"How Brazil's Justice de Moraes Weaponized Liberal Philosophy and the First Amendment Against Free Speech"

An interesting post by Jacob Mchangama (Vanderbilt) and Jeff Kosseff (US Naval Academy). A brief excerpt:

In 2019, Dias Toffoli, then-Chief Justice of Brazil's Federal Supreme Court, appointed fellow judge Alexandre de Moraes to lead an inquiry to investigate "fake news, false reports of crimes, slanderous reports, threats, and other infractions" that "affect the honor and security of the Federal Supreme Court, its members, and family." De Moraes soon dramatically expanded the scope of his powers to include "fake news" and propaganda aimed at democratic institutions more generally, with wide-ranging consequences for political speech in Brazil.

By 2022, when appointed President of the Electoral Court, de Moraes received expanded authority to police political speech during elections to prevent the "distribution and sharing of knowingly untrue or gravely decontextualized information affecting the electoral process". de Moraes' controversial methods have divided Brazilian opinion — some see him as a defender of democracy, others as the censorial Grand Inquisitor of the Brazilian public sphere.

De Moraes most recently made headlines with his suspension of conservative social media platform Rumble for allegedly allowing the dissemination of misinformation. We're not qualified to comment on de Moraes' application of Brazilian law, but it's worth noting that de Moraes' decision goes to great lengths in defending the blanket ban against Rumble based on principles of liberal philosophy and foreign legal standards, including First Amendment jurisprudence. But in doing so de Moraes manages to mangle John Stuart Mill and misrepresent U.S. free speech law.

The whole thing is much worth reading.

Comments

[Bored Lawyer]

We have to destroy democracy in order to save it.

[Martinned2]

If what the US is doing now is saving democracy, you can keep it.

[tylertusta]

Your terms are acceptable: we'll keep our democracy.

Now you shut up and stay on your side of the pond, and I'll shut up and stay on my side.

[David Nieporent]

and I'll shut up

Promise?

[tylertusta]

Yup. Provided he does.

[Brett Bellmore]

True, how can you possibly save democracy by making the outcomes of elections matter? It's ridiculous. Policy should remain unchanged no matter how the electorate votes!

[Krayt]

I question the asinine policy that is in service to expansionist dictatorship.

The goal isn't to stop deaths, deaths the defenders bravely risk, and deaths the attackers don't care about, on their side or the other. It's to give the expansionist tyrant a win.

Then a few years down the road, I can't wait for the rhetoric you will pass through in nanoseconds, how the rest of Ukraine, or Poland, or the Baltics deserve it, that's their business.

Thanks, Gramps!

[Social Justice is neither]

And here I remember you Leftists applauding Obama the first time around for the same thing. One day you might want to look at reality instead of the fantasy world you fools wish existed.

[Stephen Lathrop]

Bellmore — Your error, as always, is to conflate policy and liberty. You interpret as a triumph of liberty a government run on the basis of your preferred policy. It is the opposite, unless you are willing to concede a government structured likewise, which empowers policies contrary to your own.

Liberty must be cast into the structure of government, not pursued capriciously from policy to policy.

[Brett Bellmore]

I wasn't talking about liberty, though, I was talking about "democracy", because that's what Martinned2 was talking about.

"Democracy" isn't liberty, it's one way of deciding how liberty will be violated. It's completely orthogonal to liberty.

[Stephen Lathrop]

Nope. More conflation.

Democracy is one of the options which liberty affords. Once again, you keep trying to constrain liberty to government choices you prefer, and rule any others out of bounds.

What should be out of bounds? Choices of government styles which preclude future liberty to do otherwise.

Thus, if as I suppose you might prefer, minority government were established, ostensibly on the basis of rights enjoyed by members of a ruling minority—the key question would be how durable are those rights, under whatever constitutional scheme has been empowered to vindicate them? If the answer is, absolutely permanent, and no other scheme of order is permissible, then no matter what you would call that regime, liberty is not part of it.

[Riva]

Just curious Steve, do you agree with de Moraes?

[Swede425]

Thanks!
We will.

[Martinned2]

We're not qualified to comment on de Moraes' application of Brazilian law

[tylertusta]

Since Justice de Moraes is spreading "gravely decontextualized information" on the 1st Amendment, then it's only fair to deplatform him and censor his speech.

[Michael Ejercito]

How does misinformation harm democracy?

[Jaypd]

- gestures vaguely all around -

[Krayt]

And how does censorship, and government acting as arbiter of truthiness of speech spoke against it harm democracy?

Wildly gesticulates at the entire surface of the Earth, and all human history.

We wouldn't even be in this position but for censorious dictatorship in Russia.

The UK, currently standing up for what is right with Ukraine, is engaged in censorship with their other hand, fancying the outcomes of their election can safely wield the power of tyrants.

[Jaypd]

Entire western world: fighting pitched battle with neofacists

Volokh and co: Is being a useful idiot to Hitler what the constitution really wants?

[Swede425]

Fighting pitched battle with neofascists = arresting grandmas for praying and people posting memes on the internet.

Great job! You're almost there!

[damikesc]

Irony: The majority of the western world fighting "neofascists" are doing so...by becoming fascists.

[Krayt]

FYI, you drooling subservient sacks of shit, Trump has no authority to "leave NATO". The Constitution, and treaties, are the supreme law of the land. He cannot unilaterally abandon it.

[TwelveInchPianist]

"Entire western world: fighting pitched battle with neofacists"

We're not fighting a pitched battle with anyone. Well, except Ukraine. We're giving enough aid to make ourselves feel like we're helping while avoiding the level of risk that comes with actually fighting.

[Sarcastr0]

To speak more generally about America's new condemnation of our former allies across the world.

I like America's robust 1A, but I also understand countries in Europe drawing the line on the paradox of tolerance differently. I may disagree, but calling the Germany a tyranny or whatever is silly. Reasonable minds can differ, especially given divergent historical experiences.

A larger discussion of how much doing it exactly the American style is required to count as a free country might be useful to have. Because right now it just seems like we're yelling at everyone.

[Bob from Ohio]

"calling the Germany a tyranny or whatever is silly"

Calling America a tyranny or whatever is silly also. Correct?

[Malika the Maiz]

Long live the King!

[TwelveInchPianist]

Sigh. Yes, calling America a monarchy is also silly.

[Krayt]

Go listen to the UK PM's address and questions from the past few days.

Go listen to the Canadian PM's speech going on right now.

We are kicking our allies, and throwing in with a tyrant.

[damikesc]

"A larger discussion of how much doing it exactly the American style is required to count as a free country might be useful to have. Because right now it just seems like we're yelling at everyone."

So, with no free speech, one can still be a free country?

What, EXACTLY, does the modern Democrat Party oppose of the Nazi ideology? Cannot even say the Jew hatred for a large segment of the party's base.

[Malika the Maiz]

A silly comment by a silly Russian beta-cuck.

The US has no absolute right to free speech under current 1st Amendment law. There are exceptions for defamation, obscenity, trade secrets, incitement, etc., etc. Other countries have different exceptions.

And your second paragraph is Godwinning buttery, there’s a party that has some agreement with the nativism, militarism, law and order facets that were foundational to Nazi ideology, it ain’t the Democrats.

[Malika the Maiz]

It changed nuttery to buttery, that actually sounds better!

[TwelveInchPianist]

"Other countries have different exceptions."

Yes, other countries (in Europe) arrest people for praying.

[TwelveInchPianist]

"I like America's robust 1A, but I also understand countries in Europe drawing the line on the paradox of tolerance differently."

Personally I think were they draw it now violates fundamental human rights, although not as much as where they drew it several years ago.

But hey, I guess people can have different opinions.

"especially given divergent historical experiences."

You see, we tried to exterminate the Jews, so now we have to imprison people who criticize the government's immigration policies. That makes sense to some people.

[Malika the Maiz]

Maybe he thinks “He who saves his Country does not violate any Law,"

[Lee Moore]

Malika seems to have forgotten that this nation was founded in treason, by lawbreakers and revolutionaries. There are no doubt several peoples who can, without hypocrisy, prose sanctimoniously about devotion to the existing laws. Americans are not among them.

https://www.archives.gov/founding-docs/declaration-transcript

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

[Darwinnie]

There is a process in the Constitution for doing just that. There is no basis for an armed rebellion here like so many of the MAGA crowd want.

[Lee Moore]

Facepalm

Talk us through the provision in the British law book that made the American Revolution lawful.

[Stephen Lathrop]

I have no desire to argue free speech philosophy, nor any intent to take on John Stuart Mill. I do want to unpack a bit the question whether the historical approach relied upon in the OP copes adequately with media transformations which lately revolutionized the structure of our habitually beloved, "marketplace of ideas."

The elegant precepts of Mill, Holmes, and Brandeis knew nothing of platform oligopoly, surveillance-based media, algorithm-driven news feeds, AI-driven deceptions, or liability-free world-wide publishing, available to everyone, at no cost, without prior editing. From the point of view of the august authorities relied upon by the OP, all those transformations lay in the unknowable future. It has turned out to be a future with which Mill, Holmes, and
Brandeis reckoned very little.

A question arises. Does any of that make a difference, or are philosophical precepts so long-proven, and wisely relied upon, all that remains needed now?

One relevant answer is to insist the obvious—that aggregate change in the marketplace of ideas since the days of Brandeis and Holmes has all but driven into oblivion most aspects of the erstwhile marketplace itself. I think we are challenged now to weigh the question whether the laws and norms developed to suit that lost edifice apply with equal wisdom, justice, and utility to the far different present-day edifice which has replaced it. It would be a miracle of happenstance if it were so.

Does that mean nothing of the past ought to be preserved, and everything started over from scratch? Of course not. Indeed, to indulge a presumption of complete novelty will prove as unwise as to insist on continuation without change.

Marketplace fundamentals—opinions to be shared, facts to be gathered, means of dissemination, curation of audiences, material means of support for marketplace activities, liberty from motivated interference by governments or otherwise—remain as salient as ever.

Problem is, novel new means created willy-nilly novel new disruptions to those fundamentals. To recognize that is to answer the question whether the old norms and laws continue to serve adequately today. The answer must be, "no"; but it must be a, "no," hedged by caution.

To adopt instead a less cautious precept of complete novelty, implying as it does opportunities to reinvent from scratch the notion of public life, invites disruption of some of those fundamentals, or all of them. Customary reliance on public life is too important to invite root-and-branch revisions. But alas, so much has for so long depended on that reliance, that opportunists who formerly felt constrained, may now regard breakdown as opportunity.

On that basis alone, novel solutions ought to be resisted. Better yet, proposals which as much as possible seek transformation in accord with the formerly practiced fundamentals ought to be encouraged. What cannot work, however, is narrow reiteration of every antique precept, without evaluation whether recent evolutions affecting the present edifice have damaged needed capacities among the fundamentals, as they surely have.

It is within that scope that opportunity to take best advantage of new technology ought to be explored, with an eye to improving efficiencies, and to multiply expressive opportunities for all. That must be done, however, while taking as much care as possible to continue reliance and nurture of the public virtues espoused by Mills, Holmes, and Brandeis. I expect that effort to take a long time, and to deliver repeated frustrations before finding its way back to something more like stability.

[Riva]

Stability? And who the f gets to define this stabilty? The government? One out of control judge? Democats who feel threatened by opposing points of view? Such stabilty is the opposite of freedom.

[Ed Grinberg]

Such stability is the opposite of freedom.

Indeed.
https://reason.com/volokh/2024/07/22/nina-jankowiczs-libel-lawsuit-against-fox-news-network-dismissed-by-federal-judge/?comments=true#comment-10654693

[Noscitur a sociis]

Remember folks, Stephen Lathrop actually tries to claim that he not only supports freedom of speech, but is its biggest champion in this forum.

[Stephen Lathrop]

Noscitur — I do almost claim what you say. One of the more persistent champions would suit me better.

Disagree? Why not posit a critique. See if you can make it write.

Try to stick to specifics. Avoid collapse into mush and evasions. Set forth your ideals. Outline their limits, Specify potential sources of opposition. Show how to overcome them. Detail the practicalities and activities necessary to keep it all going.

I look forward to a productive discussion.

[Darwinnie]

Up vote. This is what the earlier discussions about treating social media as common carriers missed. These are entirely new creatures and require new first amendment balancings.

[Darwinnie]

Meant for a reply to Lathrop’s post.