Don’t Resort to Censorship to Fight Populism
A dire lesson from Brazil.
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Last Friday, U.S. Secretary of State Marco Rubio went on X to announce the immediate revocation of the visa of Brazilian Supreme Court judge Alexandre de Moraes, as well as “his allies on the court [and] their immediate family members.”
What drove Rubio to take such a drastic step against leading members of the Federal Supreme Court in the largest democracy in Latin America? Rubio invoked President Trump’s policy of holding “accountable foreign nationals who are responsible for censorship of protected expression in the United States,” pointing in particular to Moraes’ central role in what he called a “witch hunt” against former Brazilian president Jair Bolsonaro, who was placed under house arrest and banned from social media earlier this month. According to Rubio, this campaign has produced “a persecution and censorship complex so sweeping that it not only violates basic rights of Brazilians, but also extends beyond Brazil’s shores to target Americans.”
There is great hypocrisy in Rubio’s actions, given his own zealous and unapologetic efforts to monitor, detain and deport green card and visa holders in the United States for speech protected under the First Amendment—not to mention President Trump’s recent $10 billion lawsuit against The Wall Street Journal over what he claims were “false, defamatory, and malignant statements” linking the president to Jeffrey Epstein. But as with Vice President Vance’s much-debated criticism of increasing European censorship, the Trump administration’s failure at home to live up to the principles it preaches to (some) foreign governments abroad does not invalidate the accusations of censorship and suppression.
In fact, Brazil—from which I just returned after promoting the Portuguese translation of my book Free Speech: A History from Socrates to Social Media—offers a troubling but instructive lesson in why censorship is a cure worse than the disease when confronting the illiberal populism that tempts voters and alarms elites across the democratic world.
Imagine this scenario: one day, Chief Justice John Roberts announces an investigation into “fake news, false reports of crimes, slanderous reports, threats, and other infractions” that “affect the honor and security of the Federal Supreme Court, its members, and their families.” Roberts appoints Justice Samuel Alito to lead the probe, granting him powers to issue warrants, access private phone and messaging data, block social media accounts, and even suspend entire platforms that refuse to comply. Alito then unilaterally expands the investigation to target “antidemocratic” fake news, propaganda, and illegal content more broadly.
Such a scenario—where the judiciary unilaterally combines the powers of all three branches, acting as legislator, prosecutor, and judge in cases of political speech—would be unthinkable in the United States, or in any democracy that respects the separation of powers and the rule of law. However, in Brazil this scenario is not a hypothetical dystopia but a reality.
In 2019, then-Supreme Court President Dias Taffoli announced an investigation into fake news, putting Justice Alexandre de Moraes in charge. Moraes immediately started a crackdown, ordering the magazine Crusoé to take down an article linking the Chief Justice to corruption (but backing down when the magazine proved it accurate). He then escalated, ordering arrests, searches, and censorship of right-wing figures, often with flimsy legal and factual bases. Even the left was targeted when he ordered the blocking of communist social media accounts for calling him a “skinhead” and criticizing the Supreme Court.
More recently, a majority of the Supreme Court struck down parts of a law requiring a court order for internet intermediaries to remove user-generated content. This shield against intermediary liability once made Brazil a progressive trailblazer for internet freedom in Latin America. But now the floodgates have been opened wide for the government to require platforms to monitor and remove illegal content or face liability. This development is likely to incentivize platforms to remove even legal content that the government, or activist judges, flag as problematic.
Moraes’ aggressive approach has split Brazilian opinion—hailed by some as a defender of democracy, denounced by others as the censorial Grand Inquisitor of the public sphere. Yet his powers have only grown.
In 2022, in addition to being a justice of the Supreme Court, Moraes became President of Brazil’s Electoral Court, which expanded its powers to police political speech, ostensibly to stop “knowingly false or gravely decontextualized” election information. The Court suspended media outlets and censored speech that, in a democracy, should be debated and judged by voters—not suppressed by judges applying subjective, paternalistic standards.
Moraes’ main antagonist is Jair Bolsonaro, the right-wing strongman who was Brazil’s president until 2023, and who constantly denigrated the media, spoke favorably of Brazil’s military dictatorship from 1964-1985, and had little regard for the checks and balances of liberal democracy. Much like Donald Trump, Bolsonaro’s support depends on social media and political influencers antagonistic to traditional media and the political establishment. Accordingly, many Brazilian elite institutions have treated Moraes’ anti-Bolsonaro crusade as a necessary measure to protect democracy from being overthrown by unchecked online demagoguery that rewards disinformation and polarization.
However, the irony is that Moraes’ crusade has severely undermined the very democracy he purports to defend—and his insistence that he is defending rather than destroying democracy rests on shaky ground. This is evident from Moraes’ increasingly desperate reasoning.
In On Liberty, John Stuart Mill famously warned that silencing an opinion—however false it seems—robs humanity of the chance to judge for itself, arrogantly assuming infallibility. Yet in a controversial decision this February, Moraes cited Mill to justify blocking the social media platform Rumble—a breathtaking perversion of Mill’s philosophy, which defended even a lone dissenter against the majority of mankind. Moraes also mangled First Amendment law by citing Supreme Court Justice Oliver Wendell Holmes’ opinion from 1919 in Schenck v. United States, which upheld jailing a man for distributing anti-draft leaflets.
In that decision, Holmes wrote that speech may be punished if it creates a “clear and present danger” judged by “proximity and degree.” But Moraes omitted that, later in 1919, Holmes himself changed his mind in a dissent in the case Abrams v United States, championing the marketplace of ideas: “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This helped pave the way for a significantly more speech-protective interpretation of the First Amendment, entirely at odds with Moraes’ philosophy. In 1969, the Court in Brandenburg v. Ohio replaced Schenck’s test with a narrower rule allowing only the punishment of speech inciting imminent lawless action. And in 2012, the Supreme Court explicitly rejected the idea that the government can punish broadly-defined disinformation: “Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.”
In other words, both the philosophical tradition and constitutional doctrines that Moraes used to justify restricting free speech in Brazil are entirely at odds with his actions, and a good indicator of just how far Moraes has strayed from liberal democratic norms.
It is not only disinformation that is severely punished by Brazilian judges. The courts have also dramatically expanded the country’s laws against hate speech. Earlier this month, the prominent Brazilian standup comedian Leo Lins was sentenced to eight years in prison for racist, homophobic, and ableist hate speech in one of his routines. Meanwhile, two university employees—a janitor and an administrator—face up to five years in prison for hate speech after misgendering a transgender student and asking her to leave a women’s bathroom.
But despite the powerful role that Brazilian courts have carved out for themselves, criticizing or even discussing the role of Brazilian judges can be risky. In several cases, Supreme Court judges—including Moraes—have sued or initiated criminal proceedings against investigative journalists and vocal critics. One journalist was sued and fined for accurately reporting the salary of a judge. Considering how much power the judiciary wields in Brazilian politics, the simultaneous punishment and intimidation of public scrutiny is a deeply worrying step by this unelected branch of government.
When I spoke to journalists, editors, and publishers of various media outlets across the political spectrum, they all reported extensive self-censoring out of fear of being sued for civil or criminal defamation, or facing other consequences such as the blocking of social media accounts or the banning of articles and documentaries.
This crackdown not only undermines the free expression essential to any democracy; it also fuels Brazil’s already toxic polarization. On January 8, 2023, a right-wing crowd—in an echo of January 6, 2021 in the United States—stormed and vandalized Brazil’s government buildings, convinced by false information that the previous year’s election removing Bolsonaro from power had been rigged. After years of prior crackdowns, censorship neither eliminated conspiracy theories nor persuaded hardcore Bolsonaro supporters the election was fair. Yet despite this failure, there are no signs of a course correction.
Ironically, the United States illustrates how robust free speech protections can check illiberal populism. Courts have frequently struck down or suspended the Trump administration’s efforts to punish critics—from law firms and media outlets to universities and foreign students—reaffirming the principle that “the government may not use its power to punish disfavored viewpoints.” When applied consistently and without partisanship, free expression strengthens democracy and ensures the judiciary remains a check on, rather than a usurper of, political power.
If Brazil wants to save its democracy, it must trust its citizens more than its well-intentioned inquisitors.
Jacob Mchangama is the Executive Director of The Future of Free Speech and a research professor at Vanderbilt University. He is also a Senior Fellow at The Foundation for Individual Rights and Expression (FIRE) and the author of Free Speech: A History From Socrates to Social Media.
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 | A guest post by
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In my darker moments, I sometimes think that between them, the First and Second Amendments are going to devour the whole rest of the United States Constitution. We’re fortunate that the First Amendment fundamentalists and the Second Amendment fundamentalists can hardly tolerate each other; if they ever come together in an alliance the American Experiment probably will be doomed. This thought came to me very strongly in reading Professor Mchangama’s piece. The First Amendment fundamentalism of the piece was worthy of the least temperate advocate of the ACLU, especially surprising since Professor Mchangama is Danish; many Europeans, like many Brazilians, have a more nuanced view of the subject. But what the Professor wrote is so wrong on so many levels with particular respect to Brazil that I’ll limit my response to those points, and leave the larger philosophical issues to the side, at least for the most part.
I have studied Brazil, its people, history, culture, and legal and constitutional development, formally and informally, for my entire adult life, so in other words, for a little over fifty years and counting. I lived in Brazil under the military dictatorship of 1964-1985, and I live in Brazil now under the democratic regime, the “Estado de Direito”, the “State of Law”. Like the United States and all very large countries, Brazil is a complex world unto itself, and as well as I know it, it still surprises me every day. Also like all very large countries, Brazil focuses on its own concerns most of the time, not on the opinions and actions of the outside world unless they impinge upon or threaten it. I’m a dual citizen, native-born American and naturalized Brazilian.
Some initial points should go without saying, but clearly from the article do not, so I’ll state them. First, Brazil isn’t the United States, and Brazilians aren’t Americans who happen to speak a different language. Brazil has its own history, which started over a hundred years before that of the United States, it has its own language, Portuguese, and it has its own culture, characterized by a strong Portuguese base – quite distinct from the cultural heritages of England, France, or Spain -- that integrated Indigenous and African aspects in ways and from ethnic groups totally unfamiliar to North America, and immigrant populations that were also distinctly different and never included many English speakers.
Second, US and Brazilian history are totally different. Brazil experienced a practically bloodless and amicable separation from its colonial power with no drawn-out independence war. This was followed by a long period of successful constitutional monarchy that respected citizens’ liberties, preserved national unity, peacefully abolished slavery, was moving in the direction of implementing a full-fledged Westminster-style system, and was broadly supported, as nearly as we can tell at this distance in time, by public opinion when it was unexpectedly overthrown by the country’s first military coup in 1889. The coup was about civilian control of the military: the Imperial Government insisted on it, the generals were willing to destroy the world’s second oldest written national constitution to prevent it . The result was ninety-nine years of institutional stasis, as weak civilian governments under more or less overt military tutelage alternated with civil/military or outright military dictatorships. The military was imbued with an authoritarian strain of the Positivist philosophy of 19th Century French thinker Auguste Comte, which has become a recurrent theme in Brazilian political thought and against which democrats continue to battle.
The United States Constitution is a product of late 18th Century Enlightenment philosophy, informed by the writings of earlier English writers and an ideological commitment to a certain understanding of Liberty, especially as expressed in the Declaration of Independence and Washington’s Farewell Address. It is undoubtedly brilliant and durable, but as Samuel Huntington wrote in his monumental Political Order in Changing Societies (1968) “The United States thus combines the world’s most modern society with one of the world’s more antique polities.” The Common Law tradition of the English-speaking nations has tended to “fill in the blanks” as they developed over time and largely been faithful to the intent of the Founders, but it would be wrong, as I think Professor Mchangama does, to assume that the Constitution’s statements and particularly the judicial decisions that have expanded them are either necessarily the best statements of the underlying principles, or automatically applicable to all people at all times.
The Brazilian Constitution of 1988, on the other hand, is a late 20th Century document informed by the vivid direct experience of over twenty years of dictatorship, that followed almost eighty years during which the country’s previous constitutional development had been ripped out by the roots. In this, Brazil was rather like the European countries that became free after the collapse of the Soviet Union: some of them also had democratic histories, but decades of Communism had cut them off from their institutional past and they had to start from scratch. Unlike the Philadelphia Convention, the Brazilian Constituinte had direct knowledge of modern communications, modern propaganda, and how effectively both had been combined with force to suppress liberty. If Brazil takes constitutional precautions to protect itself from forces that it knows threatens its liberties because those forces have extinguished those liberties in the past, that is not, as Professor Mchangama implies, a democratic departure; like Germany’s prohibition of neo-Nazi agitation, it’s a democratic necessity.
Nowhere does Professor Mchangama show his basic misunderstanding of the Brazilian reality more clearly than in his initial hypothetical about US Chief Justice Roberts starting an investigation, from which a Parade of Horribles inevitably ensues. “Such a scenario” he intones, “… would be unthinkable in the United States, or in any democracy that respects the separation of powers and the rule of law. However, in Brazil this scenario is not a hypothetical dystopia but a reality.” Yes, in Brazil it IS a reality, but no, while it would be “unthinkable” in the United States it would not be unthinkable “in any democracy that respects … the rule of law”. Brazil is a democracy that through bitter experience not only respects but treasures the rule of law. And it is NOT a dystopia.
Brazil is not a Common Law country like the United States. It’s a Civil Law country like France, Italy, and of course, Portugal, and the role of a judge in a Civil Law country is quite different. Judges in Brazil are not referees in an adversarial system, they’re the presiding officers in an inquisitorial system. For judges in Brazil to manage investigations is not “unilaterally combin[ing] the powers of all three branches, acting as legislator, prosecutor, and judge”, it’s doing what they’re SUPPOSED to do. The role of Minister Moraes in the cases that the Professor is writing about is not the role of Prosecutor – that’s the role of the Procurator General of the Republic, who is doing it, and doing it very ably in my view. Minister Moraes’s role is that of “Relator”, a position unknown in Common Law countries. It’s to organize and to manage the case – in this situation the cases – to ensure that both the Prosecution and the Defense do their jobs and have their say, and ultimately to present it to his colleagues on the court so that they have everything they need to make informed decisions. This is standard procedure in all superior Brazilian courts. These cases fall within the original jurisdiction of Brazil’s highest court not because of any action on Minister Moraes’s part, but because of the requirements of Brazilian law.
As for the related cases involving social media companies, in the United States (so far!) the decision seems to have been made not to regulate them – except for TikTok, for which the current Administration is violating the law with no apparent consequences anyway. To the extent that they are mostly American companies, that’s a domestic concern. When they transmit into another country, though, they come under that country’s laws, or should. That’s what Brazil insists on, and Brazil is within its sovereign rights to do so. Professor Mchangama may not like Brazil’s decision, but his dislike doesn’t equate to a failure of democracy in Brazil. In the face of the firehose of lies that we are all subjected to via the internet every day, the Professor’s contention “When applied consistently and without partisanship, free expression strengthens democracy and ensures the judiciary remains a check on, rather than a usurper of, political power.” seems to me one that remains to be proven in the United States, while he condemns Brazil for trying – and so far succeeding – to make it a reality.
Is DeMoraes in fact "well-intentioned"? Or just self-rationalizing with an awareness that he covets power? Does it matter? The Lula administration is guilty of far more authoritarian actions than Bolsonaro.