STF: Toffoli defends ‘self-restraint’ and Moraes criticizes ‘demonizing lectures’

When voting this Wednesday in the judgment in which the Federal Supreme Court (STF) discusses the limits on the use of social networks by judges, Minister Alexandre de Moraes defended the validity of the rules published by the National Council of Justice (CNJ) and stated that the judiciary is already subject to a broad set of constitutional and legal restrictions. In his vote, Moraes refuted criticism of the CNJ’s rules and said that “there is no public career with as many restrictions as the judiciary”.

Rapporteur of the actions that question the resolution published by the CNJ in 2019, Moraes maintained that the body did not create new prohibitions, but only provided legal certainty to situations that did not exist when the 1988 Constitution and the Organic Law of the Judiciary (Loman) were published. According to him, the council’s actions were a response to “true absurdities” recorded in electoral moments before the publication of the rule, especially in digital environments.

— What the resolution did was provide legal certainty to a new fact that did not exist at the time of Loman, that did not exist at the time of the 1988 Constitution. Some magistrates embarked on hate speech, in party political activity — he stated.

Opportunity with security!

For Moraes, the logic applied to social networks must be the same as that of the physical world. The minister cited examples from his experience in the interior of São Paulo to maintain that conduct prohibited outside the virtual environment cannot also be admitted on the internet.

— Could a judge walk around the square wearing a candidate’s shirt? No. There was no social network, but it’s worth what I’ve been saying: what you can’t do in the real world, you can’t do in the virtual world — he said.

The minister reinforced that the CNJ resolution only details duties already provided for in article 95 of the Constitution and in articles 35 and 36 of the Loman, which deal with the restrictions imposed on magistrates. According to him, the success of the rule can be measured by the fact that, in the last seven years, no judge has been removed based on these rules.

— Compliance with Loman is enough to rule the judiciary. If the Constitution didn’t solve it, Loman didn’t solve it, the Penal Code will solve it and that’s enough,” he said.

Moraes also reacted to what he called “repeated fraudulent news” about supposed privileges or freedoms of the judiciary. He said that members of the STF have used the press offices to clarify the scope of the prohibitions.

— A magistrate, whether of first instance or minister, is prevented from judging any case involving family members. There is no public career with as many restrictions as the judiciary – he declared.

When dealing specifically with the actions of judges on social media, the minister stated that party political activity is not limited to party affiliation, but includes the use of the position to influence the electoral process.

— Party political activity is using your role to influence elections. And as a magistrate uses social media to influence one side or another, he is evidently engaging in partisan political activity — he said.

The actions were proposed by associations of judges who allege violation of freedom of expression and extrapolation of the CNJ’s regulatory power. Moraes, however, reaffirmed the understanding already expressed in the virtual plenary that the council acted within its responsibilities by regulating existing duties, especially given the impact of social networks on the credibility and impartiality of the Judiciary.

In addition to Moraes, ministers Nunes Marques, Cristiano Zanin and André Mendonça voted this Wednesday in favor of the rules for judges. The analysis of the case was suspended so that Minister Luiz Fux, who has a health problem and cannot attend the sessions, can participate. In addition to him, ministers Dias Toffoli, Gilmar Mendes, Cármen Lúcia and Fachin himself remain to vote. Flávio Dino does not vote because his predecessor, minister Rosa Weber, already voted during the trial that was being carried out in the virtual plenary.

The judgment on the CNJ rules is seen as a test for the code of conduct that the president of the STF, Edson Fachin, intends to approve for the Court. Court assistants assess that the ministers’ position on the CNJ’s rules may anticipate resistance and alignments around the Supreme Court’s future ethical standard.