Censorship resurfaces in Brazil under disguise

How was it possible that, under an express rule of the 1988 Constitution, according to which “any and all censorship of a political, ideological and artistic nature is prohibited”, the Superior Electoral Court (TSE) prohibited, in 2022, the exhibition of a documentary about the attack on former president Jair Bolsonaro before the second round of elections? Would such a decision be compatible with internationally consolidated parameters for the protection of freedom of expression? Are there situations in which such an extreme measure would be justified? If so, would they be present at the time?

This was the theme of the fourth panel of the congress “Freedom of Expression: the essential debate”, held in Brasília on September 27th and 28th. The event was organized by People’s Gazette and by the Ranking of Politicians with the support of the Liberal Institute, the Paraná Lawyers Institute and the National Federation of Lawyers Institutes (Fenia). Influential voices on the topic of freedom of expression in Brazil and around the world participated in six panels on the subject.

To discuss the TSE’s decision that banned the production company Brasil Paralelo from showing the film “Who ordered Jair Bolsonaro to be killed?”, Patrícia Blanco, president of the Palavra Aberta institute, which works in favor of press freedom, was invited; lawyer Rodrigo Xavier Leonardo, scholar and active in the area; Fernando Toller, professor of constitutional law at the Austral University, in Buenos Aires, Argentina; and Todd Henderson, consultant, jurist and professor at the University of Chicago, in the United States. Mediation was carried out by Fábio Losso, doctor in civil law from USP.

Right at the beginning, a question intrigued the debaters: would the TSE’s decision be a case of prior censorship, an institute that dates back to authoritarian periods in Brazilian history, or a mere “embargo”, given its temporary nature and with the alleged purpose of avoiding imbalance in the electoral dispute, according to the decision of the TSE?

The term “embargo” was introduced into the conversation by Patrícia Blanco, who, even in doubt about the reasonableness of the measure, mentioned that it was based on a resolution of the Electoral Court, approved in December 2021, which prohibited the disclosure of “facts known to be untrue or seriously out of context that affects the integrity of the electoral process”. The problem, later noticed by other debaters, is that the TSE itself did not know the content of the documentary, to say whether or not it contained any falsehoods.

“I don’t understand it as censorship, I understand it as an embargo, a temporal embargo, in which he [o TSE] established that that documentary could not be broadcast during that period [que antecedeu o segundo turno da
eleição presidencial], but could be broadcast later. I don’t know what the legal framework is, and I would ask jurists if this is prior censorship, if an embargo is possible, if it is advance protection”, he asked.

Before, she recalled that not only the Constitution prohibits censorship, but also the jurisprudence of the Federal Supreme Court (STF), which established that content can only be subject to liability if it constitutes an illicit act, “a posteriori”, that is, after its manifestation.

He then regretted that another type of censorship had resurfaced in Brazil, not centralized and carried out by a state body, but dispersed and private, which takes shape in what is known as “cancel culture”, and which consists of massive campaigns on social media. social actions of silencing political and ideological opponents. “It ends up promoting something very harmful: self-censorship, the inhibition of the possibility of speaking, the fear that anyone has of contributing to the public debate. You can be excoriated for your ideas,” he said.

In his presentation, Fernando Toller listed elements that characterize prior censorship: a systematic procedure that analyzes in advance and obligatory what is submitted to it, whether or not it approves certain content, and the mere omission of a supervised entity to subject some publication to its examination already makes it illicit.

Furthermore, it evaluates such content based on vague and imprecise terms on political, moral or religious topics. It is universal, as it examines everything that is submitted to it, and suppresses manifestations in a summary manner, without process, without publicity and the right to be contradicted, with the censor being responsible for later proving their innocence.

Even though the TSE is not a body that applies procedures of this type, Toller said that the decision that suspended the screening of the documentary reproduces the worst that exists in prior censorship. “I found a number of surprising statements,” he said, giving as examples “accusations” that Bolsonaro supporters were amplifying, on social media, the dissemination of content to their voters; or that Carlos Bolsonaro, son of the former president, would have millions of followers. “What crimes are these?” he joked.

When commenting on the decision, Todd Henderson admitted to being “confused”, not knowing what would be wrong with the eventual showing of the documentary. “There are no allegations of what would be true or false in its content,” he said, reflecting the fact that, as the content was unknown, it was not possible to know whether or not the producers would accuse someone as the alleged mastermind of the attack against Bolsonaro.

The American also criticized the ban on the exhibition at the most decisive moment of the campaign, just days before the vote. “Voters want information before the election. They cannot undo the vote. So they want to know about something now, not after the embargo.” Responding to one of the questions proposed, he said that, in the USA, “definitely” a decision like that of the TSE would not be compatible with the standards of protection of free expression.

There, laws and regulations that attempted to impose “embargoes” before the elections were struck down by the Supreme Court. “In the USA, the State cannot decide which books can be published or which films can be seen,” he said, reproducing the understanding of the majority of ministers. He noted that the minority admitted restrictions and that they are still common in economic regulatory bodies, but not in politics, “the most sacred territory of the first amendment”, in reference to the clause in the American Constitution that protects freedom of expression.

In the debate, Rodrigo Xavier was the most eloquent in classifying the TSE’s decision as prior censorship, a common practice during periods of authoritarian rule in Brazil, but expressly prohibited by the 1988 Constitution.

He also refuted the argument, raised by Patrícia Blanco, that the Court could use the resolution that prohibited the disclosure of “facts known to be untrue” or “severely out of context” to previously suspend the screening of the documentary. “Within a legal system, it is a very specific norm and far below the Federal Constitution, which is clear, in articles 5 and 220, that censorship is prohibited,” he said.

He highlighted the fact that even the ministers did not know the content of the film. “The unlawfulness of the manifestation of the thought was determined without knowing the content of the thought. This distinction between ‘prior censorship’ and ’embargo’, without knowing the content, is something foreign to our legal tradition. You don’t have the ‘prior embargo’ figure. What we may have is an attempt to use another word other than censorship, which is a very strong word. In light of our constitutional system, we cannot classify this in any other way than as prior censorship”, insisted the lawyer, remembering that, in the trial itself, Minister Cármen Lúcia mentioned the expression, although other ministers denied “prior censorship”. .

He noted that, under Brazilian law, it is possible to later be held liable for illicit content, and even to grant “inhibitory measures” to prevent the continuation of any damage. But, in the case of Brasil Paralelo, there was no proof that there was anything illegal in the documentary.

He concluded that the decision represented a setback in freedom of expression and argued that rules that eventually restrict this right should be approved by law, before the electoral process, and not by TSE resolution in the middle of that period.

“And not even the National Congress can determine prior censorship. We are facing a permanent clause. This was a point that could not be discussed in 2023. Ultimately, no matter how best the interests may be, the fact that this happened to preserve democracy puts democracy itself at risk. This is not about carrying out a witch hunt or any personal criticism of anyone, but we hope that Brazil has many elections ahead and that this type of situation does not happen again”, he concluded.