Musk’s latest nemesis: A Brazilian judge risking overreach in hate-speech fight

Brazilian Supreme Court Justice Alexandre de Moraes said he had called on X owner Elon Musk to block the accounts of criminals inciting attacks on police officers and their families. But Musk refused and closed the social-media giant’s offices in Brazil, thereby breaking a 2002 law requiring a legal representative in the country.

It was the only example of offensive content cited in a 51-page ruling that banned X in Brazil, marking the most audacious move in a yearslong crusade to regulate social media from the bench that has made de Moraes a household name among Brazilians. He has put Brazil at the center of a global debate about free speech and brought new scrutiny to the country’s judges, who are empowered by a lengthy constitution that gives them the option to act as prosecutor, judge and jury.

In the past two years alone, de Moraes has ordered the arrest of more than a thousand people in the name of safeguarding democracy—mainly antigovernment rioters or those he said had spread lies about the court online. He has single-handedly removed a state governor from office and temporarily shut down the messaging app WhatsApp. He has ordered hundreds of social-media accounts to be blocked, including those belonging to congressmen and businessmen, often with little to no explanation as to why.

De Moraes has chosen his biggest target yet in Musk, a billionaire and self-described free-speech absolutist who the justice said in his Aug. 30 ruling had mistaken Brazil for a “lawless land" and had confused “freedom of expression with freedom of aggression."

The fight represents another foray into politics in Latin America for Musk. He has used his perch at X to praise Argentina’s self-described anarcho-capitalist President Javier Milei, blast Venezuelan strongman Nicolás Maduro and boost President Luiz Inácio Lula da Silva’s biggest rival in Brazil, former President Jair Bolsonaro, a populist dubbed the “Trump of the Tropics."

De Moraes is now a frequent subject of Musk’s X posts, where he has been called “Brazil’s Darth Vader" and “the dictator of Brazil, NOT a judge."

“He has supreme executive, judicial and legislative power, aka dictator," Musk posted on X after the ban. “The cloak he wears is to trick fools in the West into thinking that he’s a judge."

Musk and de Moraes’s myriad critics, many from the country’s right wing, aren’t the only ones accusing him of overreach in banning X. Leonardo Barreto, an independent political consultant in Brazil’s capital, Brasília, called the move “completely arbitrary," putting Brazil—a democracy of 203 million people—on a list of countries that have banned X that includes North Korea, Iran and Russia.

Barreto said the court could have cracked down on false information without banning the entire platform, especially a month away from municipal elections in Brazil.

“The dose makes the poison. If a doctor gets the dose wrong and kills his patient, he is held responsible," said Barreto. “What about a judge?"

Aílton Soares de Oliveira, a São Paulo constitutional lawyer who said he considers de Moraes a friend, said the justice made a “categorical error" in freezing not only X’s assets but also those of Starlink, Musk’s satellite-internet company—a decision that “violated the principle of proportionality and reasonableness."

The Supreme Court said it has acted in accordance with the constitution, saying that the ban was a necessary measure to counter “hate speech, Nazism, fascism and the incitement of anti-democratic acts." De Moraes and Musk didn’t respond to requests for comment.

A five-member panel of Supreme Court justices voted unanimously to uphold the ban this week, but conservative Justice Nunes Marques said he would call all the court’s 11 members to review the case in a coming vote.

Many Brazilian jurists agree that Musk is guilty of flouting laws in Brazil, questioning why he has refused to block accounts here while complying with similar orders in India and Turkey. Da Silva has championed de Moraes as an example to the world on how to deal with Musk.

But the showdown with Musk over X and Starlink is a major test for de Moraes.

Most of de Moraes’s orders in the case have been sealed, but Musk has posted what he says are copies on X. The alleged orders show de Moraes calling for X to block the accounts of prominent figures on the right, including Nikolas Ferreira, the lawmaker with the most votes in the 2022 elections.

While the document doesn’t explain why Ferreira’s account should be blocked, the Supreme Court has been investigating the congressman for calling da Silva “a thief" during a meeting this past year at the United Nations in New York.

“X doesn’t even know the reason the accounts were blocked, greatly harming its right to appeal," the platform said in the statement posted by Musk.

The controversy has stoked tensions in Brazil. Thousands of right-wing supporters of Bolsonaro—the main target of de Moraes’s campaign—are set to protest Saturday on Brazil’s Independence Day and call for the judge’s impeachment.

“When a court abandons the principle of impartiality and chooses who to investigate, judging them before hearing them…we are violating citizens’ basic rights and putting our justice system at risk," said Marcos Rogério, a right-wing senator.

Some 29% of members of Congress support the impeachment of de Moraes, 19% are against and the rest are on the fence, according to Votos Deputados, a site monitoring voting intentions in Congress.

Ordinary Brazilians are also losing their patience. Even before de Moraes shut down X, with more than 21 million users in the country, some 56% of Brazilians said the judge “had gone too far in recent years," in a Genial/Quaest poll in May. About 27% of respondents disagreed.

De Moraes, a 55-year-old former justice minister and professor, has antagonized both the left and the right for what critics say is a hotheaded and heavy-handed approach to the law with little regard for protocol. His supporters call him courageous.

His sudden appointment to the Supreme Court in 2017, following the death of his predecessor in a plane crash, turned him into one of Brazil’s most powerful men.

Brazil’s Supreme Court already enjoys wide-ranging powers because of the country’s extensive constitution, which at 64,488 words is 14 times longer than that of the U.S. and one of the most detailed in the world. That allows justices to intervene on a vast range of issues, from disputes over individual parking fines to debates on abortion, giving them the final say on almost every aspect of life in the country.

De Moraes has pushed that prerogative to the limit, jurists say.

His collision course with Musk on speech issues began in 2019, when he was tasked with policing the internet.

Bolsonaro had just taken office and the court said it was facing vicious attacks online from his supporters, who saw the court’s left-leaning justices as the biggest threat to the country’s new conservative agenda. Da Silva was in jail for corruption and money laundering, but thecourt changed its rules on who could be imprisoned, freeing the leftist and later annullinghis convictions, to the outrage of the right.

Typically, police or public prosecutors investigate the kind of attacks—online or otherwise—judges were facing. But Dias Toffoli, the court’s then-chief justice, issued a one-page order in March 2019 to dramatically expand the court’s powers and allow it to open its own investigation, christened the “Fake News Inquiry." Toffoli handpicked de Moraes to head it, effectively making him accuser, investigator and judge.

As the Supreme Court opened more investigations into antidemocratic acts and what it calls “online militias"—organized groups of people accused of spreading intentionally false information—de Moraes took the probes under his wing, arguing they were all connected. The court typically distributes each inquiry at random to different justices.

It was with this authority that de Moraes began investigating posts on X. Last month, he wrote in a ruling that he told X that users had broken article three of Brazil’s 2014 law governing the internet by publishing police officers’ personal information.

But what about the other orders, Musk asked on X Thursday. “He censored so many accounts that had broken no law. Why?"

Write to Samantha Pearson at samantha.pearson@wsj.com