Federal police arrested Daniel Silveira, a member of the lower house of the Congress of Brazil, late Tuesday for a YouTube video the nation’s Supreme Federal Tribunal (STF), the highest constitutional court, claimed included speech that constituted a “flagrant crime.”
The Supreme Court justice responsible for the arrest, Alexandre de Moraes, was also the protagonist of an order issued in May 2020 to arrest 29 individuals — most of them journalists and comedians — for allegedly spreading “fake news.” Some of the victims of the fake news uploaded videos of their violent arrests to social media, showing aggressive police action in front of their families in response to commentary they had posted online.
The STF is the highest court in Brazil with the authority to rule on constitutional, not criminal, cases. No appeal process exists in response to an STF ruling.
In addition to the lawmaker’s arrest, de Moraes ordered YouTube to immediately remove the offending video from their site or face a 100,000-reais ($18,619.89) fine. Brazilian outlets noted that the video appeared to still be available on the site as of Wednesday morning. As of publication, however, YouTube has removed the video from its platform. Attempting to view it prompts a message saying “this video has been removed for violating YouTube’s Terms of Service.”
In the video, Silveira uses profanity to attack the STF, accusing all the justices except the chief justice, Luiz Fux, of having “no character, no scruples, no morals.” He took particular offense to STF concerns about a message former Army commander General Eduardo Villas Bôas posted on Twitter in 2018, daring the STF to arrest Villas Bôas over the tweet in question if he felt so offended to criticize it publicly. Silveira repeatedly accused STF justices of being insufficiently “manly” to do so and lacking “the balls” to arrest him.
Silveira also claimed to have imagined the main justice who objected to Villas Bôas’ statement, Edson Fachin, “taking a beating” — the remark de Moraes argued was a call to violence against the STF.
Silveira elsewhere has accused de Moraes of ordering the torture of political opponents in prison.
The order for his arrest accused Silveira of seeking to overthrow the STF and the “current regime” ruling Brazil, as well as “incitement of the population to the subversion of the political and social order.”
“The lawmaker’s criminal conduct constitutes a flagrant crime,” de Moraes concluded.
Silveira is a former police officer, a conservative, and supporter of President Jair Bolsonaro in his first term in Congress. The STF is the last major branch of government still controlled by politicians with ties to the socialist Workers’ Party (PT), many of them appointed by or otherwise veterans of the administrations of far-left former presidents Luiz Inácio Lula da Silva and Dilma Rousseff. Lula was sentenced to over a decade in prison for corruption; Rousseff was impeached and removed from office.
Conservatives, through Bolsonaro, currently control the executive branch and recently seized the leadership of Congress.
Silveira complied with the order to spend Tuesday night in prison, but has continued to insist the video he uploaded to his YouTube account does not violate any laws and that he enjoys legislative immunity from prosecution. He documented his arrest on Twitter, later posting, “to the leftists who are celebrating — relax, I have material immunity. I am just going to sleep away from home and prove to Brazil who these Supreme Court justices are. Being ‘imprisoned’ in these circumstances in a source of pride.”
On Wednesday morning, Silveira published a statement by his office confirming that he had spent the night in jail and accusing the STF of a “violent attack against his material immunity [and] the right to exercise freedom of expression itself.”
“The assessment of the lawmaker clarifies that there is no legal theory to justify the alleged state of flagrancy of the crimes theoretically committed by Daniel Silveira,” the office’s statement read.
STF supporters in Brazilian mainstream media applauded Silveira’s arrest. Reinaldo Azevedo, a columnist for UOL, argued that the law that grants members of Congress immunity does not protect them from committing crimes. Silveira’s words, he further contended, are crimes because “there is a clear incitement to violence against members of the Court.” He does not make the case that Silveira has committed any objectionable acts related to the controversy other than speaking in a YouTube video.
“Deputies and Senators enjoy civil and criminal inviolability on account of any of their opinions, words and votes,” Article 53 of the Brazilian constitution reads.
The STF in its current state has pursued similar cases against conservatives for years. In 2019, Alexandre de Moraes ordered the magazine Crusoé to unpublish an article in which journalists accused the then-chief justice of the court, Dias Toffoli, of involvement with the corrupt contracting firm Odebrecht, at the heart of the “Operation Car Wash” scandal that resulted in the resignations or arrests of dozens of politicians. The court did not challenge the veracity of the report. In solidarity, the outlet the Intercept re-published the offending report in its entirety.
“The decision of Alexandre de Moraes is extremely dangerous,” the Intercept — which has traditionally maintained a left-of-center stance — said in a note attached to the article. “In his dispatch, the minister said that Crusoe and the site The Antagonist published fake news that went beyond the freedom of expression.”
De Moraes struck again in May 2020, ordering violent raids on comedians, journalists, and online pundits on dubious charges of “fake news.” The raid followed a statement by Toffoli asserting that the STF had the responsibility to silence any words that “affect the honorability and security of the Supreme Court, its members, and family members.” The Guardian at the time listed among the raid’s victims “a former Femen activist-turned-anti-abortion-militant; a comic and musician whose repertoire includes a sexually explicit JK Rowling parody called “Harry Fucker”; a gun-toting, communist-bashing congressman; a hard-right blogger; and a multimillionaire retail magnate famed for placing giant replicas of the Statue of Liberty outside his stores.”
De Moraes responded to the national outrage in response to the raids by claiming they were designed to silence “bots” distributing misinformation, though all of those arrested were human.
Most recently, in August, de Moraes ordered Facebook to pay a 1.92-million-real ($367,000) fine for failing to remove accounts that he had decreed to be “fake news.”