REALITY BITES ELON
Musk's Brazilian kerfuffle is a hard lesson about communicating without a strategy
Elon Musk, the owner of the social media company X (formerly Twitter), quickly escalated a legal conflict with Brazil’s highest court by announcing this week he would defy judicial orders to remove user accounts found to be spreading disinformation. Supreme Court Justice Alexandre de Moraes issued the order as part of a long-running judicial fight against what he calls threats against democratic institutions in the country. After initially complying, Musk announced on Monday he would keep all the targeted accounts active, would not obey any order from de Moraes and called for him to be removed from office. As a result, X faces daily fines and a possible shutdown in Brazil, one of its biggest markets in the world. An obstruction of justice investigation has also been opened against Musk.
What is underneath?
There is no absolute guarantee of free speech in Brazil’s constitution, nor has there ever been since it was enacted in 1988. For example, racial insults against an individual are a crime under a statute adopted by the Brazilian Congress in 1989, and it is regularly enforced. It is also illegal to incite criminal activity or to publicly praise it. More importantly, as Musk apparently also didn’t know, it is illegal in Brazil to insult a public official on the job for reasons of their duties. It goes without saying that defying judicial orders is also a crime.
It is also a routine development that a social media company has faced a judicial order of this kind. Since 2007, Brazilian courts have fined and temporarily shut down YouTube, Telegram, Meta’s WhatsApp and other services until they removed content that violated Brazil laws or regulations according to judicial orders. Such content has not been entirely of one ideology or another, nor have such incidents been always about politics. The tech companies have typically either negotiated compliance measures, filed legal appeals challenging the orders, or lobbied the Brazilian Congress to address their concerns through amendments or reforms.
The subject matter of Justice de Moraes’ order is part of a long-running judicial fight against what the courts believe are “threats to democratic institutions” under existing law. During the 2022 presidential campaign, then-President Jair Bolsonaro repeatedly cast doubt on the integrity of the country’s voting system but never presented evidence to any judicial or regulatory body to substantiate his claims. This drew the Supreme Court into conflict with Bolsonaro over his statements during the campaign, which further enflamed the incumbent’s supporters.
After Bolsonaro was defeated in the election, thousands of militant supporters organized a violent attack in January 2023 on the seats of the three branches of government in Brasilia, demanding the military overthrow the government and reinstate him. It was incited, organized and executed through the use of social media platforms. They directed especially violent ire at the Supreme Court building, particularly de Moraes’ chambers. The high court is now engaged in a criminal investigation of that attack and Bolsonaro’s role in it, and public opinion remains strongly against what his supporters did.
Given the extensive legal powers the judiciary enjoys to intervene in these cases, de Moraes has drawn criticism from across the political spectrum for going right up to the line of that authority. This began long before this week’s kerfuffle with X.
Justice de Moraes has enjoyed the institutional support of the Supreme Court throughout. But critics in Brazil have been debating for some time about how far the defense of democracy can go before it becomes undemocratic itself, and how deeply the highest court should become embroiled in political questions. Brazil is a young democracy, and its constitution and laws do not decisively answer these questions yet. That is still up to the other two branches to settle through legislation, and the high court’s supporters say it must play the role of protector until then. But the public soundly rejects violence and illegality as a response.
Our take:
Musk apparently decided to limit the entire corporate response to public communications that he himself put out over his own service. Those communications contained and relied on misinformation, misread the Brazilian legal and political culture, and contradicted Musk’s own statements about complying with local laws in countries where he operates. In my professional opinion, these communications were not strategically thought out.
In one tweet, he argued that de Moraes “has brazenly and repeatedly betrayed the constitution and people of Brazil” and “should resign or be impeached,” when the judge has not violated the constitution - however he might have offended American advocates of our First Amendment - nor were his orders unusual for social media companies operating in Brazil.
The Brazilian Congress, despite its pronounced conservative tilt, will ignore Musk’s call for impeachment. Bolsonaro himself tried that against de Moraes in 2021 and got nowhere. The former president’s discourse and his grasp on the presidency became increasingly detached from reality and he was the first Brazilian president in history to be defeated for re-election. That’s saying something about the will of the Brazilian people.
Musk’s statements are contradicting his statements last year defending the company’s compliance with orders by the Indian government to take down citizen journalist coverage of farm protests in 2020. In June 2023, after meeting Prime Minister Narendra Modi in New York, Musk said that “Twitter doesn’t have a choice but to obey local governments. If we don’t obey local government laws, we will get shut down.” A year earlier, he’d gone even further in a tweet: “By ‘free speech’, I simply mean that which matches the law. … [g]oing beyond the law is contrary to the will of the people.” Those quotes were immediately resurfaced this week.
The Brazilian news media is very vibrant and a lot more free than in India. Reporters and columnists from across the political spectrum have had a field day challenging Musk’s statements this week. Indeed, Brazilian culture feasts on humiliating the rich and powerful in public, particularly foreigners. It unites Brazilians across ideologies and regional differences almost as much as soccer. Musk made it easy for them this week, and he will end up harming efforts by Brazilian conservatives who might want to influence the policy debates around settling questions of free speech under Brazilian law.
Musk also hurt an already wounded Bolsonaro, reminding a lot of people why they voted against him in 2022. President Lula da Silva, suffering self-inflicted political wounds from his own gaffes in recent weeks, was delighting this week in the anti-foreigner, anti-billionaire sentiment provoked by Musk. He will likely get a boost in public approval.
Brazil is a democracy, albeit a different one from the United States. It’s certainly legal in Brazil to not like laws, and to take measures to challenge them or criticize them, but it takes time and methodical thinking. Defying them is a different animal. Anyone who runs a multinational corporation knows that. If you’re going to challenge any government, you’ll need a strategy that plots out how you’ll achieve your objectives. Like many in my profession, I do that work every day.
Musk could have put Alexandre de Moraes on his back foot in this dispute had he developed a strategy to do it. Instead, he just tweeted. My good friend Thiago de Aragão theorized to the Washington Post this week that Musk’s intention might be to “crown and legitimate his narrative” that he’s “a champion of free speech” by X being shut down in Brazil. I think Thiago is right that this was Musk’s impulse. The thinking seems to have ended there, given the consequences.
The legal danger for X is now far greater than it was before. In just a few posts, Musk exposed himself, his company and his employees in Brazil to serious liability that may be difficult to unwind if he persists. His only allies in the country are increasingly unpopular, will lose ground as a result, and his own reputation is tarnished there. In short, this was a lesson for corporate leaders in how to snatch defeat from the jaws of potential victory. Be strategic, not impulsive. Otherwise, you won’t get far.
WHAT WE’RE WATCHING:
An federal court in Argentina ruled that the evidence provided has proven that Iran was behind the 1994 terrorist bombing of the AMIA Jewish community center in Buenos Aires. The ruling was a vindication of the work of Alberto Nisman, the crusading prosecutor who had mounted the case against Iran and was found shot dead in his home in 2015 under mysterious circumstances.
Readers’ Note:
This week you’re getting two editions for the price of one. My colleague, Jairo Gonzalez Ward, is also writing on the diplomatic conflict between Ecuador and Mexico and his view on the larger significance. Take a look and please share your own views on Substack. We welcome the discussion!