Originally published in Portuguese. A rough English translation is below. To read a longer version of this article, check out The Bedrock Principle.
By Jacob Mchangama and Jeff Kosseff
In 2019, Dias Toffoli , then president of the Supreme Federal Court, appointed Alexandre de Moraes to lead an inquiry into “fraudulent news, slanderous accusations and threats against the Court, its ministers and their families.” In 2022, when he was sworn in as president of the Superior Electoral Court ( TSE ), Moraes was given even greater authority to monitor speeches during the elections. His controversial methods have divided Brazilian public opinion: some see him as a defender of democracy; others, as the Grand Inquisitor of censorship.
Moraes recently made headlines for his suspension of the conservative platform Rumble , which he accused of allowing the spread of false information. His decision goes to great lengths to defend the ban on Rumble based on the principles of liberalism and the jurisprudence of the First Amendment to the United States Constitution . In doing so, however, he managed to misrepresent John Stuart Mill and American law.
Moraes justified the suspension of Rumble by pointing to the “massive dissemination of misinformation” that occurs on the platform, “putting democracy at risk.” Rumble CEO Chris Pavlovski rejected what he called Moraes’ “illegal order,” something he directly addressed in his decision:
— Chris Pavlovski confuses freedom of speech with a non-existent freedom of aggression […] ignoring the teachings of one of the greatest liberals in defense of freedom of speech in History, John Stuart Mill.
Furthermore, even though Brazilian courts are not bound by the First Amendment, Moraes purposefully used this doctrine to support his decision. First Amendment law is based on the theoretical framework of the marketplace of ideas, influenced by John Stuart Mill’s book “On Liberty.” He relied on a translation of Mill to create his selective and “government-friendly” interpretation.
Jacob Mchangama is the Founder and Executive Director of The Future of Free Speech. He is also a research professor at Vanderbilt University and a Senior Fellow at The Foundation for Individual Rights and Expression (FIRE).
Jeff Kosseff is a Non-Resident Senior Fellow for The Future of Free Speech. He writes about online speech, the First Amendment, and Section 230 of the Communications Decency Act.