Shutting off Elon Musk won’t help Brazil’s democracy

By Juan Pablo Spinetto

X has finally gone dark in Brazil — which joins China, Russia, and North Korea in the dishonorable club of countries that ban access to social networks.

The extreme measure ordered by Supreme Court Justice Alexandre de Moraes last week — and unanimously ratified by a panel of the top tribunal on Monday — comes after the company’s refusal to name a legal representative in the country, as demanded by legislation, and the shutdown of operations a few days earlier. But more broadly, it’s the result of months of increasing tension between the high-profile justice and X’s volatile egomaniac owner Elon Musk.

Judge de Moraes has been leading the court’s offensive against hate speech and misinformation, forcing X and other social media companies to block Brazilian users including politicians and other influencers whom the justices have deemed as a danger to democracy. Musk’s refusal to comply with the latest legal requests ended up in X’s closure.

Sadly, this disproportionate penalty is bad for everyone: It doesn’t prevent the propagation of hate speech, which is theoretically the judge’s goal, because X is just one of many platforms operating in Latin America’s largest economy; it hurts the company in one of its main markets, with more than 20 million users. And more fundamentally, by taking away a tool that Brazilians have used to inform and express themselves freely, it punishes blameless users who aren’t part of this legal imbroglio. With key municipal elections a month from now, X will not play its usual role as a means of communication and political messaging — another reason to see this shutdown as a loss to Brazil’s democracy.

Moreover, by putting Brazil in the same basket as authoritarian governments that fiercely punish any sign of speech dissent, the decision has tarnished — fairly or not — the country’s reputation. Those arguing that Brazil’s Supreme Court has been abusing its powers and improperly interfering in politics found strong new evidence with this ruling. Judge de Moraes’s threat to impose a daily fine of 50,000 reais (about $9,000) to anyone accessing X through encrypting systems while at the same time going after Starlink — Musk’s satellite internet company — smacks more of a personal vendetta than a cohesive grand strategy against damaging misinformation. The result is to diminish the credibility of Brazil’s powerful judicial bureaucracy, something that should worry its top judges.

This is just one of many recent instances when Brazil’s top court has overstepped its mandate. The country’s intensifying polarization, culminating in the assault on Brasilia early last year, saw the judges accumulate more power with each action they took. On the one hand, they defended the constitution and political system from destabilization and a possible insurrection; on the other, they also triggered controversies including the dismantling of the Lava Jato corruption investigation and the repeated censoring of political voices.

Seen in that light, the decision to remove X from Brazil’s public life is like opting to tape shut everybody’s mouths for fear that a group of insurgents may say something threatening. That’s excessive and unacceptable in a messy but vibrant democracy.

To be sure, the debate over how to weigh the right to freedom of expression against the perils and injury of hate speech remains complex. All around the world, governments and companies are trying to calibrate policies and responses and grope toward a common understanding of rights and responsibilities. Just in the last few days we have seen France arresting and charging Pavel Durov, the founder of Telegram, for complicity in spreading crimes through his messaging application, and Meta Platforms Inc. chief executive officer Mark Zuckerberg regretting the company’s decision to censor Covid-19 content under pressure from the US government.

How far can freedom of speech go before metastasizing into an individual or institutional menace? The answer is not uniform, and not every country has the free speech protections the US enjoys (and even those seem to be increasingly open to question); regulation of content on social media requires deep discussion and collaboration among politicians, experts and tech operators. The world should pay close attention to how Brazil handles this situation for clues on how to solve, or further complicate, one of modern governing’s most intricate policy riddles.

Unfortunately, Musk seems to be more interested in using Brazil as a prop in his freedom of expression crusade (while refusing to follow the local legislation that he duly accepts in other less democratic countries). But as my colleague Adrian Wooldridge recently argued, Musk’s absolutist perception of free speech is deeply flawed: By giving equal treatment to unverified rumors or even patent lies next to respectable news sources all in the name of freedom of speech, X harms users and democracy more broadly.

Musk’s decision to express support for the right-wing positions of groups close to former president Jair Bolsonaro is his right. Yet his gross hyperbole and political activism, including calling de Moraes a “tyrannical dictator” or “pseudo-judge,” and equating Brazil with a dictatorship, take things to a different level.

That kind of language reinvigorates more extreme views and provides inspiration and encouragement to those agitating in favor of regime change. It’s also disrespectful and cynical. I’ll wait until Musk says something similar about a SCOTUS judge or his Chinese partners before putting any stock in the sincerity of his intentions. After so many months of controversy, you would think Musk could at least correctly spell the surname of Judge Alexander correctly (it’s Mo-ra-es, not Moreaes).

Nevertheless, the fact remains that Brazil’s Supreme Court should have known better and avoided scoring an own goal. Forcing Brazilians to seek alternative platforms to debate ideas as if they were living in a modern version of Radio Free Europe is wrong. Echoing Nicolás Maduro’s message, who recently justified shutting X down in Venezuela because it “incites hatred,” is not where Brazil should be. For his part, Musk should at least comply with the law and appoint a legal representative for X in Brazil.

That might be enough for Judge de Moraes to climb down. Because as things stand, every day that X remains shut in Brazil is another blow against his credibility, the country’s judiciary writ large and the democracy that all Brazilians now enjoy.