A man in Brazil, once considered a free society, was sentenced to over a year in prison this year for calling a judge fat.
Brazil’s Supreme Federal Tribunal (STF), its top court – and its corollary, the Superior Electoral Tribunal (TSE) – have spent the past half decade ordering police raids against online commentators, imprisoning congressmen for Youtube rants, and outlawing the legitimate discussion of a leftist presidential candidate’s criminal record. The court banned the social media outlet Twitter, famously a hotbed of Brazilian superfandom for nearly every global pop culture phenomenon, until its owner, the pro-Chinese mogul Elon Musk, agreed to comply with the extensive censorship of conservatives.
Brazilians have made their voices of opposition to the Supreme Court’s repression clear: they voted for a conservative president in 2018 and, even in light of socialist President Luiz Inácio Lula da Silva’s victory in 2022, granted conservatives significant local election victories. They have taken to the streets to protest the censorship of voices the court deems uncivil. They have cosplayed as the court’s most notorious judge, Minister Alexandre de Moraes, mocking him as a cartoonish villain and enticing the court to arrest them.
A group of especially incensed Brazilians defecated in a Supreme Court office on January 8, 2023, during an otherwise mostly peaceful protest against the free speech restrictions that made the presidential election the year before, in their eyes, unfair.
And yet none of the kicking and screaming on the Brazilian right has done much to change the status quo – electing a conservative president seemed to embolden, not diminish, court repression – creating a glaring example of how leftist capture of a court system, the only unelected branch of government, could effectively nullify elections in the short term.
Like the United States, the Brazilian federal government is divided into executive, legislative, and judicial branches. The STF is its highest court, comprised of 11 justices, and the president nominates ministers to the top court, to be approved by the Senate. That is, however, where the constitutional similarities mostly end. The Brazilian constitution grants the judiciary much more power than its American counterpart, as it is not only the court of last resort for federal matters but the court that addresses constitutionality, and criminal charges against several high-ranking members of the other branches, the military, or federal judges. The STF decides whether or not to accept an extradition request from a foreign country. It can order police action against individuals, as it did in the wave of raids against pro-Bolsonaro content creators, comedians, and political commentators in 2020.
Brazil’s presidential office has been occupied by a leftist for all of the past two decades with the notable exception example of 2019 to 2023, when conservative lawmaker Jair Bolsonaro was president. Current President Lula, a radical leftist, is the longest serving, initially enjoying two terms in office from 2003 to 2011, then defeating Bolsonaro and taking office in 2022. This has granted the left outsized control in choosing who is appointed to the STF, creating a bench where eight of the 11 ministers were appointed by leftist presidents. Four of them were appointed by Lula alone; only two were appointed by a conservative president, Bolsonaro. This cohort has proven disarmingly comfortable with exercising its power against political opponents – and replacing them with judges who value free speech and individual liberties will be a decades-long effort, assuming the STF does not again act to prevent the election of a conservative.
The STF’s outsized role in regulating speech in the country snowballed from the first indication something had gone very wrong: Alexandre de Moraes ordering violent police raids against 29 people accused of “fake news,” which is not a crime in Brazil. The list of targets included conservative journalists, Youtube personalities, and political outsiders such as “a comic and musician whose repertoire includes a sexually explicit JK Rowling parody called ‘Harry Fucker'” and “a multimillionaire retail magnate famed for placing giant replicas of the Statue of Liberty outside his stores,” as the Guardian then described them. Bolsonaro – the head of the executive branch, to which the police should in theory belong – issued outraged comments calling the situation “unacceptable.” De Moraes, he accuratedly detailed, had the police “invading the homes of innocent people, submitting their wives and children to humiliation.”
The STF in short order elevated the profile of its targets, ordering the arrest of Congressman Daniel Silveira in February 2021. Silveira had published a video commentary on Youtube in which he declared the leftist-appointed STF ministers had “no character, no morals, no scruples.” The STF in particularly objected to Silveira allegedly stating in his video that he could imagine one of the ministers, Edson Fachin, “taking a beating.”
Less than a month after arresting Silveira, the STF freed another politician: Lula, who had been sentenced to almost a decade in prison for embezzlement during his prior presidential term. The STF declared that, despite his multiple convictions on charges of corruption, Lula could run again, defying Brazil’s law against felons running for president. It also overturned his conviction, claiming the original court that tried the case had no jurisdiction, but did not present any evidence exonerating Lula. Lula had not committed any so-called “fake news” infractions, and the STF appeared far more lenient on actual crimes in Brazil’s penal code.
Lula went on to run for president and win, with an assist from the top court. At the height of the 2022 presidential election, the TSE, the STF’s election affiliate body, decreed that media outlets in the country and the Bolsonaro campaign could not legally refer to Lula as “corrupt” or a “thief” in discussions of his corruption convictions. Alexandre de Moraes ran the TSE when this decision was made. Outlets and social media sites that did not abide by the order and immediately censor any discussion of Lula’s corruption faced massive fines, having their licenses revoked, or being expelled from the country.
While Bolsonaro was not free to make the point that Lula had been arrested and convicted multiple times of misappropriating public funds, the TSE did not act to silence Lula when he spuriously referred to Bolsonaro on television as a “pedophile” and a “cannibal.”
Lula won the election, prompting the January 8 protests.
Daniel Silveira, meanwhile, received a presidential pardon from Bolsonaro, but the STF overturned it. He has been in prison since February 2023 for making a Youtube video and was transferred to an agricultural penal colony on Wednesday.
Lula has offered full-throated defenses of his runaway Supreme Court, including at international venues such as the U.N. General Assembly.
“The defense of democracy implies permanent action against extremist, messianic, and totalitarian attacks, which spread hatred, intolerance, and resentment,” he said in September, opening the General Assembly as Brazil traditionally does. “In a globalized world, it makes no sense to resort to false patriots and isolationists.”
The STF, in turn, has been emboldened. The man sentenced to prison for insulting an STF minister this week, a political podcaster known popularly as Monark, had accused “fatty” Minister Flavio Dino of wanting to “enslave” Brazilians, a statement that is now clearly a form of prohibited speech in the country.
“That fatty wants to enslave you. You’re going to be enslaved by a fat man. This guy, alone — you put him out there on the street, he won’t last a second, he can’t even run a hundred meters,” Monark ranted. “Put him in the forest to see if he can survive the lions. Are you going to let this guy, who in real life is a piece of shit, be your master? … That’s not the fate I want for myself.”
Future conservative presidents may be able to fill some STF seats, but not before defeating what has clearly become a political censorship machine, and long-term change is not possible with only one such president, as Bolsonaro showed. Brazil’s constitution does give the judiciary too much power, but its situation is replicable in the free world – particularly in the United States, where interpretations of basic constitutional norms have vacillated wildly in the past two centuries. It is a lesson that elections affect far more than the seats they are meant to fill, and freedoms require the respect of the unelected judicial system to survive, perhaps even more than that of lawmakers or the chief executive.
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