The attacks on freedom of expression and the prior censorship of the STF and TSE

It is known that freedom of expression is one of the strongest pillars of democracy. Through the manifestation of thought, citizens issue opinions, ideas, criticisms, express their intellectual, artistic, scientific activities, etc.

The importance of exposing the thought is so far-reaching that it is protected in our Federal Constitution of 1988, being considered as a stony norm, therefore, immutable. Thus, when the state power starts to silence the citizen, we are facing a totalitarian regime.

There is no doubt, despite the breadth of such a principle, that it is not absolute, and the practice or encouragement of conduct typified in our legal system should be prohibited. Our legal framework provides for punishments for those who, under the excuse of freedom of expression, commit crimes. In the criminal field we have typified, among others, injury, defamation and slander. In the scope of civil law, there is the possibility for the offended party to file damages against the offender. But when it’s not about these illicit acts, freedom of expression needs to be protected.

It is worth mentioning that paragraph 2 of article 220 of CF/88, which prohibits any and all censorship of a political, ideological and artistic nature, and therefore there is no need to speak of prior censorship.

One cannot conceive of selective freedom of expression in which citizens can express themselves on any idea, less criticizing Supreme Court ministers or electronic voting machines.

Supreme Court justices, in the recent past, have always defended the breadth of freedom of expression. Alexandre de Moraes, when judging the unconstitutionality of a section of the Electoral Law that prohibited satire in the 2018 elections, took this position: “Whoever does not want to be criticized, satirized, stay at home. Do not be a candidate, do not offer to hold political office. It’s been a rule since the world was a world”.

Celso de Mello, when deciding on complaint 15243, “Freedom of the press, qualified by its essentially constitutional nature, (…) transmit information and ideas by any means, except, however, for the possibility of judicial intervention – necessarily a posteriori”.

Several other excerpts from votes of eminent jurists could be cited.

But it looks like something has changed. Several citizens, journalists or not, when criticizing the STF ministers, had their freedom restricted, with arrests, bans on publications on social networks or demonetization of their media channels. These decisions, in my view wrong, started with the so-called inquiry of the fake newsnamed by Minister Marco Aurélio as the investigation of the end of the world and digital militias.

Roberto Jefferson, even with the opposite position of the Public Ministry and Attorney General’s Office, had his arrest decreed almost a year ago. As far as we know, no criminal complaint. The PGR, on that occasion, spoke out against Jefferson’s arrest, understanding that “it would represent a prior censorship of freedom of expression”.

Allan dos Santos, journalist, who owned the YouTuber channel, also had his arrest decreed, contrary to the opinion of the prosecutor.

Federal deputy Daniel Silveira, today benefiting from a pardon/grace decree from the President of the Republic, despite his parliamentary immunity, had been sentenced to more than 8 years of imprisonment.

Currently, close to the elections, the ministers of the Superior Electoral Court and the Supreme Court have positioned themselves against any criticism of the voting system through electronic voting machines, as if it were a mortal sin to doubt its reliability.

The president of the TSE, Minister Fachin, in a meeting with lawyers, made emphatic, if not threatening, statements to those who discredit or criticize the electoral system. He said: “The Electoral Justice of every country will not sit back… society does not tolerate electoral denialism. The attack on electronic voting machines is an attack on the votes of the poorest.”

In my opinion, electronic voting machines are safe and reliable, but I don’t see any obstacles to their improvement. The printed auditable vote would have thrown a shovel of lime to all this discussion and the disbelief in our electoral system, fighting for greater transparency for the voter.

What I do not agree with is the censorship of not being able to criticize the Judiciary’s attacks on those who act in this way. The Superior Electoral Court, responsible for the fairness of the elections, should carry out campaigns to clarify the security of the ballot boxes, and not send messages in a dominating tone to its critics.

One cannot conceive of selective freedom of expression in which citizens can express themselves on any idea, less criticizing Supreme Court ministers or electronic voting machines.

Censorship, in addition to silencing the citizen, amputates his soul, freedom and democracy itself.

Bady Curi Neto is a lawyer, former judge of the Regional Electoral Court of Minas Gerais (TRE-MG), university professor and founder of the Bady Curi Advocacia Empresarial Office.

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