Mill Rolls in His Grave
How Brazil's Justice de Moraes weaponized liberal philosophy and the First Amendment against free speech.
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In 2019, Dias Toffoli, then-Chief Justice of Brazil’s Federal Supreme Court, appointed fellow judge Alexandre de Moraes to lead an inquiry to investigate "fake news, false reports of crimes, slanderous reports, threats, and other infractions" that "affect the honor and security of the Federal Supreme Court, its members, and family." De Moraes soon dramatically expanded the scope of his powers to include "fake news" and propaganda aimed at democratic institutions more generally, with wide-ranging consequences for political speech in Brazil.
By 2022, when appointed President of the Electoral Court, de Moraes received expanded authority to police political speech during elections to prevent the "distribution and sharing of knowingly untrue or gravely decontextualized information affecting the electoral process”. de Moraes’ controversial methods have divided Brazilian opinion — some see him as a defender of democracy, others as the censorial Grand Inquisitor of the Brazilian public sphere.
De Moraes most recently made headlines with his suspension of conservative social media platform Rumble for allegedly allowing the dissemination of misinformation. We’re not qualified to comment on de Moraes’ application of Brazilian law, but it’s worth noting that de Moraes’ decision goes to great lengths in defending the blanket ban against Rumble based on principles of liberal philosophy and foreign legal standards, including First Amendment jurisprudence. But in doing so de Moraes manages to mangle John Stuart Mill and misrepresent U.S. free speech law.
The case stemmed from Rumble’s February reactivation of the profile of Allan Lopes dos Santos, a supporter of former President Jair Bolsonaro and target of police investigations for a series of alleged speech crimes including the dissemination of misinformation. De Moraes justified his suspension of Rumble by pointing to the social media platform’s “massive dissemination of disinformation and the possibility of the harmful and illicit use of technology and artificial intelligence, putting democracy at risk.”
Rumble CEO Chris Pavlovski rejected what he called de Moraes’ “illegal order” in a post on X, something which de Moraes addresses directly in his decision:
“Chris Pavlovski confuses freedom of expression with a non-existent freedom of aggression, deliberately confuses censorship with a constitutional prohibition on hate speech and incitement to antidemocratic acts, ignoring the teachings of one of the greatest liberals in defense of freedom of expression in history, John Stuart Mill”.
Indeed, de Moraes seemed to argue that his suppression of speech helps to foster democratic values:
“It should be noted that the use of social networks, including Rumble, Inc., to disseminate hate speech, attacks on democracy and incitement to disrespect the national judiciary is nothing new.”
His reliance on U.S. law to support this position is particularly inappropriate, as the First Amendment does not have exceptions for hate speech, attacks on democracy, or disrespecting judges.
Although Brazilian courts are not bound by the First Amendment, de Moraes purportedly used First Amendment doctrine to support his decision. Modern First Amendment law relies on the marketplace of ideas framework, which generally holds allowing speech to compete on the open marketplace is far better than government regulation. The marketplace of ideas framework can be traced to On Liberty, by philosopher John Stuart Mill whose ideas helped inspire dissents and concurrences written by Supreme Court Justices Oliver Wendell Holmes and Louis Brandeis about a century ago.
Although Mill, Holmes, and Brandeis are known for their opposition to speech restrictions, de Moraes somehow read their works to support government intervention. “The English philosopher John Stuart Mill, his 1859 work On Liberty, and precursor of the theory of the free market of ideas, developed later by Justice Holmes and Brandeis in the US Supreme Court, warned against limiting the circulation of ideas in any society, emphasizing, however, from a utilitarian point of view, the exceptional possibility of restricting this right in cases where it caused unjust harm,” de Moraes wrote, according to an English translation of his ruling.
De Moraes relied on a translation of Mill to come up with this government-friendly interpretation of his writing. What Mill actually wrote of in the portion that de Moraes quoted was the “freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived.” De Moraes interprets Mill’s marketplace of ideas to be some sort of balancing test in which the government can easily justify the regulation of harmful speech. But what Mill actually wrote about speech (and de Moraes did not quote) rejects that concept:
In the opening section of Chapter II “Of Liberty of Thought and Discussion,” Mill states that:
“the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”
Mill goes on to say that:
“Those who desire to suppress it, of course deny its truth; but they are not infallible. They have no authority to decide the question for all mankind, and exclude every other person from the means of judging. To refuse a hearing to an opinion, because they are sure that it is false, is to assume that their certainty is the same thing as an absolute certainty. All silencing of discussion is an assumption of infallibility.”
In fact, Mill famously goes so far as to argue that:
“If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”
It is difficult to read these quotes as supporting a judge’s decision to suspend an entire social media platform due to concerns about misinformation.
De Moraes also relies on two sentences from Holmes’s 1919 opinion in Schenck v. United States, which upheld the imprisonment of a man who distributed brochures that criticized the military draft:
“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”
Shenck is famous not only for articulating the low-burden “clear and present danger” First Amendment test but also for the overused and half-quoted line that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” The “fire in a crowded theater” trope has become a placeholder justification whenever an official wants to ban First Amendment-protected speech.
What de Moraes failed to mention was that later in 1919, in a dissent in Abrams v. United States, Holmes repudiated the Schenck reasoning while articulating the modern marketplace of ideas framework: “the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”
He also failed to mention that in a 1969 opinion, Brandenburg v. Ohio, the Supreme Court substantially changed the “clear and present danger” test by replacing it with a narrower exception for imminent incitement of lawless action.
Although de Moraes seems to think otherwise, under the First Amendment, speech is presumptively protected from government regulation unless it falls within a narrowly defined category of unprotected speech. As Chief Justice John Roberts wrote in 2010, the United States does not have a “free-floating test for First Amendment coverage,” and the First Amendment does not “extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.” Likewise, the Supreme Court has firmly rejected attempts to carve out false speech as an exception to the First Amendment. “Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth,” the Court wrote.
For years, de Moraes has been using his position of power to strong-arm individual speakers and social media platforms, all in the name of fighting misinformation. De Moraes has taken his fight for truth and democracy so far that he and the Brazilian Electoral Court have ordered the blocking of political speech that they deem to constitute “gravely decontextualized information” Yet, de Moraes’ decision is a textbook example of just such a transgression. One would expect that such a man would pay more careful attention to the truth.
Jacob Mchangama is the Executive Director of The Future of Free Speech and a research professor at Vanderbilt University. He is also a senior fellow at The Foundation for Individual Rights and Expression (FIRE) and the author of Free Speech: A History From Socrates to Social Media.
Jeff Kosseff is a Non-Resident Senior Fellow at The Future of Free Speech and the author of the new book Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation.
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