, his actions on the bench are more intimidating. Whether investigating former President Jair Bolsonaro, arresting protesters based on thin evidence, or banning his far-right supporters from social media, de Moraes aggressively pursues those suspected of undermine Brazil’s fragile democracy.

Following this month’s attack on Brazil’s Congress, presidential palace and Supreme Court by a mob of Bolsonaro supporters seeking to overturn recent elections, de Moraes’ role as the main broker of the judicial power has further expanded. Some accuse de Moraes of overreaching in the name of protecting Brazilian democracy from the twin threats of political violence and disinformation. Others see his brash tactics as justified by extraordinary circumstances.

“Our democracy is in a situation of extreme risk, so it is understandable that some exceptional restrictions are being put in place,” said Juliana Cesario Alvim, professor of human rights at the Federal University of Minas Gerais who has studied the Supreme Court decisions. “But that doesn’t mean there shouldn’t be criticism of how these cases are being handled.”

Defining the limits of freedom of expression is not only an enigma in Brazil. In the United States, some conservatives consider moderating social media content to be censorship. Some liberals say not enough is being done to eradicate hate, violence and misinformation.

In Brazil, Bolsonaro loyalists who say de Moraes is muzzling expression recently won the support — and social media bullhorn — of Pulitzer Prize-winning journalist Glenn Greenwald, who resides in Brazil.

Unlike the United States, where the First Amendment is an almost sacred text taught in all colleges, the Brazilian constitution is heavier. Written in the aftermath of the military dictatorship of 1964-1985, it contains a long list of ambitious goals and prohibitions against specific crimes such as racism and, more recently, homophobia. But freedom of expression is not absolute, according to Jane Reis, federal judge and professor of law in Rio de Janeiro.

Still, some of de Moraes’ decisions have raised eyebrows – even among his defenders. In August, he authorized search warrants for business leaders after local media reported they had a private group chat that included free speech in favor of a possible coup, but did not appear to show a coordinated effort to overthrow democracy.

The Supreme Court moved in 2019 to investigate fake news and threats against Supreme Court justices, significantly bolstering Moraes’ power to search, censor and even imprison anti-democratic voices.

This decision immediately sparked controversy and was unprecedented because it was not the result of a request from lawmakers or a government institution. The investigation was conducted with the magistrates of the court – and Moraes as lead investigator – serving as both accuser, victim and arbiter, critics say. The court denies that characterization, saying it would only rule on charges brought by prosecutors present or against someone with special legal protection, such as a sitting lawmaker.

Soon, de Moraes turned the attention to Bolsonaro. In 2020, as police raided homes and froze the social media accounts of far-right supporters and YouTubers, pro-Bolsonaro lawmakers argued for de Moraes’ impeachment, saying he had a bias against the far-right leader. Bolsonaro has used his large social media presence for months to raise unfounded doubts about Brazil’s electronic voting system, pitting it against de Moraes when he assumed the presidency of the electoral authority.

Since Bolsonaro’s defeat to leftist former president Luiz Inácio Lula da Silva in a second round in October, de Moraes’ crusade has intensified. Three days after mobs stormed the Brazilian capital, de Moraes ordered Facebook, Twitter, TikTok and Instagram to block the accounts of individuals accused of inciting or supporting attacks on Brazil’s democratic order. Failure to comply within two hours would result in a fine of 100,000 reais ($20,000) per day, according to the secret edict first revealed by Greenwald.

Among those targeted is Nikolas Ferreira, a 26-year-old YouTuber who received the most votes out of 513 candidates for federal parliament in the last election. Days after the assault, Ferreira falsely blamed the incoming administration for the violence.

“In the name of democracy, an unelected judge is silencing the people’s elected representatives on the internet,” Greenwald, who bills himself as a free speech absolutist, said in an interview.

Telegram refused to block Ferreira’s account. Local media reported on Wednesday, without specifying its origin, that the company sent a letter to de Moraes saying the content removal orders hindered legitimate discussion, involved censorship and restricted free speech.

Ferreira thanked Telegram on his channel, the only public platform he could still use.

“They literally want me to disappear from the internet. Surreal,” he wrote.

Lawyers point out that de Moraes is not acting alone. His decisions, though sometimes made quickly in response to news reports, must ultimately be ratified by the full court. Absent any action from the attorney general – a Bolsonaro appointee – de Moraes has been propelled by his colleagues to the forefront of their fight against far-right radicalism.

Legal experts say the free speech debate is distracting from larger concerns about overbreadth, pointing to a few decisions by Moraes not analyzed by the full bench, including arrests, and the origin of the fake news investigation.

“The responses of justice must be proportional to the attacks and must not be excessive,” said Marcus Vinicius Furtado Coelho, former president of the Brazilian Bar. “Arresting people should be the last resort, and only when necessary and after a fair trial.”

Brazil’s Supreme Court said in a statement that “any investigation is absolutely constitutional.” He added that de Moraes’ decisions in the fake news investigation had been upheld by the full court 40 times, while many other investigations under his direction were progressing with court permission.

Moraes, 54, seems to enjoy his enforcer image. Unique among Supreme Court justices, who mostly come from other courts or prosecutors’ offices, he began his legal career as a criminal defense attorney. Later, he took the reins as head of security for Sao Paulo, the most populous state.

So far, many leftists and some moderates have seemed willing to turn a blind eye to any potential overshoot as long as Bolsonaro’s move is contained.

But they called him a “putschist” when he was appointed to the Supreme Court six years ago, accusing him of plotting to remove then-President Dilma Rousseff, a close ally of Lula.

During the invasion of government buildings on January 8, a door to de Moraes’ office was ripped off and proudly displayed to an excited crowd. A few hours later, justice issued arrest warrants against hundreds of people who had participated in the chaos.

“These people are uncivilized. Look what they did,” de Moraes said in a speech a few days later. “The Supreme Court, I’m absolutely sure, with legal backing, with our constitution, and the federal police, will punish all those responsible.”

Goodman reported from Miami.

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