An exemplary case of prior censorship in a book about the Judiciary – 12/08/2023 – Frederico Vasconcelos

Prior censorship does not always originate from the Judiciary. The topic has been on the agenda since the STF (Supreme Federal Court) thesis that press outlets should be punished for the speech of interviewees.

Prior censorship can be generated by actions and omissions by the Executive and Legislative branches, or serve the interests, common or isolated, of businesspeople and the legal profession.

In April 2021, I wrote an article for the book “The Judiciary of Our Time“, at the invitation of the organizers of the work: lawyers Sérgio Renault, president of the Innovare Institute, Raquel Khichfy, coordinator of the institute, Pierpaolo Bottini, coordinator of the OAB’s Press Freedom Observatory, and political scientist Maria Tereza Sadek, professor at USP and collaborator at FGV/RJ.

Bottini and Sadek are members of the Innovare Prize judging panel.

“It is not exactly a legal technical book, but a record, in the style of a report, made by those who participated or were privileged observers of what has been happening in the Judiciary environment”, they explained.

“We would like to invite you to join this work in recognition of your invaluable contribution to the improvement of the Brazilian judicial system and commitment to the ideals of justice defended by everyone who will be gathered in this book.”

“We intend to contribute to everyone’s understanding of what has happened in our justice system over the last two decades”, I was told, with the suggestion that I write freely about the topic “Coverage of the Judiciary by the Press”.

The axis of my presentation is summarized as follows: “Investigative journalism has concentrated its focus on combating corruption. The central problem is impunity, which encourages illicit acts, and also finds refuge in the Judiciary.”

I make the following reservation: “The majority of the judiciary does not condone impunity.”

I researched for two months the most relevant facts that had been published in Sheet and on the Interesse Público blog. The text with 17,000 characters was delivered within the agreed deadline.

Days later, I was surprised by the suggestion from the book’s organizers to keep the facts in the text and omit the names of characters who would also write in the book.

I rejected the proposal. I couldn’t change the episodes I originally revealed in the Sheet because of the convenience of another vehicle. The book was released by Globo Livros. Instituto Innovare has the support of Grupo Globo.

The Editorial Director of SheetSérgio Dávila, decided that my full text would be published in Ilustríssima.

Under the title “Tolerant controls and lack of transparency encourage impunity in the Judiciary”, the article was published in full on August 10, 2021. Without any objections.

Here is the summary, a summary of my text, published in the newspaper:

“The recurrence of cases of sale of sentences, misappropriation of funds, nepotism, political rigging and ethical conflicts in the Judiciary that end up with impunity, prescribed or with light punishments reveal the weakness of transparency and control mechanisms in Justice.”

On the same day, the article was reproduced in the CNJ clipping.

Minister Dias Toffoli was president of the STF and CNJ between September 2018 and September 2020. He is the author of an article in the Innovare book under the title “National Council of Justice: a determining role“.

In my article, which deals with impunity in the Judiciary, there are several criticisms of the external control body of the Judiciary. I affirm that, on the first day as president of the CNJ, “Toffoli changed the rules, eliminated restrictions against appointing relatives and using the CNJ as a political springboard. He favored friends and revoked the quarantine of assistant judges.”

When the minister was deputy head of legal affairs at the Civil House under José Dirceu’s administration, he practiced private law and represented PT clients. I note that the OAB saw no reason for impediment.

Toffoli is cited for having contributed to the return of the military to civil power when president of the STF.

I also can’t imagine how it would be possible to suppress, for example, the name of the minister in the following excerpt from my text:

“Disturbed by reports in Crusoé magazine about alleged accounts linked to female lawyers of STF ministers, Toffoli established, via ordinance, an investigation to investigate fake news and the dissemination of messages that undermine the honor of members of the court. He chose minister Alexandre de Moraes for the task. In a typical measure of periods of exception, the judge who considers himself the target of criticism leads the police action and is the final judge of the case”.

On May 10, 2019, I published a post under the title “The silence of lawyers in the face of censorship in the Judiciary”.

Here are excerpts from the post:

“The legal profession joined in force at the dinner around minister Dias Toffoli, on the 3rd, at the Figueira Rubayat restaurant, in São Paulo, in order to make amends to the Federal Supreme Court, in the face of attacks on the institution and its members.

The speeches praised the right to full defense, to full contradiction, the prerogatives of the legal profession, forgetting that Toffoli, in an elastic interpretation of his powers, ordered the installation of an inquiry with measures typical of periods of exception.

In the investigation initiated by Minister Alexandre de Moraes, chosen by Toffoli for the task, the judge who considers himself the target of criticism leads the police action and is the final judge of the case.

At the Figueira dinner, freedom of expression, so dear to legal operators, should have been the main dish, but it was left off the menu.”

In the preliminary schedule of the Innovare book, my article would be published in the Third Block, following the texts by STF ministers Luiz Fux and Roberto Barroso [veja ilustração acima]. It would be the first text by the invited press professionals.

It was up to businessman and journalist Márcio Chaer, director of Consultor Jurídica magazine, to write about the behind-the-scenes of the Judiciary, in an article entitled “Reinventative justice and journalism without proven effectiveness against disinformation”.

When citing press professionals who pioneered coverage of the Judiciary and those who work in the area, the author made an explicit omission that the reader will notice.

Interestingly, it was Chaer who, in 2003, published one of the first warnings about prior censorship defended by a STF minister.

I reproduce your text:

“Lawyer Luís Francisco Carvalho Filho defended, during the Judicial Conference on Press Freedom in Brazil, the disobedience of judicial orders that impose prior censorship on media outlets in Brazil.

‘I don’t see the authority in anyone in this country to prohibit, in advance, the publication of any news’, said Carvalho Filho, in front of an audience of around thirty judges, to conclude, with emphasis: ‘I am in favor of disobeying these decisions’. At least a shout of ‘bravo!’ heard from the audience.

From the judges’ sector, where representatives from practically all units of the Federation were present, the pent-up irritation gradually leaked out. But with impressive intensity.

The battle cry of Carvalho Filho, who advocates for sheet S.Paulowas a response to the proposition of Federal Supreme Court Minister Gilmar Mendes who, shortly before, stated that prohibiting the publication of news ‘is not incompatible with the Federal Constitution'”.