Podcast: Brazilian Judge Orders the Suspension of Elon Musk's X

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The billionaire owner of the social media platform X, Elon Musk, has been in a prolonged dispute with a Supreme Court Judge in Brazil regarding X’s content moderation practices. Earlier this year, Judge Alexandre de Moraes launched an investigation into X after Musk defied a court order to block accounts that supported former right-wing president Jair Bolsonaro and were accused of spreading misinformation and hate speech.

On Friday afternoon, August 30, following a standoff over an order requiring X to appoint a new legal representative in Brazil, the Judge issued an order to suspend X in the country.

Just before the order was issued, I spoke to three people following the situation closely from Brazil: Laís Martins, a journalist at the The Intercept in Brazil; Sérgio Spagnuolo, executive director & founder of the data-driven tech news organization Nucleo Journalism; and Dr. Ivar Alberto Hartmann, an associate professor at the Insper Institute of Education and Research in Brazil.

Below is a lightly edited transcript of the discussion.

Laís Martins:

Hi, I'm Laís Martins. I'm a Brazilian reporter with The Intercept in Brazil, and I've been covering tech for about four or five years now.

Sérgio Spagnuolo:

My name is Sérgio Spagnuolo and I'm the executive editor of Nucleo Journalism in Brazil, which is a website that covers technology and digital platforms.

Justin Hendrix:

I feel grateful to have the two of you on the line today. As the world of tech policy is focused on Brazil and this conflict with Elon Musk has been roiling but appears to be coming to a head as we go into the weekend. What is the current situation?

Laís Martins:

So, I think, right now, we're all waiting for the ban to take force. What we know of last night is that the deadline that the Supreme Court Justice Alexandre de Moraes gave to Twitter to appoint a legal representative in Brazil ended around 8:00 p.m. last night. And it was funny, because I think everyone thought Twitter would just stop working at that moment, but we know that it takes a while, because first, they have to order the operators, or first they order the telecom authority in Brazil, and then they're going to order the operators. And this could take up to one day or even a bit longer, because we're heading into the weekend. So I think, everyone right now is just... Every time I pick up my phone and open Twitter, I try to refresh it, and it still works. I'm like, "Okay, it's still there." But, yeah, the mood right now is waiting for it to end. So people have been very revealing on Twitter. They're posting secrets, what they want their last tweets to be. But officially, we're waiting for this order, or the ban to take effect.

Justin Hendrix:

So Sérgio, I might come to you and just ask you if you would characterize for us the arguments that are playing out over this. I see on one extreme, various far right actors and supporters of Elon Musk who are claiming that Brazil is now a dictatorship. And, on the other side, of course, folks who are convinced that this is the rule of law asserting itself over a tech oligarch who doesn't want to do what democratically elected governments tell him to do. What are you seeing out there, in terms of the spectrum of the debate?

Sérgio Spagnuolo:

Brazil is not a dictatorship. Right? Especially because if it were a dictatorship, it would come from the executive branch, and the armed forces, and stuff like that. And, what we are seeing here is overreach of the judicial system in many ways. But with the acknowledgement of several other justices, there's a group of justices, and we call them ministers here, but there's a group of judges that has been agreeing with what Alexandre de Moraes has been doing in his rulings. But yeah, we cannot say it's a dictatorship. It isn't. It just isn't, as much as the far right wants people to believe that.

That being said, the left is also very permissive with what Alexandre de Moraes has been doing, right? This has been a very strange judicial case in many ways for many years right now. There has been a lot of judicial overreach with the judicial system and stretching its arm longer than it should sometimes. Some people say, it was necessary during the elections, because of all the anti-democratic rhetoric and actions that were happening at the time of the election and even some months after the election. Some people say that that might be what they call some necessary evil thing. But, it's true that a lot of people in Brazil right now, even people that agreed with and went along with what happened some years ago when the judicial system were very harsh on the anti-democratic rhetoric. Even now, some people that agree with that are very concerned about the ways things are turning here. There's a middle ground in there. Twitter has been allowing a lot of wrongdoing in its platform. It's not moderating. It doesn't have a legal representative in Brazil, which in its case, it's a legal necessity.

But at the same time, the way things have been occurring here, it's very weird. The official communication sent for the platform was made through some social media posts, which is unheard of in the history of the Supreme Court in Brazil. And at the same time, the Supreme Court said it had notified Twitter's lawyer in the country some days prior and it felt the need to reinforce that through social media. So, it's a very weird situation and it's unprecedented actually. So, people are very passionate about this right now in Brazil, even the right and the left, but we cannot agree. It's a very unprecedented situation in the way things are moving here in Brazil right now.

Justin Hendrix:

So not a clear cut situation at all. Getting struck by UC Irvine Law professor and former UN special rapporteur on free expression, David Kaye, wrote on Bluesky, the Twitter alternative that, "Musk has only himself to blame for this mess which will harm Brazilians who still use X Twitter for public discourse." So, clearly, he's looked at the situation, weighed what's happening there, and ultimately decided that if there's someone to pin the most severe blame to, it's Elon Musk. Is that a point of view that you're seeing out there?

Laís Martins:

I don't know if I'm really seeing, but I do agree with it. I think, there are ways that Elon Musk could have pushed back in discourse. But being the law, right? Because, I always try to put it the other way round. Imagine if the CEO of a Brazilian platform that is popular in the U.S. defies court orders, or defies orders from the House Committee, or just post a tweet where he compares the house speaker to a bad character from Star Wars, because that's what Elon Musk is doing. So if we put it the other way around, it's absurd. So I think, and I've been speaking to people who say this, that Elon Musk did have the chance to challenge these orders at the same time that he's obeying them and not putting Brazilian Twitter at risk, right? Not leaving people without Twitter. Because, in fact, Twitter is really important in Brazil. And I think, leading up to elections, it's a very important platform.

Maybe us as journalists, we overweigh the importance of Twitter, but I do think it's an important platform for political discourse, and we're not going to have it during the October elections. And I think, Elon Musk is to blame for that, because this final event of this conflict between him and the Supreme Court is just the last straw of something that has been building up for months and months. He did have the chance to appoint a legal representative. He could have paid the fines. He chose not to do it.

So, I do agree with Sérgio when he says that many of Alexandre de Moraes decisions are questionable, I think, especially in the context of how he looped Elon Musk into the investigations that were already ongoing. It's really complicated and messy, even for us who have been following these investigations for four years. That's really questionable. But I think, this last decision is just... There's nothing else that could be done right now, other than ordering the ban, right? So, it's sad. I'm actually sad that we're not going to have Twitter. For me, it's a very important social media in my work as a journalist, leading up to a elections, covering elections now. So, I'm actually sad. But yeah, I think he's the one to blame mostly.

Justin Hendrix:

You feel fairly certain that the ban will go through at this point?

Laís Martins:

Yeah, I do, because otherwise, last night Twitter posted on its global affairs account that they were not going to comply with the order. And something interesting... I don't know if you're going to bring that up later, so sorry, but Starlink is quite popular in Brazil at the moment, right? And he sent out this notice to Starlink customers saying that they were going to continue offering the service in Brazil freely, because maybe the payments are not going to be processed, because their accounts are frozen in Brazil per a court decision. But he also used that email to attack the Supreme Court again, to defy the Supreme Court order saying that it's unconstitutional and it could have just been an information, "Oh, we're going to keep on with the service." Right?

So I think, yeah, both the global affairs tweet from last night and the Starlink show that this is not the end of his defiance of the Supreme Court. And, I'm very curious to see how he's going to use Starlink to keep pushing that conflict with Alexandre de Moraes from now on. But I'm pretty confident that the ban will go into force, that we're not going to have Twitter starting maybe from tomorrow or early next week.

Justin Hendrix:

I suppose I'd add to your example of Musk tweeting out this image of the justice as a Star Wars villain. He also posted a manipulated image that appeared to show him behind bars, with the comment, "One day, this picture of you in prison will be real. Mark my words." So, really an extraordinary thing for the owner of a social media platform to tweet at a judge. Sérgio, you've been following this for a long time. If we go back to what happened in Brasilia, the role of Twitter there, and the ins and outs of the attempt to investigate who was responsible and who participated in that attack, what does this mean for that effort? Does this mean that the government will be impeded from carrying on that investigation in some way, or are we beyond that?

Sérgio Spagnuolo:

No, I don't think the government will be impeded in carrying on that investigation. One thing that's important to notice is that as overreaching as it might look from the judiciary here, this is a panel of 11 judges. And, the actions of each judge, we call them monocratic decisions, right, they can be overturned, overruled by a panel of judges, right? So it's not, "Oh, I'm going to decide this with no consequences whatsoever." That being said, Alexandre's decisions tend to be kept by the panel. He has the trust of the majority of the other justices. I think this is a good thing to say here, given that, there's all this talk about dictatorship and putting him behind bars, all this stuff. The U.S., especially Musk, tend to have this North American vision of democracy that applies to every other country in the world, right, which is not true. We have a different constitution. We have different set of laws. Our Supreme Court works different and our government works different, although there are similarities.

So, when Musk is doing all that, he's only thinking how the U.S. work. We cannot have a Nazi party in Brazil, right? It's legally forbidden to create a Nazi party here. But you can have people in the U.S. with Nazi flags and doing Nazi propaganda for some reason, right? Because your constitution allows that, right? Musk is trying to put his vision of the U.S. democracy here, which is not the case, and it's a very far-fetched approach. I disagree with Laís a little bit, who said that Twitter might go down because of its represented for news, what it's represented for news over the past 15 years maybe. But, the way it is now, it's just not good. It is just not healthy for democracy at all. I think it's suffering the consequences of all the decisions its owner made and kept doing for some political gain that he wants.

But coming back to your question about the January 8th and the investigations that are happening here, it's very important to notice that this investigation apparently has no end. Alexandre de Moraes has kept this going for a long time and has been doing a lot of his overreach of the judicial system through this investigation, which is worth saying, it's not an investigation from law enforcement authorities, it's an investigation from the judiciary by itself, which is a very rare thing, right? Usually in Brazil, investigations come from law enforcement. And, in this case, the judiciary by itself, the supreme court by itself is investigating. So, I have no idea what will happen right now around those investigations, but they seem to keep going with no end in sight.

Justin Hendrix:

Let me ask you about the legislative situation. I know Brazil has tried to advance a fake news bill. There's been some talk about rethinking the intermediary liability law that you passed, which was hailed at the time around the world as a great example. What's going on in your legislature? What can we expect?

Laís Martins:

Our fake news bill was thrown away. So, last April, it was the last time it was attempted to be put to vote, and it did not get enough votes to pass or it wasn't even put to vote, because they understood it wasn't going to pass. And, since then, it just stopped. And a few months ago, we had the president of the Chamber of Deputies in Brazil, he literally said that he was going to throw that one out and start all over. It was really disappointing. Civil society in Brazil was quite mad about it, because all the work that was put into that previous version, all the debate, the back and forth, the pushing against the lobbying of big tech, that all went to waste, right? And now, he put this group together of people who, yes, are knowledgeable on the topic but don't have the experience that the previous group had to put together a new bill.

I think it's important to say, that previous version wasn't perfect, but it was the best that we could get after four or five years of very intense debates. And, I don't want to put the blame entirely on the companies as to why the bill didn't move forward. But, I think there were two facts that are very relevant in explaining why it didn't get enough support, which are, Google and Telegram, and they're both being investigated for that, they abuse their power, right? So Google ran on its homepage in Brazil a small banner, or not so small, because it was right under the search bar saying that, "Yeah, the fake news bill in Brazil is going to change the internet as we know it." I think this was the way they worded it. And people could click, and then it would open up a big page, which was a manifesto explaining their vision on what the fake news bill would cost.

And Telegram sent out a message to its entire user base in Brazil saying something similar that the fake news bill in Brazil if passed would change people's access to Telegram. I don't exactly remember the wording. But, we cannot ignore the power that these two small actions had in how the public viewed the fake news bill in Brazil. So that was the end of the story. We don't know what's coming up yet on the front of this new group that has been formed in Congress. In parallel, we also have AI regulation moving forward. So right now, it's really a mess. And I think, the lack of regulation obviously contributes to this argument that the Supreme Court is overstepping the line, or that Alexandre de Moraes is being an authoritarian. If we had had regulation in place by the time that we had the 2022 elections, all this wouldn't be happening, because I think he was pushed to act because of the lack of regulation.

So the Supreme Court, back then the Supreme Electoral Court, which was presided by him during the election period, they had to take action given the lack of regulation, and this paved the way for many people to call them authoritarians, or even to say that they weren't acting under the rule of law. So I think it's just a story of how things could have been very differently had we passed regulation, but we didn't. And now, we're in this mess that we all created. So yeah, it's not a very positive scene for regulation perspectives in Brazil. And also, regarding AI, it's the same, it's lots of pushback from the companies.

Sérgio Spagnuolo:

On that note, I think it's important to just add that we're back to square one basically on the regulation of these platforms that will come from the cause of representatives here in Brazil. But at the same time, we are giving time for the big tech companies to reorganize and do their lobbying. And I think this is one of the main reasons this hasn't gone forward yet. They are doing very aggressive lobbying here in Brasilia. So, it's worth noticing that this scenario is very unlikely to change. Anybody that tells me that any regulation was going to come out from the legislative branch anytime soon. I'm very skeptical of this.

Justin Hendrix:

And I understand that coordination probe into Google and Telegram was ultimately closed. So, despite what looked like their attempt to coordinate opposition to the bill, the same judge decided not to pursue it. The other big tech oligarch who's of course in the headlines this week is Pavel Durov, co-founder, CEO of Telegram, who was detained in France on Saturday. I guess, there's also a connection to Brazil on this as well, another platform that was suspended in that country, and then ultimately, that suspension was lifted. Does the situation with Telegram tell us anything about what we can expect with regard to the handling of Musk and X going forward?

Laís Martins:

I think, the current situation with Elon Musk makes us miss Durov in Brazil. I remember, we covered it extensively for Nucleo, right? We thought that was the big problem, but he never took it to the point where Elon Musk has arrived to. So I think, he was never that disrespectful. He didn't take it personally, he didn't personalize it to the judge, and it's easier to believe Durov. I don't fully believe him right now. But, it was easier to believe him back then that he was really doing it for the ideal under which Telegram was built, than what Elon Musk says about freedom of expression. Because, Elon Musk, we can confront him that he has complied with orders from Turkey and India, and I think, Durov was at least a bit more coherent worldwide in terms of how he viewed court orders. I think the ultimate takeaway from the Durov case is, he pushed it to the limit, but eventually, he complied.

And, I think it was a good exercise in seeing how the supreme court also leveraged their power. Maybe it was the first time that we saw the supreme court going head-on-head against platforms in that sense. And eventually they won. The rule of law won in Brazil. And, yeah, it's not as if the platform is perfect right now. Nucleo just published a story this week about how it's become a haven for Nazi content again. I feel that we've read the story again and again. So the platform isn't perfect, but the discussion back then was also about a legal representative, and now we have one in Brazil. So, yeah, a decision was made by the company. Ultimately, they abided to the Brazilian law. And I think that's the difference between Durov and Musk. Maybe Durov weighed that he wanted more the Brazilian user base of Telegram, than he wanted to stick to his discourse or speech. And Musk seems to not care about the Brazilian user base of Twitter. His idea is more important right now. His discourse is more important than anything else. I think that's a difference between them.

Sérgio Spagnuolo:

It is worth mentioning that this is justice that... He follows along with his threats, right? He suspended Telegram. He ordered the arrest of very important business figures, political figures, law enforcement figures even, following the January 8th undemocratic riots. So, this guy is not afraid to follow through with this. This is not an empty threat. It might take a little bit longer to suspend Twitter. It's a very popular social network in Brazil. It's not as big as others, but it helps in the agenda setting of the discussions in Brazil as a whole. And, I don't think he'll take it lightly to suspend it. He'll probably confer with colleagues and other law figures in Brazil. But eventually, if Twitter, X now, does not comply, he will be blocked. The way to do this in Brazil, if you want to know, is the best way, they go through the telecoms regulator, which has direct contact with all the carriers in the country. And, they just start blocking IPs and blocking the access to Twitter as a whole, right? This is something that takes some time to happen.

A lot of people, as Lais mentioned, thought it would be like an instant thing, 8:00 p.m. would be out. But, this takes a long time. First conferring with other legal experts, but also, doing this whole process of reaching out to the telecom carriers and making this happen. But, if Twitter does not comply, and indicate it with all those words, that is not going to comply, we are seeing the social media being taken down in Brazil very soon in the next couple of days or even less.

Justin Hendrix:

I'm grateful to you all for all of that detail and for taking us through that. One last thing I want to ask, it's less important than these other things, on Bluesky, which is a social media platform I've been messing around on, there is reportedly a influx of Brazilians who are looking for refuge and trying to maybe restore their networks elsewhere. What are you seeing people do? Where are people headed off to? I find it almost funny on some level that people are thinking of what their last tweet should be. Where else are people headed?

Sérgio Spagnuolo:

Some people are going to Bluesky eventually, which by itself is a social network, very similar, visually similar to Twitter, which some people might like and might find it easier to migrate. It has a ton of features that Twitter doesn't have, especially around moderation and some control of... And who can DM you or all this stuff. It has a bunch of controls. I just saw that recently because of all this. And, there is a huge influx of Brazilians there. There's also Threads. People are moving on to Threads. And some people are just waiting to see what's going to happen. WhatsApp's still huge. Telegram is somewhat big in Brazil as well, especially in the right. We are going to see a lot of Twitter orphans here very soon, I guess.

Laís Martins:

Yeah, I think, everyone's just waiting to see where everyone heads. And it's been funny, I've been on Threads and Bluesky and it's funny to see the new arrivals. But I also have seen something interesting in some groups, niche, because these are journalists or either people in tech, but people are discussing, "Oh, I don't want to migrate to Threads, because I don't want to be limited to Meta again. Because, what if it happens again? Elon Musk, we saw it happen with Twitter, what if it happens again?" And this is a discussion we wouldn't have seen five years ago about being reliant on a social media that is owned by a foreign businessman. So maybe it's a wind of change. I don't know.

Justin Hendrix:

An opportunity for a Brazilian alternative?

Laís Martins:

Yeah. There was discussion, I think, last week about... And eventually, it got debunked, about Brazilian WhatsApp, because there's this big discussion about tech. So, right now in Brazil, I think it's very hard to convince people to migrate entirely if there isn't a ban like there is on Twitter right now. But I also think, like Sérgio said, many people might just not make the move. I think, a big part of community is going to be lost on Twitter forever. And, that's the part that makes me sad. There are niche communities, there are scientists, artists who were built around Twitter, and maybe you don't start over again in another place.

Sérgio Spagnuolo:

And at the same time, it feels fresh air, right, that you have to follow new people again. And sometimes, you don't want to follow other people that you are following there.

Laís Martins:

It's a clean slate.

Sérgio Spagnuolo:

Yeah. And other times, you can get a new following, and you can just do some different stuff there if you want. It feels a little bit refreshing. I'm got to be honest with you, it feels a little bit refreshing. Part of me don't want Twitter to go out because of many reasons that I mentioned, because of news and stuff like that. But part of me just wants to see what happens. I'm curious about it. And, I'm definitely trying something new in other social platforms that I couldn't do before, because I was clingy to Twitter. I guess, that's the term. I just didn't want to let go. But, now, I feel that it's not even my choice anymore to let it go, so I'm just going to try to embrace someplace else.

Justin Hendrix:

Well, I would encourage my listeners to seek you out on all the social media platforms and certainly to check out your work at your respective publications, Sérgio, Nucleo, Laís at The Intercept. Thank you so much for taking us through the situation in Brazil.

Sérgio Spagnuolo:

Thank you very much. I appreciate you inviting me.

Laís Martins:

Thank you for having us.

Justin Hendrix:

Next, I spoke to a law professor who has been a close observer of the legal and policy machinations behind this event, as well as the people involved.

Ivar Alberto Hartmann:

My name is Ivar Hartman. I'm an associate law professor at Insper in São Paulo, Brazil.

Justin Hendrix:

Ivar, can you tell me a little bit about your area of study? How you come to today's topic, which is, Elon Musk and his battle with the Brazilian authorities?

Ivar Alberto Hartmann:

So for nearly 20 years, I've been doing research and teaching at the intersection of law and technology, that includes regulation of new technologies and especially that's my main area of expertise is online speech, regulating social media for instance. But I've also done a fair amount of empirical research on courts, more specifically, the Brazilian Supreme Court using large data sets. So, I have a lot of experience also as an observer on the Brazilian Supreme Court.

Justin Hendrix:

And that is precisely what is central to the situation right now. Elon Musk in Brazil. What do you make of the supreme court and the judiciary, generally the orientation towards Musk at this moment? We are hearing lots of criticism of the justice in this situation, especially from the right. We're hearing a lot of support on the other hand, for those who feel like he's essentially pursuing the rule of law, and that Musk is to blame. Where do you fall down on that based on your analysis of the legal situation?

Ivar Alberto Hartmann:

I think neither side is being a hundred percent reasonable. So, Musk has been disingenuous in terms of what he claims is his willingness to interact with the court, and Brazilian courts in general, I would say, but especially the Brazilian Supreme Court and the Superior Electoral Court. He is not actually behaving as though he's 100% interested in complying. He seems, in fact, to have a plan to get X to be banned. Why? I don't know. Maybe he feels he could get some political advantage out of that to being able to say that, "Brazil, a dictatorship, banned my social media platform, even though I was just fighting for free speech." Because he certainly, in terms of his briefs, X's briefs in cases here in Brazil, have not followed the routes that you would expect out of a company who wants to comply and wants to stay active.

On the other hand, however, in terms of his rulings for the last five years, regarding online speech, I think, Justice Alexandre de Moraes has made it very hard for foreign observers to know that Brazil is not North Korea. Not only because our constitution has strong protections of fundamental rights, individual rights including free speech, but also because the Supreme Court, since 1988, the current constitution was enacted, has been active enough, I would say, maybe doesn't have a perfect record, but it has been active enough in protecting free speech, including online. And it is only in recent years and especially under Alexandre de Moraes that we've started seeing a number of rulings that were mildly put non-orthodox. They were a little bit outside of the ordinary.

Justin Hendrix:

Do you anticipate that this ban will go into effect? And if so, what are the additional legal machinations that will have to take place in order to see that happen? Are there particular orders to the telecom companies? Is there any more legal process that will occur?

Ivar Alberto Hartmann:

At this point, given what we know, and it's not a lot because Just Moraes makes sure to put the vast majority of cases in this context under secrecy, which is an exaggeration of a normal rule. It's only natural that in some extreme scenarios, in exceptional circumstances, a case for many reasons needs to be under secrecy for a limited amount of time. But, we've seen more, often than not, cases related to the investigation and prosecution of online under Alexandre de Moraes to be secret, more often than it should be.

So, what we know right now is not a lot, certainly less than what as a civil society we should know, as academia, I believe we are entitled to know more. But, given what we know now, I do anticipate that the ban will be in place in a couple of hours or a couple of days. And, what this means is the court will issue an order to several different companies and institutions, above all internet service providers, ordering a list of IP numbers related to X be suspended from the network. So, I think, this will be in effect quickly. And, it won't be a perfect ban in the sense that people using VPNs in Brazil will still be able to use X, but it'll be effective in the sense that the vast majority of X users will have a significant barrier to access that.

Justin Hendrix:

You've written about how the events of January 8th, I want to say, distorted the discussion about free expression and concerns about online missing disinformation and issues around content moderation in Brazil, and the response almost as if it put things out of proportion on both sides of the debate as it were about what to do. How do you think of that event as still shaping this current situation?

Ivar Alberto Hartmann:

I think that continues to shape, but even before that, the Bolsonaro campaign in 2018, his term in office, and then lastly, January 8th, 2023, all of those events have shaped the Brazilian Supreme Court's attitude towards online speech. It has been a very repressive attitude. So it continues to shape that attitude. Those events continue to shape that attitude. What I would say is that a large share of Brazilians, likely more than half Brazilians, in other words, the majority of Brazilians, understood 2018 onwards, 2019, 2020 to be because of Bolsonaro's continuous attacks of democratic institutions. A majority of Brazilians felt that the times were exceptional, that the times were different. And therefore, I think, they tolerated, if not welcomed, an exceptional list of measures by Brazilian courts, especially by the supreme court to counter online disinformation and online hate, which came very often from Bolsonaro's side and from his supporters.

The threat, however, is now gone in many different ways. More importantly, Bolsonaro has been made ineligible. So he cannot even run for anything, any office right now. None of his supporters, including from his family, are now viable as political candidates for the next presidential election. So, you could say, we're not entirely clear from the threat of extreme right-wing politics. But, we are certainly clear of that more delicate period in time. And, even though that's behind us now, the courts and Alexandre de Moraes have not given up those extraordinary measures. They have continued to behave and decide about free speech as though we were under a very exceptional scenario. We're no longer in those exceptional circumstances. And so, I think it's a matter of how long will Brazilians continue to tolerate Alexandre de Moraes the ruling using exceptional measures.

Justin Hendrix:

What's the role of the legislature here?

Ivar Alberto Hartmann:

The legislature has been absent. It has been too silent. We, in 2014, enacted the internet civil rights framework, which was at the time, worldwide, it was a big accomplishment. Since then however, the Brazilian Congress has not been active or even active enough in terms of providing legislation to help courts, to guide courts, and to allow courts to make and enforce decisions that are much needed in fighting this information. In that vacuum, we've seen a specific bill called the fake news bill gain some traction in Congress between 2021 and 2022, but made people say that that bill is now dead. And so, we need to start over. So, the prospect is grim, in terms of Congress actually stepping in and doing what it's supposed to do, and fill that vacuum so that we no longer see as many exceptional rulings by Alexandre de Moraes.

Justin Hendrix:

If you had to step back now and say what would be the ideal circumstance, if Brazil were to get its act in gear perhaps on a legislative front, and perhaps change its posture in the judiciary? Is there an equilibrium to be sought here?

Ivar Alberto Hartmann:

I think there's an equilibrium that is technically viable, but it's not necessarily politically viable. So, we wouldn't need more than two things happen. First, Alexandre de Moraes should terminate the current investigation on fake news that started in 2019. It now has been depicted by justices themselves as an investigation on attacks on the Brazilian democracy, but it started as an investigation on criticism leveled against members of the court, online criticism, which was called attacks, not always something you would call an attack, just basically criticism. So that has been going on since 2019. And, we've seen many people and many instances of expression that have nothing to do with that initial investigation be bundled together, just so that Alexandre de Moraes gets to keep on ruling and being the focal point, concentrating all the power on those mostly individual rules. So, if he were to terminate that investigation, that would be one of two things that would basically help putting an end to this dire scenario that we see in Brazil right now.

The other thing is, Congress clarifying that when social media platforms recommend speech, they're not immune to liability. They are immune to liability when they publish speech, but recommending speech means acting as an editor. And if newspapers in Brazil when they act as an editor, do not have immunity, neither should social media. So that's a relatively... But it's not even a big change per se in legislation in Brazil, because Congress never said that when recommending content, social media were immune. It only said that social media were immune only published user content. And this could come by a court decision actually. The vast interpretation of the law in Brazil right now is that social media are not immune for recommending user content.

Justin Hendrix:

That would certainly be a controversial scenario here in the United States, where I think, this issue has been raised in multiple ways. Let me ask you about just the status and tenure of the judge himself. For my listener's sake, is there any way he ends up in some peril?

Ivar Alberto Hartmann:

He's not in peril right now. And I don't think it's realistic that he ever will be, in terms of his mandate, his tenure.

Justin Hendrix:

Elon Musk says he'll see him in prison.

Ivar Alberto Hartmann:

That's just one of many things that Elon Musk says without much knowledge about what he's talking about. There's no peril to Alexandre de Moraes's tenure at the supreme court. We've seen supreme court justices in Brazil do much more controversial things in terms of their individual rules, than what Alexandre de Moraes is doing now. In recent history, a few years ago, we've had a member of the court individually remove an elected member, which was the head of one of the houses of Congress. And, the court is bulletproof basically. There have been impeachment requests offered against many different members of the court over the years in Congress. None of it was taken seriously by Congress. Nothing is going to happen to Alexandre de Moraes. Even if he keeps pushing the envelope in terms of individual rights, nothing's going to happen to him.

Justin Hendrix:

The other tech oligarch who's in the news for encountering the power of the state this week is, of course, Pavel Durov, the co-founder and CEO of Telegram who was detained in France last Saturday. There was a suspension of Telegram in Brazil a couple of years ago. Is there anything about how that process played out that tells us anything about the current situation?

Ivar Alberto Hartmann:

So, one of the ways in that this relates to Musk and X, is that, Telegram has also been suspended in Brazil in the recent past. And, in both scenarios, suspension of Telegram, suspension of X, which might be in effect in a few hours, it was a court ruling, but it was not a court ruling where the suspension was a punishment for wrongdoing. The suspension came as a result of the company not complying with court orders. And I think, people anywhere in the world can understand that if court orders in any given country are not obeyed, you simply can't have a functioning system. So it's about protecting the process and just the rule of law. So they were not punishments for something wrong. It was not punishment for, let's say, "There was too much disinformation in your platform. I'm now suspending your platform."

Basically, there were court orders regarding specific accounts, specific content, they were not obeyed, they were not followed, and the last resort was really to have that platform be suspended. In the case of Telegram, they decided to comply. They played ball. I don't think Musk has any intent of playing ball, because I think he sees political gain out of being banned in Brazil.

Justin Hendrix:

What do you think these two scenarios tell us about the relationship between democracy and these billionaire tech oligarchs going forward? Is there something fundamentally mismatched about these fellows like Musk and Durov positioning themselves as the defenders of free speech when they're essentially denying democratically elected officials at the same time? Who are the real defenders of democracy here?

Ivar Alberto Hartmann:

We don't have to look at one of these characters and say, "Ha, here's the real defender of democracy." In order to take into account that the majority of social media platforms do comply with court orders in Brazil. So, Telegram, and now more recently X, are not the rule, they are the exception, in terms of respecting the rule of law. The other thing is, it's not up to Musk or anyone else to fail to comply with a court ruling as a way of criticizing that court ruling. He has been allowed to post, and talk about, and criticize the Brazilian Supreme Court and Alexandre de Moraes. And I suspect that would continue. I hope that will continue, that he has been allowed to do that under the Brazilian law. But, failure to comply with a court order is not the way to go. That's simply incompatible with the system. So fortunately, that is the exception, not the rule. I would say, we don't need to find a hero, someone who's the actual protector of the Constitution. We just need to be aware of who the enemies are.

Justin Hendrix:

What do you see American or European commentators saying about this situation that feels off to you?

Ivar Alberto Hartmann:

First of all, a disclaimer that I should have provided you with at the very beginning, which will obviously now be retroactive. Alexandre de Moraes was my co-author in a research report in 2016. We haven't since talked, but still. I think, one relevant aspect of his background that I would wager the vast majority, 99% of foreign observers, don't know, is that, his career was not... Because you see him now battling Bolsonaro and Musk, you might assume that he is a left-wing leaning former human rights lawyer who has been protecting... He was a prosecutor at the beginning of his career. He was then in politics and the executive branch in different places, governments with right-wing governments, but those were center right-wing governments. And lastly, he was Minister of Justice. Before he was appointed to the Supreme Court, he was minister of Justice of a right-wing government, which substituted Juma Rousseff when she was impeached. And, that government was heavily criticized and hated by the Labor Party. And that's the government that led Alexandre de Moraes to the Supreme Court.

Part of what's important here is that the Labor Party is not the political party or group that has most suffered since Bolsonaro came into power. The party that has most suffered is the PSDB, the center right-wing party, which was always the one competing with the Labor Party for 20 years to elect the president. And, it's the party that, I would say, Alexandre de Moraes was mostly associated with before he became a member of the court. So, if there is some... And I'm not saying there is, but observers want to go down the way of interpreting what Alexandre de Moraes has done in the past few years as a vendetta. It's not because of what Bolsonaro, for instance, has done to the Labor Party, it's actually because of what Bolsonaro has done to the rest of the right-wing parties in Brazil, which basically obliterated them and just like Trump to control the Republican Party.

Justin Hendrix:

I think that's very useful context for us to think about as we continue to watch these events unfold. I appreciate you taking the time to speak to me today. I know it's a busy news week and a busy week for you there, in getting started with the semester. So thank you so much.

Ivar Alberto Hartmann:

Yeah, it was a pleasure.