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Above and beyond “twitter files”: unravelling Elon Musk’s interests in defying the Brazilian Supreme Court

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Elon Musk started a crusade against the Brazilian Supreme Court. The attacks are being specially directed at Justice Alexandre de Moraes, the rapporteur of an inquiry investigating “digital militias.” Musk accused de Moraes of illegally censoring X’s user accounts in the context of such a procedure, calling Alexandre de Moraes a “dictator”  who “should resign, be impeached, and be on trial for his crimes.”

Musk’s allegations conceal the substantial efforts taken to improve digital platform regulation in Brazil, a complex mosaic that combines a well-established multi-stakeholder approach with episodes of judicial protagonism in harmful situations, such as the reaction to the Bolsonarist invasion of the country’s Congress, presidential palace, and Supreme Court facilities.

Musk is piggybacking on the “leak” of the so-called Twitter Files by the journalist Michael Shellenberger (yes, the same person publishing misleading arguments about climate change). In his report, based on the X internal files, Shellenberger  accused Moraes of a “sweeping crackdown on free speech.” The topic escalated on April 7th, when Musk, following these reports, posted that “content restrictions in Brazil have been removed”. Following these declarations, the Court opened another inquiry to investigate the possibility of Musk’s obstruction of justice and also included him in the investigation of the digital militia.

The spreading of disinformation and hate messages during former President Jair Bolsonaro’s mandate, defying the resilience of Brazilian democracy, was crucial to opening the digital militia inquiry. Interim decisions during its proceedings determined the suspension of users under investigation for the dissemination of disinformation, false accusations, threats, and other illegal conduct. As reported by Columbia’s Global Freedom of Expression initiative, the court pointed out evidence of a “coordinated use of organised computer tools, such as accounts on social networks, to create, disclose, and disseminate false information or capable of harming institutions of the rule of law, notably the Supreme Court”.

Even so, you may, in bona fide, ask yourself: Why and how can a Supreme Court be both the investigator and the ruler in such matters? And also, in what and whose interests is Musk acting against a Brazilian court?

There is no easy, fast answer to that because unravelling this feud requires a better understanding of the Brazilian legal and institutional context (an understanding of which Musk and Shellenberger do not have) that resulted, among other things, in the digital militia inquiry. The good news? I am writing this piece to help you do that.

Brazilian Supreme Court (expanded) competence  under dispute: this case is not just about freedom of expression

First things first: the Brazilian Supreme Court is one of a kind! Its hybrid judicial review system takes parts from both abstract review and concrete review systems. Its constitutional competencies are broad and give the Court the power to make internal rules about its jurisdiction, and the extent of this internal ruling competence is at the core of the dispute over the legitimacy of the inquiry. 

Article 43 of the Supreme Court Bylaws asserts the possibility of investigating criminal violations within the court’s premises, but the compatibility of this disposition with the Constitution is contentious.

As well summarised by Emílio Meyer and Thomas Bustamante (2022), the inquiry is controversial because it was not preceded by a request from the prosecutor’s office or a police authority, to the point that the court both leads the investigation and determines procedural measures based on it. Despite this, the authors asserted that “in terms of constitutional politics, however, the inquiry gained force because it was a response to the fact that the authority that should investigate these cases— the Prosecutor-General of the Republic—had already been captured by Bolsonaro”.

The point was the object of a decision that confirmed the constitutionality of the inquiry as an exceptional and necessary means to protect the Court and its Justices against attacks that undermine the stability of the democratic regime and protect fundamental rights.

Lucas Conceição (2022a) comments that this reasoning depicts a Court that aims to incorporate an extended role as an institution focused on protecting democracy (Tushnet, 2021), perceiving disinformation as “a polycentric political and institutional issue that risks the stability of the democratic regime and thus warrants a more prominent reaction by the constituted powers”.  

It is also worth noticing that the inquiry’s constitutional reasoning expressly balances the fundamental rights involved and “guaranteed the protection of freedom of expression and of the press under the terms of the Constitution, excluding from the scope of the investigation journalistic articles and posts or other manifestations (including personal ones) on the internet, made anonymously or not, as long as they are not part of funding schemes and mass dissemination on social networks.

Conceição (2022b)  helps us to see that there is no easy way out of this dilemma, and “although an advantageous position during this sensitive period, the consolidation of the Supreme Federal Court in this political dynamic can become a source for further divisiveness between ultra-conservatives and democrats in the country, as a lack of trust in the role and extension of powers of the Supreme Federal Court remains in the zeitgeist of a deeply divided country”. 

This conundrum reveals the natural tensions of a large democratic nation navigating the complex ocean of digital platform regulation. Brazil is adjusting its sails to regulate harmful conduct and systemic risks that derive from conduct perpetrated on social networks, sometimes taking a multi-stakeholder approach and, on other occasions, resorting to judicial protagonism when necessary to curb harm not yet addressed by Congress.

Due to the natural challenges of this task, Brazil definitely doesn’t need to take on the additional stress-test of having a billionaire undermining the credibility and legitimacy of its institutions. That said, to fully acknowledge the reasons behind Musk’s behaviour, you have to go above and beyond the Twitter Files to recognise that Musk’s initiative was never just about freedom of expression or the possible procedural excesses of our Supreme Court.

Breaking the smokescreen: Musk’s interests on attacking Brazilian institutions

Musk said that “the severity of the censorship and the degree to which Brazil’s own laws are being broken, to the detriment of their own people, is the worst of any country in the world in which this platform operates.” 

So, according to Musk’s statement, Brazilians are in a worse situation when it comes to censorship than citizens living under dictatorships in countries where X operates (such as Equatorial Guinea!).  

Let’s think back to the time when X complied with the blocking of criticism of Turkish President Recep Tayyip  Erdoğan, on the eve of the most recent national elections in Turkey. This behaviour shows that even though a technical criticism of the digital militia inquiry in Brazil is possible, Musk’s assessment is alarmist and disproportionate considering his lack of support for freedom of speech in these other autocratic societies in which his businesses operate

If this were about the sincere concern with Brazilian fundamental rights and freedoms, I would just say, as Luz & Conceição (2022) already pointed out in another digi-con article, that this should be addressed under the notion of external intervention, particularly when such intervention is perceived through the lens of a “white saviour” archetype that obfuscates ulterior motives and interests.

Hence, Musk’s instrumentalization of the freedom of speech discourse is a blatant strategy to cover his real, more mundane business interests, from the engagement of the far-right users on X and bromance with extremist politicians to the need to conquer consumers and critical minerals in Brazil, in a context where Musk’s car and telecom companies need these resources more than ever after facing challenges in the Chinese market ”as well as scrutiny in the West over his reliance on China”

Musk’s lack of substance and coherence was exposed by Sam Biddle, who states that X owner “made hay of his legal battle against secret surveillance but continued selling X user data to a company that facilitates government monitoring”.Chief Justice Luis Roberto Barroso said in a statement about this case that “court decisions may be subject to appeal, but never deliberate non-compliance”, In other, less elegant words: due process is key to reacting against eventual abuses related to suspension of accounts, and we don’t need Musk’s outcry tweets for that!

Mariana Avelar
PhD Candidate

PhD candidate at the Federal University of Minas Gerais and visiting researcher at Max Planck Institute for Comparative Public Law and International Law (MPIL).

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