The Brazilian Supreme Court Stands Ready to Pressure Social Media Giants. What Will the U.S. Supreme Court Do?
On January 8th, 2023, crowds supporting former president Jair Bolsonaro stormed Brazil’s National Congress and other government buildings in Brasilia.[[1]] Many supporters broke windows and vandalized government property in response to their candidate’s recent loss to President Luiz Inácio Lula da Silva.[[2]] For many in the United States, these riots sparked eerie flashbacks to the January 6, 2021, riots on the U.S. Capitol Building by President Trump supporters.[[3]]
In the aftermath of the attacks in Brazil, many critics blamed social media for the proliferation of hate speech and right-wing propaganda that led to the insurrection.[[4]] Of those critics is Justice Alexandre de Moraes of the Brazilian Supreme Court, who recently issued a judicial order mandating Facebook, Twitter, TikTok, Instagram, and other social media companies to block the accounts of people who instigated the January 8th attacks.[[5]] The Brazilian Supreme Court imposed a 100,000 real ($20,000) per day fine for noncompliance.[[6]] Messaging app Telegram failed to comply with the order and were recently fined an additional 1.2 million reals ($236,495) for failing to take down, or deplatform, the accounts.[[7]] Some scholars fear that Justice Moraes’ actions go a step too far, whereas others praise the Brazilian’s strict action.[[8]]
Debates over deplatforming—meaning a removal of a user from a communication website—are not only happening in Brazil.[[9]] For example, laws passed in Texas and Florida to restrict social media companies from deplatforming users for political speech are currently in constitutional limbo.[[10]] U.S. circuit courts are split on the issue and are waiting for the U.S. Supreme Court to rule on the debate in its upcoming term.[[11]] Unlike the Brazilian Supreme Court, the U.S. Supreme Court would not force social media companies to deplatform users.[[12]] Rather, the question is whether social media companies have the editorial rights to deplatform users themselves.[[13]] In other words, the case rests on whether the laws in Florida and Texas could require social media giants, like Twitter and Facebook, to keep from suspending or banning users’ accounts.[[14]]
Notwithstanding the debates about deplatforming in the U.S., it is clear the Brazilian Supreme Court and Justice Moraes stand ready to control social media companies in their own jurisdiction. Although critics of the swift judicial action point to free speech concerns, supporters point to the broken glass and destroyed government property of the Brazilian Congress as an example of what happens when social media goes unregulated. [[15]]
Free speech laws in Brazil differ greatly than those in the U.S., so the U.S. Supreme Court will not mirror the orders of its Brazilian counterpart.[[16]] Nevertheless, the U.S. Supreme Court could strike down the Florida and Texas legislation and permit social media companies to deplatform users as they wish.[[17]] In a world where online tensions turn into real life danger, some think it’s the very least the U.S. Supreme Court could do to curb the spread of extremist rhetoric plaguing the world’s online platforms.
Frano Katalinic is a staff member of Fordham International Law Journal Volume XLVI.
[1] See Doha Madani, Bolsonaro Supporters Storm Brazil’s Capital as Ex-president is Believed to be in Florida, NBC News (Jan. 9, 2023, 10:56 AM), https://www.nbcnews.com/news/world/protesters-storm-brazils-congress-support-former-brazilian-president-j-rcna64816.
[2] See id.
[3] See id.
[4]See Mauricio Savarese & Joshua Goodman, Crusading Judge Tests Boundaries of Free Speech in Brazil, ABC News (Jan. 25, 2023, 2:11 PM), https://abcnews.go.com/International/wireStory/crusading-judge-tests-boundaries-free-speech-brazil-96674655.
[5] See id.
[6] See id.
[7] See Ananya Upadhya, Brazil Supreme Court Fines Telegram 1.2M Reals for Failing to Suspend Bolsonaro Supporter Accounts, Jurist (Jan. 26, 2023, 11:48 AM), https://www.jurist.org/news/2023/01/brazil-supreme-court-fines-telegram-1-2m-reals-for-failing-to-suspend-bolsonaro-supporter-accounts/.
[8] See Jack Nicas, He is Brazil’s Defender of Democracy. Is He Actually Good for Democracy?, N.Y. Times (Jan. 22, 2023), https://www.nytimes.com/2023/01/22/world/americas/brazil-alexandre-de-moraes.html.
[9] See Clay Calvert, Supreme Court Must Step in to Defend the Editorial Rights of Social Media Platforms, The Hill (Jan. 29, 2023, 9:30 AM), https://thehill.com/opinion/judiciary/3834966-supreme-court-must-step-in-to-defend-the-editorial-rights-of-social-media-platforms/.
[10] See id.
[11] See id.
[12] See id.
[13] See id.
[14] See id.
[15] See Nicas, supra note 8.
[16] See Savarese & Goodman, supra note 4.
[17] See Calvert, supra note 9.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.