Elon Musk fights for free speech in Brazil

The latest example is Supreme Court Judge Alexandre de Moraes’s Sept. 1 shutdown of Elon Musk’s X social-media site (formerly Twitter). As part of the court’s order, anyone caught using a virtual private network to evade the ban is subject to a fine of 50,000 reais (nearly $9,000) a day. 

Judge de Moraes also announced a freeze of the financial accounts of Starlink, the satellite system belonging to Mr. Musk’s SpaceX. Starlink is used by internet providers that serve millions of Brazilians.

Judge de Moraes has nothing against X per se. His beef is with social-media influencers whose use of irreverence and derision as rhetorical weapons against the ruling establishment makes them popular on the right side of Brazilian politics.

Swiftian satire is loads of fun if you’re the forgotten man, powerless against a notoriously corrupt system. But Judge de Moraes calls these nonconformists purveyors of disinformation and a threat to democracy. He considers it his job to gag them.

This has put him at odds with Mr. Musk, who isn’t involved in Brazilian politics but has a commitment to free speech. Other platforms have obeyed the court’s instructions to block antiestablishment opinion makers. Mr. Musk refuses to comply on grounds that doing so would violate Brazil’s constitution, which in Articles 5 and 220 explicitly protects speech.

Under threats by Judge de Moraes to jail X employees for disobeying him, Mr. Musk has removed his representatives from the country. That frosts Judge de Moraes, who wants to be able to detain his targets. The court says the order will remain in place until X pays fines and names a legal representative who resides in Brazil.

Mr. Musk has the resources to fight this out. But how can polarized Brazil recover the separation of powers and a high court that stays in its lane?

Step one would seem to be recognizing the problem: For more than four years, the Supreme Court, led by Judge de Moraes and others who share his thirst for power, has been wading, neck-deep, into politics.

Take the decision to let President Luiz Inacio “Lula" da Silva off the hook for corruption. His Workers’ Party was at the center of the largest bribery scandal in the history of Latin America—for which there is a ton of competition. It took place during Mr. da Silva’s first two terms as president (2003-10) and Workers’ Party President Dilma Rouseff’s 5½ years in office (2011-16.) 

Many politicians and corporate bigwigs were found guilty of corruption, including Lula, as I described in a February 2018 Americas column, after an appellate court upheld his conviction for a second time. It seemed powerful people were no longer above the law.

But this was not to last. Mouthpieces for the convicted worked to delegitimize the federal investigation—Operation Car Wash—in the public square but were constantly checked by law-and-order Brazilians. By 2020 Judge de Moraes was telling social-media companies to remove accounts that were under investigation for spreading false information, i.e., his critics. Twitter, not yet owned by Mr. Musk, complied.

In 2021 the Supreme Court annulled Lula’s conviction on a technicality, arguing that he was tried in the wrong jurisdiction. Because the statute of limitations had run out, Lula walked free. But he was never exonerated.

Half the country was furious, venting its anger on social media. Millions of Brazilians took to referring to the former president as a thief. Judge de Moraes and his colleagues on the high court, considering themselves above the plebeian fray and beyond reproach, were offended by the public rants against them. 

During the 2022 presidential campaign, when Judge de Moraes was also president of the seven-member electoral tribunal, he again engaged in censorship to protect Lula, who was running for a third, nonconsecutive term. Among other prohibitions on “hate speech," it was verboten to point out that Lula was never cleared in the bribery case.

When the electoral tribunal announced that Lula had narrowly won the election, some supporters of his rival, President Jair Bolsonaro, doubted the results. But an audit was impossible because the high court had struck down a law that would have provided a paper trail to verify the electronic results. Frustrated citizens without recourse showed up in Brasilia, where chaos broke out on Jan. 8, 2022.

Mr. Moraes has used that event to justify prosecutorial overreach, which includes maintaining secret investigative files on outspoken critics of the state. This is feeding further conspiracy theories and undermining Brazilian confidence in institutions. More speech repression, like banning X, won’t help. Rather, it can be expected to drive Brazilian democracy further into the ditch.