The Supreme Court (STF) has ruled that Article 19 of the Brazilian Internet Civil Framework is unconstitutional. This legislation was debated by lawmakers and the nation for three years before being enacted by then-President Dilma in 2014. For over ten years, this article governed internet interactions, championing freedom of speech, and preventing impunity for those who commit crimes online. However, in the year leading up to an election, the left realized its vulnerability in the new digital world and campaigned for the Supreme Court to agree with an extraordinary appeal allowing the platforms themselves to engage in censorship before filing a recourse to the courts, as stipulated in Article 19. The left had previously attempted, and failed, to push through censorship via Congress. While in Beijing, Lula even asked Xi Jinping for an envoy to teach the Brazilian government how to succeed. And Janja explained that this was because the right prevails in the digital space. Just recently, the Lula administration doubled down on control, raising the age rating for Instagram to 16.

So, the Supreme Court has deemed the article unconstitutional. Now what? Will the Court concoct a distinct article, different from the one debated, decided, and approved by legislators and signed into law by the president? To draft a law without the power granted by the vote, as stated in the sole paragraph of the Constitution’s first article (“all power emanates from the people, who exercise it through their elected representatives or directly”)? Those who disagree with Justice André Mendonça’s exceptional ruling propose a new text, as if they were deputies or senators debating a bill in a committee. They suggest that platforms should summarily remove child pornography, incitement to suicide, human trafficking, and terrorism. But this is already covered by platform terms of service, which have algorithms to flag and block such posts. There is also an option on platforms to report harmful publications.

However, these proposals also include censorship of “threats to the Democratic Rule of Law.” And we all know that the primary threat is the failure to comply with the Constitution, especially by those who swore to defend it… This enters the political and subjective realm. What is a threat to the government? The opposition. What is a threat to the opposition that used to be the government? The current government, in what should be a healthy rotation of power. What will actually be censored is the digital agora, which amplifies the voice of each primary source of power. To prevent this, Americans have their solid democracy anchored in freedom of speech. And that applies to both Republicans and Democrats. There is also the danger that this will discourage platforms, making them abandon Brazil, and that the State will impose its own controlled platforms, as in China.

An essay by George Orwell teaches that censorship only exists if public opinion allows it. There was an immense omission by a large part of the media, which contradicts basic principles of journalism: the defense of liberties. There is always a cliché phrase to justify the suppression of liberties. The preamble of the abominable AI-5 (Institutional Act 5) argued it would be to “ensure the democratic order, based on freedom and respect for human dignity.” It is impossible to defend democracy without respecting liberties and due process of law. Freedom of speech is the core of democracy; censorship is the face of arbitrary rule, of tyranny. André Mendonça honors the University of Salamanca, where he earned his doctorate — one of the best on the planet, marked by humanism, where Miguel de Unamuno was rector. The justice’s ruling is an anchor for democracy. The dissenting rulings are the ones adrift. Like the hummingbird in the fable diligently carrying drops in its beak to combat the forest fire, his ruling sprinkles upon us an exemplary defense of free speech so that the censorship flames may be extinguished and the heterogeneous forest of democracy may flourish.

A brief reflection on André Mendonça’s ruling. As in the fable of the hummingbird that, drop by drop in its beak, battled the forest fire, the justice performed his duty in defending liberties and the institutional order. Defying the principle that a journalist should not be enthusiastic about the news, I expressed on my YouTube channel that the didactic ruling should be published as a book, for teaching in law schools. Jurists’ opinions confirmed my enthusiasm. But I became even more certain of the fundamental importance of the ruling — although it was the losing vote — upon reading supportive editorials in two of the country’s most important newspapers: Folha de S.Paulo and O Estado de S. Paulo.

Folha’s editorial stated in its headline: “Mendonça is right.” It affirmed that the justice’s stance safeguards fundamental rights that “have been disregarded.”  It also denounced that “secret orders, where the accused cannot even ascertain the accusation, hark back to the worst practices of absolutism and constitute an abomination.” Folha then prognosticated that “the justice’s judgment, marked by common sense and adherence to constitutional principles, is likely to remain a distinct minority within the apex of the judiciary, the STF.” It concluded by observing that the Supreme Court “is increasingly encroaching upon the prerogatives of the Legislative branch.”Estadão was even more blatant in its Saturday editorial. Its title alone characterized the justice’s contribution as “a ruling for reason.”  The paper championed Article 19 of the Internet Civil Framework as a model that thwarts both private censorship and impunity. The editorial said that the preceding votes in that case, cast by justices Fux and Toffoli, “trample on due process.” I summarize Estadão‘s dense analysis here: “Against these alarming tendencies, André Mendonça’s vote arose. With robust reasoning, he reasserted freedom of speech as a pillar of the Democratic Rule of Law and rejected judicial activism. Deliberation is the role of Congress; it is not the Supreme Court’s prerogative to rewrite laws. Mendonça’s vote is not only technically impeccable; it is an institutional warning and a reaffirmation of the separation of Powers.” And it concluded incisively: “In times of regulatory hysteria, it is good to know that there still remains, within the nation’s highest Court, someone who grasps that freedom of speech is the first and last bastion of free societies.”