Brazilian Supreme Court Justice Alexandre de Moraes wants greater restrictions for judges on social networks

By Renan Ramalho

Brazilian Supreme Court Justice Alexandre de Moraes has started advocating for stricter limits than the law places on what judges can say on social media.

Last week, the Court began judging the constitutionality of a resolution, issued in 2019 by the National Council of Justice (CNJ), which restricts judges’ freedom of expression on the internet. Moraes was the first to vote for the maintenance of the norm.

Actions by the Association of Brazilian Magistrates (AMB) and the Association of Federal Judges (Ajufe) that ask the STF to overturn the resolution, created within the scope of the CNJ when Minister Dias Toffoli chaired the body, were on trial.

At the time, a good part of the class was against it, considering that the measure, imposed by an administrative body and largely composed of counselors who are not judges, represented a “gag law”.

At the trial, held in a virtual session, Moraes voted to maintain the resolution and was followed by other Justices such as Toffoli, Edson Fachin, and Rosa Weber.

Kassio Marques paralyzed the vote to take the trial to a face-to-face session to discuss the issue orally in plenary.

In the process, the associations’ first argument is that the resolution makes “recommendations” and “prohibitions” that are not provided for in the Organic Law of the National Judiciary (LOMAN).

While it says that the magistrate will lose office if he exercises political-partisan activity, a prohibition also expressed in the Constitution, the resolution goes further.

It would prohibit judges from “emitting an opinion that demonstrates performance in a political-partisan activity or manifesting in support or criticism public to candidates, political leaders or political parties”.

For the AMB, this is an excessive restriction on freedom of expression.

“What is the problem with a magistrate issuing a political-partisan opinion if the constitutional prohibition is linked to the verb ‘to dedicate oneself’, which could never be compared with the simple issue of an opinion?”

“And what is the problem with a judge expressing himself favorably or critically to a certain candidate, political party, or political leadership?”

“Unless better judgment, there is no problem. It cannot be forbidden to broadcast your opinion about a certain candidate, political leader, or political party on social networks”, it said.

Ajufe argued similarly.

“Judges are, above all, citizens and cannot be denied a fundamental right. Now, the premise established in the explanatory memorandum of the Resolution is that “the judge is not an ordinary citizen”.

‘But this does not mean that a fundamental right guaranteed to all citizens can be removed. To deprive judges of the right to freedom of expression is to relegate them to an inferior status as if they were less qualified citizens”, the association stated in action.

The rapporteur of the actions, Alexandre de Moraes, voted to restrict the right to free expression of judges.

He argued that eventual permission for them to give their opinion on political issues would remove their impartiality to judge cases.

“Freedom of expression, in both aspects, is a fundamental principle dear to democracy, although it may suffer certain limitations when confronted with other constitutional precepts of equal rank.”

“That is, the principle of freedom of expression is not an absolute right. The need to maintain the authority, impartiality, and transparency of the Judiciary prevails, showing the legitimate trust expected by society”, he said.

RESTRICTIONS DO NOT APPLY TO STF MINISTERS

In addition to the ban on issuing political opinions, the CNJ resolution also recommends a series of behaviors for magistrates using networks that limit the content of their manifestations.

It says, for example, that they must “observe that moderation, decorum, and respectful conduct must guide all forms of action on social networks”.

Another rule says that they must “avoid expressing opinions or sharing information that could harm society’s concept of the magistrate’s independence, impartiality, integrity, and integrity or that could affect the public’s trust in the Judiciary”.

In addition, they should avoid

manifestations of self-promotion or overexposure;

• inappropriate or inappropriate content that may have negative repercussions or violate administrative morality;
• always observe the prudence of language; avoid the propagation of “fake news” when sharing content or supporting it without conviction about its veracity;
• as well as “avoid expressing opinions or advice on concrete or abstract legal issues that may even eventually fall under their attribution or jurisdictional competence – this last rule does not apply to manifestations in academic works.

Like other rules imposed by the CNJ, these are also not binding on Ministers of Justice the STF itself, which the body cannot judge.

A brief visit to the profiles of those most active on social networks shows this.

On November 14th, when thousands of people demonstrated in front of Army barracks against the election of former President Luiz Inácio Lula da Silva (PT), Moraes wrote that “anti-democratic extremists deserve and will have the application of criminal law ”.

In addition to being president of the TSE, the minister is the rapporteur for investigations at the STF that investigate the acts.

On the 26th, when commenting on the invasion of two schools in Aracruz (ES) by an armed teenager that killed four people and left 13 injured, Gilmar Mendes said that it was a consequence “of the growing culture of hate in the country, fomented by unfounded policies of armament”. “Giving guns to the population, in addition to not solving public safety problems, only results in more deaths,” he posted on Twitter.

The minister participates in several trials, still inconclusive, against Bolsonaro’s decrees that made access to firearms more flexible. The teenager was not authorized to buy and carry weapons, and used a pistol and a revolver from his father, who is a military police officer – a category that always had the right to possess and carry it.

Luís Roberto Barroso often uses Twitter to post lecture videos. On the 14th, he shared a video of a speech in New York in which he defended the priority given to basic education and criticized the Escola Sem Partido movement and the opposition of conservatives to the teaching of gender identity in the classroom. “He is concerned about the wrong haunting and is delaying us in history”, said the minister.

With information from Gazeta do Povo