Undemocratic Legislation to Undermine Freedom of Speech in Brazil

—Ulisses Levy Silvério dos Reis, The Federal University of the Semi-Arid Region – UFERSA, and Emilio Peluso Neder Meyer, The Federal University of Minas Gerais

The 2018 general elections put the Brazilian political scenario in the center of the global debate on illiberal governments and democratic erosion. Jair Bolsonaro, a former Army officer who was a legislator for almost thirty years, won the election with a political platform based on, amongst other radical viewpoints, the glorification of the 1964-1985 dictatorship. The regime was responsible for numerous illegal actions against the opposition, such as extrajudicial killings, enforced disappearances and torture. A wide range of fundamental rights were ignored or breached in that period of time. The crimes against humanity that were committed are well documented in the files of the National Truth Commission. In addition, the regime enacted laws that facilitated its objectives of persecuting political opponents.^[1]

The absence of true efforts on institutional reforms, an aspect of transitional justice, is a hallmark of the Brazilian transition.^[2] Even with the Brazilian redemocratization in 1985 and the enactment of the 1988 Constitution, legislation previously adopted remained in force. The problem is that part of this array of acts and decrees is embedded in authoritarianism. The totality of the pre-1988 legislation, however, does not share those features. The National Tax Code and the Criminal Code, for example, are acts that were enacted long before 1988 and are generally in accordance with the current constitution. The situation is different, though, for other provisions, such as part of the Administrative Law statutes, the 1979 Amnesty Law, and provisions dealing with the Military Justice system. Yet, one of the main examples of a discrepancy is the National Security Law, approved by Act 7.170 of 1983.

From the beginning of Bolsonaro’s government, his aides initiated a process of persecuting critics using the National Security Law. The first Minister of Justice of the current government, Sergio Moro, the former federal judge that imprisoned ex-President Lula da Silva, was responsible for using this legislation in an unprecedented way, prompting 28 investigations. In 2020, with his replacement by André Mendonça, this metric increased and 51 investigations were launched on the basis of the National Security Law. When compared to the few uses of that legislation in the years before Bolsonaro’s administration, the numbers demonstrate a paradigm shift in Brazil.

The situation is alarming if one pays attention to the facts that supposedly asked for the usage of the National Security Law in the Brazilian context. Three situations can be mentioned.  On 7 July 2020, the Minister of Justice used Article 26 of the National Security Law, which provides for the criminalization of slandering or defaming the president by accusing him of a fact defined as a crime or which is offensive to his reputation, as a basis to investigate a journalist that wrote an article stating why he hoped that Bolsonaro died. More recently, on 10 December 2020, the same Minister stated that he would launch an investigation based on an newspaper opinion of another journalist who said that, in his view, the only way for Donald Trump to recover his reputation was to kill himself. For the journalist, since Bolsonaro is an enthusiastic supporter of Trump, he should do the same. Lastly, on 20 January 2020, Mendonça ordered the Federal Police to open another investigation based on the National Security Law against an attorney and political analyst that said on a TV show that Bolsonaro is responsible for at least 10% of the deaths caused by the new coronavirus in Brazil according to research he assessed.

At this moment, the investigations introduced by the Minister of Justice have not been accepted by the Brazilian courts. Based on the case law of the Brazilian Federal Supreme Court on the freedom of speech, expression and press, the Brazilian Superior Court of Justice blocked at least some of the investigations initiated by Mendonça. The expectation, if one considers the Brazilian Federal Supreme Court case law, is that all the other investigations, despite the strong wording of the criticisms, should cease without major problems for journalists and analysts. However, this must not be the case in the near future if the Brazilian scenario does not recover its constitutional health and if the recent application of the National Security Law, a vestigial element of the 1964-1985 dictatorship, prevails.

Bolsonaro and his family have been championing blatant and aggressive attacks against Brazilian institutions such as the National Congress and the Federal Supreme Court – with the serious additional ingredient of counting on the backing of the armed forces. The 1988 Constitution, in its Article 5, number XLIV, provides that the actions of armed groups against the constitutional and democratic order shall be severely criminalized. Although there are bills aiming at reforming the National Security Law, it is, for now, the prevailing legislation. It must be interpreted in accordance with the 1988 Constitution in order to avoid institutional destruction. Interpretations of the law cannot allow the deterioration of freedom of expression, an essential feature of any constitutional democracy.

Bolsonaro and his supporters have never hidden their contempt for journalists and the profissional press. In a recent statement, the president himself said that he wanted to punch a journalist who asked him about the corruption accusations involving his wife. The strategy of mixing lawfare against the freedom of press with daily attacks verbalized by Bolsonaro, his sons and their supporters against journalists may endanger the role of traditional media in Brazilian democracy. Freedom of speech is still preserved by important Federal Supreme Court precedents, such as the protection of free manifestations for the decriminalization of drugs, the unconstitutionality of a dictatorship’s freedom of press act, or the allowance for amature journalists to exercise their profession. Bolsonaro’s state capture plans – already in action – can jeopardize such fundamental rights and their judicial interpretation. A possible second term, something that polls have not ruled out for now, may allow his allies to capture key positions in the three branches of power, creating an environment of censorship and persecution that brings back bad memories of the period prior to 1985.

Further, there is also a juridical strategy from the president’s attorneys that invokes a kind of illiberal constitutional move, in other words, the usage of constitutional and legislative tools against liberal democracy. Such behavior can be found in other jurisdictions that have also been the target of authoritarian governments, such as Hungary or Poland. Concepts such as autocratic legalism (Scheppele) describe those scenarios and also show that there is mutual learning between illiberal regimes.^[3] The Minister of Justice could use frontal tactics and ask the courts to take the critic’s opinions out of circulation – something that the 1988 Constitution ostensibly forbids. He prefers, however, not to attack media outlets as a whole, but to target individual professionals. Criminal investigations, even if they fail, may also propel civil lawsuits that would, at least, impoverish the boldest critics. If it succeeds, this strategy has the potential to silence others journalists that do not want to suffer the same consequences.

President Bolsonaro and his sons are the major national political actors responsible for attacks against the press, according to the non-governmental organization Reporters Without Borders. This behavior will not cease. Considering the context of the second wave of the coronavirus pandemic, flaws in obtaining vaccines and deaths in the state of Amazonas due to lack of ventilators, one can expect that the level of criticism in the professional press will increase. Bolsonarism will surely respond with more political and legal threats against them. This is another aspect of the attacks against Brazilian democratic institutions during Bolsonaro’s presidency, which in turn is giving new impetus to debates concerning his impeachment.

Suggested citation: Ulisses Levy Silvério dos Reis and Emilio Peluso Neder Meyer, Undemocratic Legislation to Undermine Freedom of Speech in Brazil, Int’l J. Const. L. Blog, Feb. 3, 2021, at: http://www.iconnectblog.com/2021/02/undemocratic-legislation-to-undermine-freedom-of-speech-in-brazil/

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^[1] Pereira, A. W. (2005). Political (In) Justice: Authoritarianism and The Rule of Law in Brazil, Chile, and Argentina. University of Pittsburgh Press.

^[2] Meyer, E. (forthcoming). Constitutional Erosion in Brazil. Hart Publishing.

^[3] Scheppele, K. L. (2018). Autocratic legalism. The University of Chicago Law Review, 85(2), 545-584.