judge should not censor criticism to protect citizens

The Judiciary cannot assume the role of protecting citizens by saying which criticisms of people or institutions are legitimate or not: this was the main idea defended by the debaters of the third panel of the congress “Freedom of Expression: The Essential Debate”, on the limits of the right to criticism.

The event was organized by People’s Gazette and by 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 28th and 29th of September.

Jurist Nadine Strossen, former president of the American Civil Liberties Union (ACLU) and one of the greatest experts on freedom of expression in the world, studied some recent judicial decisions from the Federal Supreme Court (STF) and the Superior Electoral Court (TSE) for the event. ). She said she was especially shocked by censorship related to content critical of the courts.

“Not only is there, in my opinion, an absolute right to criticize government policies, government officials, but that is actually a democratic virtue and responsibility that we must cultivate,” he said.

One of the panel’s focuses was the case of economist Marcos Cintra, who had his accounts blocked on social media after asking mere questions about the Brazilian electoral system and the TSE. For Nadine, “it is particularly shocking that someone would be punished for raising concerns.”

“There is a conflict of interest, isn’t there? Some judges claiming that there is a special interest in protecting the integrity and dignity of their profession… And, look, I’m proud to also be a jurist, but this is very uncomfortable for me, especially because our federal judges serve lifetime terms. So it’s especially important to subject them to criticism. Of course, they shouldn’t be removed from office just because we disagree with some of their decisions, but we certainly need to be free to question them and criticize their decisions,” commented.

She compared the Brazilian situation with an American case from 1918, when politician and trade unionist Eugene Debs, candidate for the US Presidency on several occasions at the beginning of the last century, was arrested for a speech in which he simply raised questions about US participation in the First World War. The case helped awaken American society to a greater defense of civil liberties, one of the effects of which was the creation of the American Civil Liberties Union (ACLU), which Nadine once presided over.

For her, the case is emblematic because the ACLU was created to defend the right to criticize State decisions during electoral periods. “It was no coincidence that we started defending the right to criticize and question government policies during elections. There is no right to expression more fundamental to democracy and individual freedoms than this”, he stated, to highlight the seriousness of the decision against Cintra.

Fernando Schüler, PhD in Philosophy from UFRGS and post-doctorate in Political Science from Columbia University, noted that the doubts raised by Cintra were not even offensive. “Marcos Cintra’s tweets must be in the 1% of the most educated on the internet”, he joked.

Judgment about which opinions or criticisms are legitimate is not the responsibility of the Court

For Schüler, the Brazilian Judiciary has adhered to the theory of “citizen hyposufficiency”: judges believe that people cannot, by themselves, make a judgment about the credibility of the information they consume – they would need the State’s protection for that.

The expert believes that, no matter how bad citizens’ choices are about what information and opinions would be legitimate or not, state protection is a worse alternative. “I’m very skeptical about the court’s ability to make that judgment,” he said.

At the origin of this problem, according to Schüler, is the lack of adherence to principles and the tendency towards personalism, which easily result in arbitrariness. For him, “impersonality did not take root in Brazilian tradition.”

For journalist Paula Schmitt, the Brazilian Judiciary “starts from the assumption that people are incapable of discernment.” State guardianship, she noted, imposes “the danger that the medicine will be worse than the disease.”

Commenting on one of the cases of censorship that served as the basis for the panel’s discussions – that of the video in which Lula’s presidential campaign accuses former president Bolsonaro of cannibalism – Paula highlighted that, although she disagrees with the content of the video, she was against censorship , for valuing the universal principle over political convenience.

Argentine jurist Fernando Toller, professor of Constitutional Law at the Austral University, sees in some decisions of the Brazilian electoral court a childish view of the citizen and an “anti-legal” character.

Reading Minister Alexandre de Moraes’ decision on Marcos Cintra, Toller observed that one of the presuppositions of any justification for a judicial decision – that of explaining the need for the decision – was omitted by the judge. The section in which Moraes tries to justify the need, according to the jurist, could be summarized in the following sentence: “It is necessary because it is necessary.”

For Toller, “it cannot be accepted that a court claims to guarantee the quality of the debate”, especially in the electoral race, censoring criticism of politicians and institutions. “If ever freedom of opinion is necessary, it is during an election period,” he said.