You may not have heard of Brazilian supreme court justice Alexandre de Moraes before, but he will go down the annals of history as the first person with the guts to stand up to Elon Musk.
Moraes was appointed by the Brazilian Supreme Court to investigate the proliferation of fake news prior to and after the 2022 elections there. He was also the judge who ordered X to be shut down in Brazil until it complied with orders issued by the Supreme Court.
First let’s be clear: the Brazilian Supreme Court did not censor Musk’s X. It shut X down for a far more mundane reason: the Brazilian legal requirement that all foreign companies operating in the country must have a legal representative. I have advised SA and foreign companies investing in Brazil for a quarter century, and can confirm that if you don’t have a legal representative in Brazil you can’t even open a company there. SA has a similar requirement for foreign companies.
The situation reached breaking point after Moraes ordered X to remove about 140 accounts that were spreading dangerously false and misleading information about the Brazilian elections of 2022, maintaining the falsehood that former president Jair Bolsonaro was cheated out of victory.
These lies started even before the elections and led to violent mass uprisings shortly after Lula da Silva’s inauguration in January 2023, in which the Supreme Court, parliament and the presidential palace in Brasilia were ransacked by Bolsonaro supporters. One 67-year-old grandmother, nicknamed Fatima de Tubarão (“The Shark”), who had a previous conviction for drug smuggling, was caught on camera defecating in the presidential palace and sentenced to 17 years’ imprisonment.
As if The Shark’s ugly rear end on public display wasn’t enough, there was also an attempt to blow up a fuel tanker at Brasilia’s airport. The justice system dealt decisively with these rioters, sentencing many to long prison terms and incurring the hatred of the Brazilian far right.
When X refused to remove the accounts, Moraes fined X and threatened to arrest its Brazilian representative (a possibility foreseen in law) if it didn’t comply with the orders. But rather than comply, X cynically removed the legal representative (so that there would be no-one who could comply with the court order), thereby breaching the requirement that all Brazilian companies have a legal representative. Such is Musk’s disdain for the Brazilian legal system.
The court then ordered X to appoint a new representative, failing which it would shut down X in Brazil. In another act of supreme arrogance Musk figuratively did to the Supreme Court order what “The Shark” literally did inside the presidential palace. He alleged that the court’s order was illegal and that he was not bound by it (as if that is for him to decide). Moraes then made good on his promise and shut X down, also freezing the bank accounts of its sister company, Starlink, in Brazil as collateral for the fines he had imposed on X.
Musk and the Brazilian radical right then cried that they had been censored. They even compared Brazil to other countries where X is also banned, such as Russia, North Korea and China, conveniently forgetting that unlike Brazil those countries ban almost all foreign websites, not just X, and routinely lock up their critics. That is not the case in modern-day Brazil. They also ignore that X was not censored but suffered the consequences of breaking Brazilian laws and a court order, a fate that can befall any foreign company that breaks its laws.
But of course it is convenient for the Brazilian far right to portray itself as the victim of an evil judge limiting their freedom of speech, rather than accepting that they are common criminals and vandals. It displayed a stunning lack of respect for the legal system on the part of Musk, but Moraes quickly showed him and his supporters that the Brazilian legal system is not to be scoffed at.
But there is more at stake than just a spoilt billionaire who believes his riches put him out of the reach of the law. A sizeable proportion of Brazilians believe with religious fervour that they are living under a “dictatorship of the judiciary”.
Imagine having to live in a country where you are expected to abide by the law.
This and other falsehoods, such as climate change denialism, are being propagated by people for whom Musk is a hero and whose views he actively promotes on X, making him a real danger to democracy and the environment.
Musk is clearly taking full advantage of, and stoking the anger of, right-wing Brazilians who feel they are living under this “dictatorship of the judiciary”, dishonestly trying to compare the current day rule of law to Brazil’s brutal dictatorship. Unlike the dictatorship that lasted from 1964 to 1985, Brazil’s current courts are independent and open to all. Musk could merely petition the court to review the order. So why doesn’t he?
He has made it abundantly clear since the shutdown order that he will not obey the decision. Ironically, he willingly accepted blocking X accounts in China and India, stating that “one must obey the laws in the countries where one operates”, so why not in Brazil? It is tempting to conclude that he simply likes authoritarian governments, maybe because they are good for his businesses.
I would venture to say that if Bolsonaro had asked Musk to censor tweets criticising Bolsonaro, Musk would gladly have complied. Bolsonaro and Musk did meet in 2022 to discuss the deployment of the Starlink service to create internet connectivity in the Amazon (where this connectivity is also used in illegal mining and deforestation activities by, among others, Bolsonaro supporters).
Moraes’ decision finally signals that freedom of speech is not a get-out-of jail-free card for inciting hatred and violence or spreading lies on social media. This decision will hopefully spur other jurisdictions to follow suit. Meanwhile, neither Moraes nor Musk shows any sign of backing down. Moraes has received the support of his colleagues in the Supreme Court.
For the foreseeable future this show of force between a principled jurist and a powerful billionaire brat who happens to be the world’s richest man and believes he can pick and choose which laws and courts to obey will continue, with each side’s vociferous supporters cheering them on.
• Myburgh is an attorney practising in Johannesburg and São Paulo.
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