The Supreme Federal Court is experiencing an extravagance and Moraes needs to be taken to the couch, says Marco Aurélio Mello

15:43

Minister Alexandre de Moraes' decision to ban Jair Bolsonaro from using social media, directly or indirectly, and authorize his arrest if interviews he gave are disclosed by third parties on digital platforms has reignited the debate on the limits of freedom of expression and raised questions about the possible curtailment of journalistic activity. For most experts interviewed by Estadão, there is a risk of prior censorship.

On Monday the 21st, Moraes ordered the former president's defense to provide clarifications regarding statements made to journalists upon leaving a meeting with allies in the Chamber of Deputies. In front of the press, Bolsonaro displayed the electronic ankle bracelet imposed by a previous Supreme Court ruling and declared,"It's a complete humiliation." The images were recorded by media outlets and circulated on social media.

Criminal experts interviewed by Estadão acknowledge legal support for the imposition of the precautionary measure restricting the use of social media by those under investigation. The point of divergence, however, lies in Moraes's new order, which expanded the scope of the previous measure to include any"transmission, retransmission, or posting of videos, audio, or transcripts of interviews on third-party social media platforms." According to the minister, Bolsonaro's conduct in this episode violates this order.

It is precisely this expansion that experts consider vague and based on an expansive interpretation of the original measure. They warn that the new formulation leaves room for excesses, such as prior censorship, disproportionate restrictions on the person under investigation, and the curtailment of journalistic activity.

The contested measure stems from a previous ruling on July 18, when Moraes had already imposed a series of restrictions on Bolsonaro, including the use of an electronic ankle bracelet, a curfew, and a ban on contact with other suspects, as well as a ban on the use of social media. The new order extends this ban to content posted by third parties, even if the former president does not have direct control over its publication.

For Luiz Gomes Esteves, a professor of Constitutional Law at Insper and a researcher at USP, the precautionary measure was drafted in an overly generic manner and creates legal uncertainty."It's as if Moraes could arrest him at any moment," he states. The professor also criticizes the fact that the expansion of the measure was not submitted to the First Chamber of the Supreme Federal Court, where the original petition is being processed."If the text remains as it is, we have prior censorship."

As a teaching example, Esteves asks:"If Bolsonaro is photographed or filmed without consent by a media outlet and the content is published on social media, can he be arrested? I don't know." According to him, the decision raises doubts even in situations that are not directly related to the original reason for the precautionary measure.

This area of uncertainty is also highlighted by Marcelo Crespo, coordinator of the Law program at ESPM-SP. He believes the decision overextends the scope of the ban and could violate constitutional guarantees."The measure failed to detail what this situation of third-party use of networks would entail," he says."This compromises legal predictability and could have a chilling effect on the press and the investigated party's right to express themselves."

Constitutional lawyer André Marsiglia also sees excesses in the decision. He raises doubts about its limitations:"If statements are published offline but later replicated on digital platforms, is there a risk of arrest? In addition to prior censorship, Moraes invents retroactive censorship and selective censorship, only on social media," he adds.

Criminal lawyer and former president of the Brazilian Institute of Criminal Sciences (IBCCRIM), Renato Vieira, points out another weakness: the extension of the precautionary measure occurred without any prior notice from the Attorney General's Office, the body that has the legal authority to request this type of measure."The decision was made without prior notice from the Attorney General's Office. The correct approach would have been to wait for formal notice before authorizing something as extreme as pretrial detention."

On the other hand, lawyer Augusto de Arruda Botelho considers the accusation of censorship exaggerated, even though he acknowledges clarity issues in the measure's wording."Ideally, the minister would have clarified the outlines of the precautionary measure to avoid overly broad interpretations," he states.

The lawyer also considers that the restrictions imposed are well-founded given the gravity of the facts investigated.