STF rejects appeal from woman convicted of creating fictional judge – 10/23/2023 – Power

The First Panel of the STF (Supreme Federal Court) rejected the complaint of prior censorship against a decision by the Santa Catarina Court.

In the June 2022 ruling, writer and lawyer Saíle Bárbara Barreto was ordered to pay R$50,000 in compensation to Rafael Rabaldo Bottan, a special civil judge in São José, who is said to be the target of the work of fiction “Causos da Comarca de São Barnabé” , published in 2021.

According to the judge, the name of the character Floribaldo Mussolini, described in the work as a special civil judge at the Court of Justice of Santa Ignorância, in the Federative Republic of Banalândia, would be a pun on the surname Rabaldo and a way found by the lawyer to humiliate him for disagree with your decisions. The judge’s name does not appear in the book.

Saíle was also ordered to remove posts against court decisions made in September and November 2020 on her page “Diary of a stressed lawyer”, which has more than 100 thousand followers on Facebook, under penalty of a daily fine of R$500 in case of non-compliance.

The lawyer was also prohibited from making new publications of a “defamatory, slanderous or outrageous” nature against the judge, also at risk of a fine of the same amount.

Saíle’s defense filed an appeal against the decision, which has not yet been decided. In parallel to this, lawyer Carla Rejane Freitas da Paixão filed a complaint with the Supreme Court stating that the author was a victim of prior censorship in the case.

The rapporteur, minister Alexandre de Moraes, denied the request, stating that Saíle had “no restrictions that would offend the protection of freedom of expression” by the Court.

“Eventual abuses that may occur in the improper exercise of expression of thought are subject to examination and assessment by the Judiciary, with the cessation of the offenses, the right to reply and the establishment of consequent civil and criminal responsibilities of their authors”, stated Moraes in a vote presented in June.

The vote was followed by minister Cármen Lúcia and minister Cristiano Zanin, forming a majority against the author. The trial was held in the court’s virtual plenary session and concluded on the 17th.

The minister and president of the STF, Luís Roberto Barroso, disagreed with Moraes and recognized prior censorship in the case, stating that, although the words addressed to the judge were harsh criticisms, “there was no imputation of crime or hate speech”.

“The orders to remove content and refrain from making new publications with defamatory content, contained in the decision complained of, tend to generate a silencing effect that spreads throughout society, materializing in the inhibition of criticism and, ultimately , in the construction of an environment less favorable to the free circulation of ideas.”

“Furthermore, the obligation not to do so imposed by the sentence, embodied in the determination that “the defendant must refrain from promoting new publications with defamatory, slanderous or outrageous content against the author”, characterizes a type of prior censorship”, said Barroso, which was followed by minister Luiz Fux, who changed his vote.

Carla states that Saíle is the victim of “a silencing process, which can create dangerous precedents not only for her, but for the entire population”.

The lawyer says that the value of the sentence applied in the first instance is much higher than what the magistrate usually applies in similar cases. As an example, she cites the case of a woman who was persecuted, threatened and attacked by an off-duty military police officer in which the payment of R$8,000 in compensation for moral damages was established.

The defense wants to take the case to the STF plenary. Furthermore, Carla filed a complaint with the Inter-American Commission on Human Rights, which is still undergoing an initial study. As a precedent in the court, the lawyer cites the decision that condemned Argentina in 2008 in the case of journalist Eduardo Kimel, sentenced to compensate a judge who had been criticized in the book “The Saint Patrick’s Massacre”.

Saíle is also facing criminal proceedings for slander, insult and defamation. The author was forced to move to another state and, according to her defense, her life was emotionally and financially devastated.

The work questioned by the judge is the lawyer’s fifth book. She began writing humorous texts about the legal world in 2013, with good acceptance from the public, who have expressed support for the case.