State of exception – 08/05/2022 – Luís Francisco Carvalho Filho

By deeming unconstitutional the Press Law enacted during the military regime, in April 2009, the Federal Supreme Court established memorable principles for the development of Brazilian democracy.

The concrete exercise of freedom of expression and information guarantees the right of criticism, especially to public agents, even if in a harsh and blunt tone.

Journalistic criticism is not susceptible to legislative or judicial censorship. The STF mentions the main idea that “anyone has the right to say whatever they want”.

The internet is a “virtual territory that freely conveys ideas and opinions, debates, news and everything else that means fullness of communication”.

But electoral legislation imposes a state of exception precisely in the acute period of choosing future governors, when the clash of ideas, opinions and versions should, in theory, be unimpeded.

The central axis of the political process in Brazil is the candidacy and not the electorate. The TSE has an active participation in the legislative process (its resolutions have the force of law) that offers protection shields to candidates, regardless of ideological color.

This explains, for example, attempts, not yet successful, to restrict polls in the days ahead of the vote. This explains the recent and embarrassing gesture of the Superior Electoral Court of hiding part of the information about the candidates’ assets.

The contrast between the libertarian STF decision of 2009 (sometimes ambiguous, it is true) and Law 9,504/97 and its successive addenda is remarkable.

D-day is August 16, when, according to the official calendar, the propaganda begins: committees, walks, loudspeakers, rallies. It is forbidden to show, electric trio, “animate” rallies with “artists”, making and distributing “t-shirts, key chains, caps”. On election day, only “individual and silent demonstrations” are “allowed”.

The TSE says that “demonstrations of support or criticism of the political party or the candidate or candidate”, before August 16, “proper to democratic debate, are governed by freedom of demonstration”.

And then? The court clarifies: the “free expression of the thought of a voter and identified or identifiable on the internet is only subject to limitation when it offends the honor or image” of candidates and parties, equating it with propaganda. The Electoral Code is exhaustive: advertising that slanders, defames or insults persons and bodies or entities exercising public authority will not be tolerated.

The subject of offended honor is too subjective.

To say that the President of the Republic omitted himself, contributing to the death of people who could have survived the pandemic, constitutes “slander” for a Bolsonarist judge or averse to freedom of expression or intimidated by the coup threats from Palácio do Planalto. And calling him a scammer, after the 16th, can be seen as another “limitable” abuse.

There is a certain tradition of liberalism in the TSE, but the provisions that authorize censorship inspire state electoral courts, some provincial and government, to create obstacles to journalism. The two ministers appointed to the STF by Jair Bolsonaro are already on the TSE’s substitute bench.

The Electoral Justice, in relation to content, must act “with the least possible interference in the democratic debate”, propagates the TSE. It doesn’t seem very reassuring.

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