In the face of acute threats of democratic backsliding, Brazil’s Supreme Court has authorized aggressive crackdowns on extremist speech—regularly ordering the takedown of social media content featuring election disinformation or incitement of political violence; briefly shuttering X/Twitter altogether when Elon Musk resisted these demands; removing pro-Bolsonaro legislators from office for inciting violence against the Court; sentencing former President Bolsonaro to 27 years for attempting to subvert the democratic rule of law, in part by spreading disinformation about the reliability of Brazil’s election machinery; and imposing long sentences even on low-level participants in the January 8, 2023 assault on the national capitol (for U.S. readers, Brazil’s version of January 6), including one who had scrawled “You lost, idiot” in red lipstick on the statue of lady justice outside the Supreme Court itself.
“You lost, idiot”
U.S. media has often adopted a skeptical stance toward these speech-restricting actions (for example, lots of pieces by Jack Nicas at the New York Times), and congressional Republicans have sometimes weighed in along these lines as well. Drawing largely on these U.S. sources, some civil libertarian scholarship has now done the same. The U.S. media accounts present a partial and one-sided take on the key events in question, and there is no good reason for anyone to over-rely on them, as there is now lots of English-language scholarship by Brazilian scholars covering the same ground.
To note just a few examples, Fabio de Sa e Silva has examined the role of the notorious “Car Wash” anti-corruption investigation in paving the way for Bolsonaro’s rule. Oscar Vilhena Vieira details the Brazilian Constitution’s distinctive version of European-style militant democracy, which he dubs “defensive democracy.” In both its European and Brazilian variants, this set of constitutional theories argues that democratic institutions should actively defend the democratic order itself against existential threats, including by cracking down on extremist speech and extremist political parties.
In the same volume, Raquel de Mattos Pimenta, Débora Alves Maciel, Sofia Bordin Rolim, and Marta Rodriguez de Assis Machado survey the broad anti-authoritarian coalition that coalesced during Bolsonaro’s tenure. They show that this resistance movement made effective use of contentious politics as well as more institutional modes of political contestation. Elsewhere, Matias Spektor has authored another helpful analysis of the coalition against backsliding in Bolsonaro’s Brazil, and Lívia Buzolin has explored the impact of Bolsonaro-era autocratization on LGBT rights in Brazil, along with resistance thereto.
Conrado Hübner Mendes surveyed the state of academic freedom in the midst of the Bolsonaro era. Machado and Pimenta have also shown that Brazil’s three decades of stable democracy featured “authoritarian zones” that operated as holdovers from the military dictatorship, particularly in the policing and public security context. Daniel Bogéa and Lívia Guimarães examine the leadership of the STF’s rotating chief justices during Bolsonaro’s tenure. And Luciano Da Ros and Manoel Gehrke have drawn lessons from the Brazilian case for how to bring authoritarians to justice.
You get the idea.
There is lots of room for reasonable disagreement about whether the Brazilian Supreme Court has struck the optimal balance between free expression and democratic self-defense. Brazilian scholars and advocates themselves advance a wide variety of positions on whether all, some, or none of the Court’s aggressive crackdowns on right-wing extremism have been legitimate.
But taken in the aggregate, the most striking difference between the U.S. and Brazilian sources is that the former systematically understate the existential threat faced by Brazilian democracy. (A threat that has not yet passed, given that Bolsonaro’s son Flávio is in Washington this week seeking Trump’s support for his current presidential campaign.) Vilhena Vieira and Ademar Borges make the important point that while individual court decisions should be skeptically evaluated, any such evaluations should account for the “severity of authoritarian threats” to which the Brazilian courts were responding.
In my own forthcoming book on free speech and democratic backsliding, I endorse the Brazilian scholars’ assessment of these existential threats. I provide a comprehensive survey of the Supreme Court’s treatment of extremist speech during and after Bolsonaro’s tenure (which is indeed quite speech-restrictive). I survey also the Brazilian justices’ militant democracy-style arguments in support of these decisions. (This will, I think, be the most comprehensive such account available in English.)
I also show that, even while aggressively suppressing hate speech, incitement of political violence, and election disinformation, the Brazilian Court has maintained civil libertarian guardrails for “ordinary” political speech and independent media. U.S. civil libertarians often argue that we should not allow restrictions on false and harmful speech no matter how extreme, because such restrictions will inevitably lead to further restrictions of speech that we find more valuable. The risk is very much real, but the record of Brazil’s Supreme Court suggests that sliding down the proverbial slippery slope is not in fact inevitable.