Although it does not have the reach of President Luiz Inácio Lula da Silva, Alexandre de Moraes is perhaps the second most powerful person in Brazil.
According to the criteria of
As a judge of the Federal Supreme Court, as president of the Electoral Court and, above all, as the person responsible for two major investigations against groups that spread disinformation, Moraes has wielded a rare combination of judicial powers. He has imposed fines, ordered arrests, banned access to social media and imposed other sanctions. And, in some cases, he has acted as both investigator and judge.
Moraes, 55, has used those powers prolifically against large technology companies, but also against several members of the opposition to the government of Lula da Silva.
For a long time now, Brazilian conservatives say Moraes is abusing his power. But Xandão, or Big Alex, as his supporters and detractors jokingly call him, earned the gratitude of many members of the Brazilian political class who backed his counterbalancing actions during and after the tumultuous presidency of Jair Bolsonaro (2018-2012).
Now, that popularity is being put to the test. As international voices join the growing national chorus, Criticism of Moraes is beginning to make its way into Brazilian discourse.
The most public confrontation has occurred between Moraes and South African billionaire Elon Musk, which has strongly resisted the judge’s efforts to control free speech on its platform X (formerly Twitter) and other social media.
On August 28, Moraes used X’s own network to send Musk an ultimatum to appoint a new legal representative for his company in Brazil, and threatened to ban the platform entirely in Latin America’s largest country unless he complied. Several Brazilian legal experts told the newspaper Estado de S. Paulo that Moraes was overstepping his functions. Despite this, Moraes went ahead and ordered X banned in Brazil on August 30.
The reports by Fabio Serapião and Glenn Greenwald in the Folha de S. Paulo newspaper showed that Moraes and his lieutenants evaded official procedure when preparing sanctions for the targets of their investigations.
These controversies have once again focused attention on several questions: Is Moraes censoring the opposition or protecting Brazilian democracy? What should be the balance between allowing freedom of expression on political issues on social media and fighting disinformation and other threats? And finally: Has Moraes’ power outlived its usefulness, endangering due process and the rule of law in a different, but also harmful, way?
“It is clear that he is overstepping the boundaries”“There is no precedent, nothing remotely similar to having a judge (at the court they are known as ministers) in charge of investigations that become almost permanent institutions,” said Conrado Hübner, a professor of constitutional law at the University of São Paulo and a columnist for Folha.
“A year and a half has passed since the 2022 elections and the departure of a president who threatened the institutions. For Justice Alexandre de Moraes and his colleagues at the Supreme Court, it is as if we were still in that time.”
“A year and a half has passed since the 2022 elections and the departure of a president who threatened the institutions. For Justice Alexandre de Moraes and his colleagues at the Supreme Court, it is as if we were still in that time, at least as a pretext to maintain the anomalous concentration of power in this magistrate and his court,” reads an editorial in Folha on August 26.
Moraes was appointed to the Supreme Court in 2017. His name became better known and gained weight during Bolsonaro’s presidency, who during his government challenged undermining, even dismantling, democracy in Brazil.
Moraes versus Bolsonaro
Bolsonaro, who was a military man who long defended the last dictatorship in Brazil, He also threatened to act outside the “limits of the Constitution” and repeatedly questioned the integrity of the electronic voting system. and stated that he would not accept the result of the 2022 elections, among other controversial actions.
In this adverse environment, “The Supreme Court emerged as a counterweight to defend Brazil’s institutions “at a time when other branches of government, including Congress, were acting timidly,” said Rafael Mafei, a professor at the University of São Paulo and legal expert who has written extensively about the Brazilian judicial system.
The Brazilian judicial system gives Supreme Court justices much broader powers than their American counterparts, including the ability to make unilateral decisions — a power Moraes has not hesitated to use. The judge has been determined to stop misinformation on the internet, especially criticisms and falsehoods about Brazil’s electoral system, which were feared to endanger the country’s four-decade-old democracy.
“Moraes played a very important role at a very particular moment in politics of Brazilian law,” Mafei said. Bolsonaro had “captured” the attorney general’s office and ensured that Congress remained flexible by granting its members greater power over the budget, he said.
Bolsonaro lashed out at Moraes. And in a speech on Brazil’s Independence Day in 2021, the then-president said he would not abide by any future decisions made by the judge. He also ordered Moraes to close police investigations into his federal police appointments and other issues, and warned that If he did not do so, the judicial system could “suffer something that we do not want to happen.”
After that statement, Bolsonaro retracted it, but Tensions rose to a fever pitch as the 2022 elections approached. On election day, Moraes prevented highway police from stopping buses full of voters in an area of Brazil dominated by Lula supporters. He also banned the social media accounts of prominent figures who speculated that the election had been stolen, and went after officials who failed to prevent the January 8, 2023 riots in Brasilia, going so far as to suspend the governor of Brazil’s federal district from office for three months.
“At that time I was protecting democracy, and I think it was something very necessary, but In another context, someone with his role and power, doing something similar in a different situation, would generate many problems,” said Roberta Braga, executive director of the Institute for Digital Democracy in the Americas, a nonprofit organization that aims to improve the digital information environment in Latin America. Other experts agree with this view and believe that Moraes has already gone too far.
Moraes banned the social media accounts of right-wing influencers Rodrigo Constantino and Paulo Figueiredofor allegedly spreading disinformation about Covid-19 and calling into question Brazil’s electoral system. It also banned the accounts of department store chain owner and right-wing influencer Luciano Hang, allegedly for agitating for a coup in a pro-Bolsonaro messaging group. Blogger Allan dos Santos, who is self-exiled in Florida, had his passport revoked after calling for the Supreme Court to be dissolved; he was also accused of participating in an “organized crime network” that operates through monetized online videos. The US rejected an extradition request, apparently because it determined that Santos’ actions are not considered a crime in the US. “It’s pure and simple persecution,” the influencer said.
A list of accusations
Over the past year, the political environment has moderated in Brazil, as a certain degree of institutional harmony has been restored under Lula’s government. But Moraes has continued on the offensive. Earlier this year, the judge threatened to block Telegram, an encrypted messaging service, for refusing to comply with his orders (Pavel Durov, founder of the platform, was arrested in France in late August for failing to prevent illegal activities on the platform).
As part of Folha’s investigation into leaked documents from Moraes’ office in August, journalist Greenwald wrote that Bolsonaro’s former adviser, Filipe Martins, He had been detained on Moraes’ orders for almost six months without charges, based on evidence that had been refutedaccording to the article. On August 9, a few days after the story was published, Moraes ordered his release.
In their recent research, Greenwald and a colleague showed that Moraes also ordered his aides to gather information on certain individuals, in order to impose social media bans and other sanctions on them.The information gathered was passed off as coming from other judicial bodies or anonymous complaints. After this news was revealed, the judge ordered an investigation to find out the origin of the leaks. This exacerbated the concern that Moraes was blurring the boundaries between his judicial functions.
In response to the leaks and other accusations, Moraes has denied any wrongdoing, claiming his actions were in line with ongoing investigations.the details of which are secret, and whose decisions were confirmed by the full Supreme Court.
For Mafei, the revelations published so far by Greenwald and Serapião do not entirely discredit Moraes’ work, in part because the design of Brazilian institutions allows for a certain level of intermixing between the roles of the Supreme Court and the Superior Electoral Court, and gives the Supreme Court the unusual power to initiate cases on its own.
But the facts remain worrying, many say. “The attempt to disguise the origin of a request that was made by the electoral court, to make it look like a spontaneous movement, that is, in my opinion, unethical,” said Mafei.
Executives at several technology companies have complained about Moraes privately, arguing that it has helped make Brazil one of the most restrictive democracies in the world when it comes to online expression.
Meanwhile, the fight with Elon Musk also shows no signs of slowing down. In April, Musk accused the judge of ordering censorship in Brazil, And Moraes responded to the allegation by adding Musk to a list of suspects in the ongoing investigation into “digital militias.”
In his confrontation with Moraes, Musk is presenting himself as a global defender of freedom of expression –extrapolating from his stance on similar issues in the United States– and many on the Brazilian right agree, hailing him as a hero who steps forward to defend them from censorship.
But what is at stake in Brazil right now is not freedom of expression in the abstract, but whether Moraes is acting in accordance with the power conferred upon him by the Brazilian Constitution and whether he is duly respecting the rights of citizens.
The Brazilian Constitution protects the right to freedom of expression, but also prohibits racism and discrimination. The Internet is regulated and there is a pending law on how to handle fake news on the web, but for now the details of the law are still being discussed.How social media platforms should be treated legally remains unclear in Brazil, as in many other countries.
“I deeply regret the lack of clear criteria to distinguish what is prohibited from what is permitted,” Mafei told AQ.
In the meantime, it may be difficult to fully judge Moraes’ actions, given the secrecy under which he is conducting his two investigations under Brazilian law. “There are criticisms that Moraes maintains a very high level of secrecy about his actions, which makes the work of lawyers difficult,” Mafei said.
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