The president of the (Supreme Federal Court), released this Thursday (2) a note in defense of the minister and the court in which he states that the collegiate has a history of protecting and promoting freedom of expression, but that the law does not authorize the commission of crimes.
The text is a response to the document that criticizes the magistrate and claims that there is censorship in the country. Fachin does not directly quote Moraes, but counters the North American accusations.
“It is understood that, in certain cases, freedom of expression may exceptionally suffer specific limitations, particularly when these are necessary to preserve the effectiveness of another fundamental right. Likewise, the right to freedom of expression cannot be claimed for the commission of crimes defined by law”, says Fachin.
The mention of Moraes is made in the section in which the president cites court judgments that prevent undue restrictions on freedom of expression.
The colleague reported a case concluded in 2018 in which the plenary declared unconstitutional the restrictions imposed by electoral legislation on humor and the issuing of criticism involving candidates, parties and authorities. In the action, the Supreme Court declared that freedom of expression guarantees the right to criticize public figures and state authorities, even if in a harsh, blunt, ironic or irreverent tone.
This Wednesday (1st), the judiciary committee of the House of Representatives published a third report on Brazil in which it criticizes Moraes, claims that his alleged censorship could interfere in Brazil’s elections in 2026 and says that the minister is trying to censor American freedom of expression.
Two other reports. In one of them, confidential decisions by the STF minister on social networks were exposed, obtained from a parliamentary subpoena made to the social network X (formerly Twitter), owned by billionaire Elon Musk.
Despite accusing censorship of the magistrate’s conduct, the text valued the political aspect, aligned with Bolsonaro’s supporters — ignoring attacks on democracy by right-wing figures.
A, a pro-republican federal deputy who, on January 8 of this year, met with former federal deputy Eduardo Bolsonaro, senator and presidential candidate Flávio Bolsonaro and journalist Paulo Figueiredo.
In Fachin’s response, the president of the court says that, contrary to what the North American body says, what is verified is that, in the Brazilian legal system, freedom of expression has a preferential position within the framework of fundamental rights.
According to him, this guarantee is justified by the effectiveness of democracy itself. But, furthermore, the orders given by Moraes, and endorsed by the collegiate, also followed this precept, as they were given in investigations into coup attempt crimes. In these cases, he said, the measures were determined when there was “robust evidence of the commission of those crimes”.
“The orders to remove content on digital platforms given by the Federal Supreme Court are part of the context of investigations that have as their object the criminal exploitation of social networks by digital militias, with the purpose of committing various criminal offenses, in particular the crimes of attempted violent abolition of the Democratic Rule of Law, coup d’état and criminal association”, he states.
In about half of the text, Fachin describes and defends the court’s decision on the liability of platforms in , contextualizes the judgment and highlights the numerous participation of civil society entities in the public hearing and as amici curiae.
Last June, the STF expanded the obligations of social media platforms to operate in Brazil, making them civilly liable if they do not proactively remove, before a court order, a new list of content, including anti-democratic, discriminatory or inciting crimes.
“Furthermore, the decision follows a global trend of reassessing the protection of rights on the internet, seeking a balance between the accountability of platforms and the preservation of freedom of expression. In view of this, the trial moved towards finding a final decision that, simultaneously, increases care regarding the commission of crimes in the digital environment and does not create incentives for the inappropriate removal of legitimate content”, he said.
Finally, Fachin also cited US rules on the subject, remembering the Communications Decency Actwhich provides immunity for platforms, but establishes five exceptions: in the case of federal criminal prosecution, intellectual property laws, state laws compatible with Section 230, certain rules on privacy of electronic communications, or specific laws on sex trafficking. Europe, on the other hand, adopts even stricter rules, set out in the Digital Services Act.
