Moraes, Musk, and Government Accountability

The Constitution’s separation of powers system was created precisely in case a Brazilian Supreme Court Justice embarked on a crusade to illegally censor X, formerly Twitter, across his nation. 

Earlier this year, Supreme Court Justice Alexandre de Moraes and Silicon Valley billionaire Elon Musk clashed for the first time. On April 6, de Moraes arbitrarily ordered the billionaire’s company to take down numerous accounts on behalf of the Brazilian Supreme Court. 

In Brazil, seven justices form the country’s Superior Electoral Court, three of whom are also on the Supreme Court. Justice de Moraes, one of these three, presides over the Superior Electoral Court.

Musk reacted by taunting de Moraes online, and accused the justice of “brazenly and repeatedly” betraying the Constitution and people of Brazil. Shortly afterwards, de Moraes placed the electric car mogul under investigation for allegedly propagating a “disinformation campaign.”

Another instance saw de Moraes demand a fresh wave of accounts be censored over the summer, threatening to fine X $18,000 if they did not comply within two hours. Even after X reluctantly took down the accounts, de Moraes heaped an additional $126,000 fine on the social media platform. Musk once again spoke out, saying once that “the law is violating the law.”

Article 5, section XI of Brazil’s Constitution ensures the right to freedom of expression in terms of intellectual, artistic, scientific, and communication activities. It also protects these essential liberties against censorship and license. Section VIII of the same article notes that nobody will be deprived of these kinds of rights because of a kind of political or philosophical conviction. 

Moreover, a Brazilian law that establishes the rights of internet users in the country reinforces the freedom of online expression, communication, and thought in these terms laid out by the Brazilian Constitution. 

“This platform is being asked to censor content in Brazil where the censorship demands require us to violate Brazilian law! That is not right,” Musk said, referencing this law.

Most of the accounts prosecuted by de Moraes’ orders belonged to members or supporters of Brazil’s center right Partido Liberal. The justice himself was caught red handed in August ordering the arbitrary investigation of various conservative figureheads by using the Superior Electoral Court as his personal investigation branch. Regardless, he continued to demand that X accounts be taken down.

Leaked images of WhatsApp chats show de Moraes’ aides producing and retrieving reports on different people at his discretion, ignoring official protocol. The reports, however, were edited to look formal. 

The spat between the Brazilian judge and the American billionaire continued throughout the summer, as de Moraes continued to demand wave after wave of censorship. It culminated on August 30, when de Moraes decided to completely shut X down in Brazil, his word becoming law, violating the Brazilian and American principles of the separation of powers. 

De Moraes issued the order after Musk shut down X’s offices and Brazil and hence, left the company without legal representation in the country. Musk emptied the offices in Brazil because he refused to comply with some of de Moraes’ previous orders against certain accounts on the platform, meaning that the accounts in question were still in operation, and X had not paid the assigned fines imposed by the Supreme Court. 

While many Brazilians managed to get around the nationwide censure of the social media platform by using VPNs, de Moraes swiftly cracked down on those as well, leaving most residents of Brazil without access to X. Recently, Musk caved to the Supreme Court’s demands and reinstituted legal representatives in Brazil to fight back, and give X to the Brazilian people again. 

De Moraes’ actions against X demonstrate an undercutting of the Separation of Powers system, which the framers of the American Constitution worked diligently to construct and uphold. De Moraes, and by implication the Brazilian Supreme Court, began to overstep its legal jurisdiction and act like the legislative and executive branch as it dolled out fines and other legal orders against Musk and X. 

From the American perspective, to allow a member of the judiciary branch to arbitrarily investigate, prosecute, and effectively legislate in this manner would be egregiously illegal. 

The American Constitution explicitly addresses this issue by creating structural provisions so that no branch of government can legally operate with the authority of another. By carefully allocating specific powers from the people in the states to the legislative, executive, and judicial branches respectively, the Constitution prevents one branch from taking hold of more power than they are warranted.

The Brazilian Constitution has similar provisions, which is why Musk has re-ignited his legal battle against de Moraes’ arbitrary censorship orders. de Moraes has effectively made executive orders without Congressional approval, going beyond his function of interpreting the law to executing the law. 

The structural protections in the American Separation of Powers system is one of the main safeguards of liberty, because it helps keep each branch in its respective power sphere and respect the rule of law. As Justice Antonin Scalia noted in Morrison v Olson: 

“Every tinhorn dictator in the world today has a Bill of Rights. It isn’t the Bill of Rights that produces freedom. It’s the structure of government that prevents anybody from seizing all the power.”

De Moraes’ actions have demonstrated once again the importance of a sound system of government accountability, without which millions of voices may be silenced and a republic warped into tyranny. In the words of James Madison, allowing any one branch to accumulate an undue amount of power is the “very definition of tyranny.”