The distinction between fact and opinion and the role of the Electoral Court

When the Electoral Court is given the role of judging the legality of speeches during the campaign period, would it be necessary to distinguish the narration of facts from the expression of opinions? Can the prediction, and the implicit criticism of it, of what a candidate will or will not do when elected be considered misinformation, decontextualization or “fake news”?

Is it reasonable that, when these projections are based on doubtful facts, the Electoral Court prohibits this from being publicized and removes such demonstrations from the air? And what about freedom of expression at one of the moments when it is most important, for choosing representatives and rulers in a democracy?

This was the theme of the second panel of the congress “Freedom of Expression: the essential debate”, held in Brasília on the 27th and 28th of September. 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.

In the discussion about the limits of criticism, philosopher and political scientist Fernando Schüler participated; American professor and writer Nadine Strossen, former president of the American Civil Liberties Union (ACLU); journalist and columnist for the website Poder360 Paula Schmitt; and lawyer Rodrigo Xavier Leonardo, specialist and active in the field of press freedom. The mediation was by Ana Luiza Rodrigues, executive director of the Ives Gandra Institute, master and doctor in Philosophy of Law from USP.

To illustrate the debate, three electoral advertisements were presented that were vetoed last year by the Superior Electoral Court (TSE). In the first, former president Jair Bolsonaro’s campaign stated that president Luiz Inácio Lula da Silva wanted to “change the law to encourage abortion”. To do this, he used excerpts from statements he made in April 2022: “I don’t want to have a child, I’m going to take care of not having my child, I’m going to argue with my partner, I don’t want to. What doesn’t happen is the law requires it to have it. This law does not require care”; “everyone has the right and not be ashamed”. The TSE removed the advertisement from the air because it considered that the legalization of abortion was not in the current president’s government program.

Likewise, the court vetoed a Lula advertisement that stated that the Bolsonaro government had announced “the end of adjustments due to inflation of the minimum wage and pensions” and that “the next target is to end the thirteenth and vacations” . The piece was based on a report, published at the time by the newspaper “Folha de S.Paulo”, about a study by the then Minister of Economy, Paulo Guedes, to delink the readjustment of the minimum wage and pensions from the year’s inflation rate. previous.

The third case analyzed involved a video spread on social media in which deputy Nikolas Ferreira (PL-MG) associated Lula’s eventual victory with the growth in drug use, increased violence, censorship against opponents, expansion of abortion and the closing of churches. , among other problems. The TSE considered the speech “manifestly untrue and hateful”, “produced to offend Lula’s honor and image” and to “induce the social network user to link the candidate as a political defender of illicit and immoral practices”. He cited checking agencies that pointed out excess in the statements, concluding that they included “information known to be untrue” and “decontextualized facts”.

On the panel, lawyer and professor Rodrigo Xavier Leonardo recalled that, until recently, the specialized literature and jurisprudence of the Electoral Court included the differentiation between fact and opinion. Only when a candidate imputed an offensive and implausible fact to a rival did the Court grant him the right to respond. In the most recent period, the Electoral Court began to adopt a more drastic stance, removing that content from election hours on radio and TV or digital platforms.

“The assumption is that the dissemination of fake news on social networks would require a different response from the Judiciary”, he explained. The problem is that, with the need for quick and large-scale decisions, the ability to differentiate fact from opinion has been lost, and with this the application of the most appropriate legal regime for each situation.

“According to what has been consolidated in the Brazilian experience, when facts are narrated, it is possible to make a judgment about the truth or untruth regarding facts. When it comes to ideas, opinions, criticisms, it would be more delicate to make a judgment of truth or falsehood, because they would not be true or false propositions, but more or less appropriate according to a worldview. Even if it were possible to establish a true judgment on an opinion, this would not be the responsibility of the State or the Judiciary. The most appropriate or truthful opinion would result from the debate.”

Based on the cases presented, the lawyer demonstrated that it is one thing to say that a candidate performed an illegal abortion, but another to say that she would support policies favorable to the legalization of abortion. Likewise, it is one thing to say that a candidate proposed reducing the minimum wage, which is different from stating that he intends to establish another public policy on the subject. Stating that a candidate is a drug user is different from saying that he is in favor of legalizing drug use.

When the two things are mixed, to remove critical propaganda, the debate about each of these public policies is harmed. “Facts and opinions are different modalities, require different legal regimes, violate different legal rights. When the possibility of expressing opinions is limited, the possibility for society to build solutions is limited”, added Rodrigo Xavier.

For Paula Schmitt, none of the advertisements could be censored during the election campaign, even if some of the claims were exaggerated. “I don’t believe a prediction can be censored. In essence, it presupposes a confabulation, a speculation, which has no obligation to prove itself. It is the essence of political analysis”, stated the journalist. When commenting specifically on Bolsonaro’s propaganda against Lula, she pointed out an extrapolation, in the phrase that the PT member would “encourage the mother” to have an abortion.

“I understand the emergency [da Justiça] at an election time, but the problem is when we have partial justice – we are human and we have to admit this weakness. And when entire institutions are mostly biased towards one side, the safest solution is for there to be no censorship at all, because one point will be opposed by another”, he stated, agreeing that, in this case, the ideal would be for the Court to grant a right of reply , and not remove the advertisement from the air. But he noted that it might not be in Lula’s interest to present a counterpoint, to clarify that being in favor of legalization is not the same as encouraging abortion. The interest may have been to eliminate the discussion once and for all, given the risk of losing votes among the pro-life electorate. “Justice is being used to prevent the truth from coming to light,” he lamented.

Nadine Strossen agreed that none of the advertisements should have been removed from the election campaign. In the United States, she reported, any public demonstration is only censored if it poses an imminent danger of harm. In defamation actions, when the offense is directed at a public authority, its protection is lower, since it has been placed in the public debate and must be subject to criticism. Restrictions such as those implemented by the TSE on advertising, agreed the American, also end up serving to stifle the search for the truth about what candidates think and propose.

“Is this restriction necessary to preserve democracy? No,” she said. “Experts say that much more effective than suppression is more information. The best thing to do in these cases is to prevent the spread of untruths, through education and critical thinking to evaluate what is said”, he added.

Fernando Schüler was against any possibility of the State defining what is false and what is true, whether in relation to facts or opinions. “The entire history of modern freedom of expression was built on the idea that it is not up to the state to legislate about the truth,” he said, at the beginning of his participation.

Citing James Madison (1751-1836), an American politician and lawyer who formulated the First Amendment to the United States Constitution, and which guarantees freedom of expression and religion in the country, Schüler said that facts and opinions tend to appear mixed in public opinion. Delegating the separation of these modalities to judges, so that they can sanction what is false, is a risk, given that they can make mistakes.

For the teacher, it is necessary to know how to live with falsehoods. “The permission of error and lies is the price we have to pay for a principle that provides us with the truth,” he said. “Much of what has been done in Brazil in recent years has been suppression, prior censorship, in the name of combating fake news, in the name of preserving factual truth. And what we saw in Brazil is that our Judiciary has a lot of difficulty making this distinction between fact and opinion,” he said, at another point in the debate. Remembering the lesson of the philosopher and economist John Stuart Mill (1806-1873), Schüler defended the error in public debate. “The error may prove true later. Even if it isn’t, it tensions the truth. It forces the truth to leave a comfort zone.”