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Comment by matheusmoreira | Hacker News Reader

No idea why you're getting downvoted. You're right.

The brazilian constitution literally contains the words:

> Any and all censorship of political and artistic nature is prohibited

These accounts were engaged in political speech. The judge ordered their banishment. This is a form of censorship of political nature. Therefore what he did is unconstitutional.

It's a very simple argument that I make every time the topic comes up. Nobody has refuted it to this day. I've had people on this site cite lesser laws, irrelevant laws, appeals to the authority of the judge... But they haven't refuted it.

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The banned accounts promoted violence against political opponents, which is generally an exception from protected speech.

It is indeed a recognized exception in Brazil. Also, our constitutions grants absolute freedom to communicate facts, while free expression is limited that way.

What is messed up here is how those things happened. It's not even clear if it's about hate speech, because the the censoring orders are themselves secret.

But then, the way Twitter handled things was messed up too.

Expression of thought is free. As brazilians we don't have the right to censor others, we have the right to answer and to be compensated for damages. The original insult is not censored.

I cited all the relevant parts of the constitution in a previous post:

https://news.ycombinator.com/item?id=41599925

I could not find the exception you spoke of in the constitution.

I agree with you about the irregular and illegal nature of the orders. The judge did not even give the defense lawyers the details. This is not how a civilized nation does things.

> I could not find the exception you spoke of in the constitution.

It's usually based on the article 4°. And yeah, I do agree it pushes quite a lot from the literal text.

But anyway, it's the courts interpretation since the 90s. But you are right to question it.

Can you please cite and copy the exact text of the constitution which bases this?

I use this english translation of the constitution for citations:

https://www.constituteproject.org/constitution/Brazil_2017

Every point in the text is linkable.

Searching the constitution's text for article 4 gives me these:

https://www.constituteproject.org/constitution/Brazil_2017#s...

An enumeration of the republic's objectives in the context of its international relations.

https://www.constituteproject.org/constitution/Brazil_2017#s...

What appears to be some historic details concerning the transition from last century's military dictatorship to the democracy.

I still cannot find it.

Anyway...

I'm not exactly a fan of the "it's the court's interpretation" argument. It's an appeal to authority. The authority of these judges is questionable. They aren't real judges whose knowledge of law was tested by competition via concurso público. They're there due to their political connections. When it comes to correct application of the law, I'd sooner trust the judges in the lower courts than the current president's former lawyer.

I'm also not a fan of the word "interpretation". It opens the door to the selective and creative applications of the law. These judges usurped power when they started legislating instead of applying the law as written. I've had actual lawyers complain to my face about cases where these judges just made up their own interpretation instead of doing what the written text says.

I really want to see the article you speak of so that I can at least try to understand the logic they're using.

AFAIK, it's usually based on the item 8: repudiation of terrorism and racism. But this one decision may be about something else, nobody knows.

Those are not details about the transition from the dictatorship. They are expected to be followed by all of the remaining of the text. And yeah, that translation is correct, the actual text doesn't say that at all.

IMO, the entire thing is very bullshitty. There is an entire idea of "legal principles", taken out of context from random places on the Constitution, and the entire Judiciary upholds them, except when they decide not to. That started as soon as the constitution-writing assembly was dismissed.

(Just to add, even our first "democratically elected" president after the new constitution was picked by a decision like that.)

> item 8: repudiation of terrorism and racism

I see it now. Thank you. I don't agree with their interpretation but I see what you're getting at.

> the entire Judiciary upholds them, except when they decide not to

I started smelling bullshit too when I noticed this. These judges are not impartial at all.

> That started as soon as the constitution-writing assembly was dismissed.

How sad...

The popular saying here is "doctors think they're gods, judges know it". So things have always worked that way. Realizing this now as an adult is extremely demoralizing and disillusioning.

If you want to get truly disillusioned, look at how Sarney became president.

Where, in the brazilian constitution, does it say that you can censor people if they "promote violence" in their political speech?

Where is this exception? Because I looked for it and I didn't find it. Every thread about this topic, I ask my fellow brazilians to cite this exception and I have yet to get an actual response. Best I've got was an anti-nazism law which is inferior to the constitution and therefore irrelevant, and should have been declared unconstitutional anyway. Not because I support nazism but because banning nazism, a political ideology, would open the door to banning other political ideologies.

So unless someone explains to me what this "exception" is, I won't be convinced.

This has nothing to do with political speech..

Article 286 from the penal code prohibit to incite the practice of crimes.

Any speech, political or otherwise, that incite violence toward another is a crime..

Just to point, but this is usually applied with the article 4 of the Constitution. Otherwise the law would be plainly invalid.

Article 4 from the constitution talk about international relations.. not sure how that would apply here..

Yes, and the punishment for that is either a fine or imprisonment for up to 6 months.

Where does it say the judge can censor it?

the marco civil da internet has provisions to take illegal content published in sites or social media via court order..

It doesn't matter what lesser laws say if the constitution says otherwise. Constitution says manifestation of thought is free and censorship is illegal.

> Term IX.

> expression of intellectual, artistic, scientific, and communication activity is free, independent of any censorship or license

If your speech hurts somebody, they get to answer and to be made whole. The original insult is not censored. We see it all the time with politicians insulting and threatening each other. The other party sues, judiciary applies a fine, that's all there is to it.

Sure.. but this law was never challenged and thus it was never deemed unconstitutional.. Something only the supreme court can do when the proper process is started..

Until this happen the courts must assume the law is valid and apply it as such..

Where is this exception?

In the history of Constitutions, no constitution explicitly states that violent speech is protected. Because until now, they've never had to...it's always been understood. Indeed, the the First Congress of the U.S. passed the Sedition Act just a few years after America was formed and it remained law until 1920 (when it was repealed by Congress).

For more recent examples, yelling "fire" in a crowded venue is also prohibited (this example is given to law students). It is important to understand that the law separates the content of the speech from the act it represents, so saying the word "fire" is allowed; what is prohibited is the act of doing something that will inflict harm on others by causing terror and mayhem.

As most constitutions are based on the U.S. Constitution, the U.S. history is relevant to Brazil because it demonstrates that no Constitution protects unfettered speech. To apply the above to what is happening in Brazil: the words are protected, but the act of promoting violence is prohibited. Thus, the far-right extremists' accounts are censored (because they are using those words to engage in the act of inciting violence) but everyone else can say what they said because other people aren't trying to incite violence when they quote the extremists.

The punishment for incitation of crime is either a fine or imprisonment for up to 6 months. If they're commiting that crime, then fine or arrest them. Don't mess with their thoughts though. As far as I'm concerned, they are and should be free to think and say whatever they want, even if they think violence should be promoted. Democracy is not justified in defending itself until the very second somebody picks up a weapon and tries to put an end to it.

If we start censoring people who "call for violence" as part of their politics, oh boy, do I have a huge list of malefactors for these judges. Plenty of openly violent communist revolutionaries in this country, after all. I'm sure this supreme court would do nothing about them even if presented with such a list, though. After all there is a communist judge among them. This is a country where nazis go straight to jail but where socialists and communists walk the soil completely unpunished.

That's my biggest issue with decisions like these: the selectivity. Why is it that only one side gets to be extreme? This is just wrongthink.

> These accounts were engaged in political speech. The judge ordered their banishment.

Wrong. The accounts with orders for blocking were pushing a doxxing campaign against police investigators tasked with the January 8 coup attempt investigation. Doxxing/threats probably aren't protected speech anywhere in the world.

And where did you read this? The orders are secret. The accusations are secret. The lawyers involved are secret. I read them when they were published and the only name in there is Alexandre de Moraes.

And I certainly did not witness anything you speak of. I don't remember reading any news of any "doxxing campaign" either. As far as I know, these are just politician accounts.

Someone here on HN once asked who the people named in the court orders were. I found nothing related to what you said when I looked them up on the internet.

https://news.ycombinator.com/item?id=41420849

Worst guy in there seems to be the guy who told Bolsonaro to order the military to close down the supreme court. Inciting the armed forces against the other powers is a crime but censoring him for it is still unconstitutional. They even censored their wives and daughters.

In Portuguese: https://www.uol.com.br/tilt/colunas/carlos-affonso-de-souza/...

Thanks. You're the first person I've encountered who didn't give me the "fake news" angle.

It's not clear to me that this kind of doxxing is actually a crime in Brazil though.

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