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FAIR
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NYT's Bad Reporting on Brazil Predictably Used by GOP to Attack Democracy There Brian Mier ([link removed])


House Judiciary Committee: THE ATTACK ON FREE SPEECH ABROAD AND THE BIDEN ADMINISTRATION’S SILENCE: THE CASE OFBRAZIL

The GOP-led House Judiciary Committee (4/17/24 ([link removed]) ) relied on the New York Times for its narrative of how Brazil is "eroding basic democratic values and stifling debate."

The Republican-led US House Judiciary Committee released a report ([link removed]) on April 17 titled "The Attack on Free Speech Abroad and the Biden Administration's Silence: The Case of Brazil." The report accused the Brazilian Supreme Federal Court of censorship, based on an interpretation rooted in US law and Twitter company policy.

The GOP report criticizes the court's investigation and series of rulings that resulted in the deplatforming of 150 Twitter accounts. Many of these accounts belonged to individuals under investigation by Brazil's Federal Police for their roles in a coup attempt ([link removed]) on January 8, 2023, which tried to close Brazil's National Congress. Its ultimate goal was to shut down the court, arrest three of its judges ([link removed]) —including Justice Alexandre de Moraes—and install a military dictatorship.

The report came on the heels of a campaign promoted by Twitter owner Elon Musk. The ultra-billionaire had started to attack Brazil's highest court days after Michael Shellenberger, a former PR executive ([link removed]) who now calls himself an investigative journalist, posted a thread ([link removed]) titled "Twitter Files—Brazil." Shellenberger claimed to show that de Moraes—a conservative appointed by right-wing President Michel Temer—had pressed criminal charges against Twitter (rebranded as X) for refusing to turn over user data on political enemies. Musk
viralized ([link removed]) the "Twitter Files," along with a Portuguese-language video ([link removed]) in which Shellenberger called de Moraes a totalitarian tyrant.

Days later, Brazil's former secretary of digital rights, Estela Aranha, unmasked the fraud. Confronting Shellenberger publicly on Twitter, she demonstrated ([link removed]) that he had cut and pasted together paragraphs selected from the company's internal communications on a variety of different issues to create a false narrative (FAIR.org, 4/18/24 ([link removed]) ). The paragraph about criminal charges referred not to de Moraes, but to GAECO, the Sao Paulo district attorney's office's organized crime unit, which pressed charges after Twitter refused to turn over user data on a leader of Brazil's largest cocaine-trafficking organization. Shellenberger apologized ([link removed]) in Portuguese, admitting he had no proof that de Moraes had pressed charges against
Twitter, then left Brazil.

The eight-page congressional report parroted Musk and Shellenberger's criticism of the deplatforming of Twitter users, and claimed that ordering the removal of specific posts constitutes "censorship." Surprisingly, for a report authored by a committee chaired by inner-circle Trump ally Jim Jordan, the most cited journalistic source for the document is the New York Times.


** 'Going too far?'
------------------------------------------------------------
NYT: To Defend Democracy, Is Brazil’s Top Court Going Too Far?

The New York Times (9/26/22 ([link removed]) ) reported that Brazil's highest court had taken a "repressive turn," "according to experts in law and government"—with experts who disagreed with that assessment largely ignored in the Times' reporting.

A Times article (9/26/22 ([link removed]) ) published five days before Brazil's 2022 first-round presidential election, headlined "To Defend Democracy, Is Brazil’s Top Court Going Too Far?," was cited seven times in the Judiciary Committee report. Its central argument is that, "emboldened by new powers the court granted itself in 2019," Brazil's Supreme Federal Court—especially de Moraes, who oversaw the Superior Election Court during the 2022 elections—had taken a "repressive turn."

To fit its narrative, the Times cherry-picked excerpts from the March 14, 2019, decree issued by then–Chief Justice José Dias Toffoli:

The court would investigate "fake news"—Mr. Toffoli used the term in English—that attacked “the honorability” of the court and its justices.

Compare this to the actual paragraph:

Considering the existence of fraudulent news ("fake news"), slanderous accusations, threats and misdeeds cloaked in animus calumniandi [attempt to defame], defamandi [defamation] and injuriandi [injury], which undermine the honor and security of the Federal Supreme Court, its members and their families, it is resolved, in accordance with Article 43 and our internal rules, to start an inquiry to investigate the facts and corresponding offenses in all their dimensions.

Whereas a casual reader of the Times piece, making an association with Donald Trump's bad-faith use of the term "fake news," might assume that the decree extends power to the court to repress any speech that offends them personally, the language in the decree, which was upheld as constitutional ([link removed]) in a 10-1 vote by the Supreme Federal Court in 2020, clearly links the investigation to four crimes under Brazilian law: fraud, attempt to defame, defamation and injury.

Toffoli's decree spurred healthy debate among legal scholars, but the powerful Order of Brazilian Lawyers (OAB), which has seven times higher membership ([link removed]) than the American Bar Association and manages Brazil's equivalent of the bar exam, immediately endorsed the investigation ([link removed]) . This fact was left out of the Times article, which skewed the debate ([link removed]) to suit its narrative by providing one positive, one neutral and five negative quotes from Brazilian "experts" on the investigation.


** A different system
------------------------------------------------------------
Marshall Project: U.S. Marshals Act Like Local Police With More Violence and Less Accountability

US Marshals kill an average of 22 suspects and bystanders a year (Marshall Project, 2/11/21 ([link removed]) ).

Brazil and the United States have very different legal systems. The United States Marshals ([link removed] U.S. Marshals protect the,responsibility that permits no errors) are the enforcement arm of the US federal court system, with one of its primary functions being to assess, investigate and mitigate threats against judges.

With expanded powers that enable it to arrest fugitives, US Marshals averaged 90,000 arrests a year ([link removed]) between 2015 and 2020, killing 124 people in the process. This included innocent bystanders like a teenage girl killed ([link removed]) by US Marshal Michael Pezzelle in Phoenix, Arizona, when he opened fire on a vehicle she was sitting in—which, despite coverage in USA Today (2/11/21 ([link removed]) ), was not deemed a worthy enough example of judicial overreach to be covered in the Times.

The US Supreme Court has its own police force, with 189 officers, which operates intelligence and investigation units ([link removed]) . Although its power to initiate investigations is more limited than the Brazilian Supreme Court, it recently conducted an investigation ([link removed]) on the leak of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization.

Brazil does not have a judiciary police force. According to the 1988 Constitution, the attributes of judiciary police enforcement ([link removed]) are granted to the (notoriously corrupt ([link removed]) ) state civil police; in the case of the Supreme Federal Court, these powers have been delegated ([link removed]) to the federal police. It was the failure of this system to adequately respond to the rise of threats against Supreme and Superior Electoral Court ministers that led Chief Justice Toffoli to issue his decree delegating power to de Moraes to start and oversee federal police investigations of such threats.


** Threats against judges
------------------------------------------------------------

At the time Toffoli issued his decree, in 2019, there had been a surge in threats against judges, especially ([link removed]) those in the Supreme and Superior Electoral courts, which had initiated an election fraud investigation ([link removed]) against the Jair Bolsonaro presidential campaign in October 2018. This increase in threats against the judiciary parallels a similar scenario with the rise of Trumpism in the United States, where the annual number of violent threats ([link removed]) against judges rose from 926 in 2015 to 4,511 in 2021.
Eduardo Bolsonaro Video

Former Brazilian President Fernando Henrique Cardoso said that Eduardo Bolsonaro's threats against the Supreme Federal Court "smell of fascism" (El País, 10/21/18 ([link removed]) ).

One example of a menacing statement ([link removed]) that was widely shared on social media was made by Bolsonaro's son, congressmember Eduardo Bolsonaro, eight days before the second round of the 2018 presidential elections. Investigative journalist Patricia Campos Mello had published an article in the Folha de Sao Paulo newspaper (10/18/18 ([link removed]) ) exposing a group of millionaires—including some, like Luciano Hang, who are portrayed as harmless business executives in the Times article—for spending R$12 million to spread slanderous disinformation against the elder Bolsonaro's electoral rival, Fernando Haddad, on Meta's WhatsApp platform. This campaign included targeting evangelical voters with doctored photos falsely claiming that, as mayor, Haddad had
distributed baby bottles with penis-shaped nipples to students in Sao Paulo's public pre-school system.

Three days later, in a video seen by hundreds of thousands of people, Eduardo Bolsonaro said ([link removed]) :

To shut down the Supreme Court, we don't even have to send a single jeep or soldier. íIf you capture a Supreme Court justice, do you think anyone will protest in their defense?

Across Brazil, hundreds of Bolsonaro supporters upped the ante, including retired army Col. Carlos Alves. In a widely circulated YouTube video (10/22/18 ([link removed]) ), Alves threatened to shut down the Supreme Federal Court, and slandered Superior Electoral Court president Rosa Weber. This triggered requests ([link removed]) by the Supreme Court and the commander of the army to open a new investigation against Alves, which was conducted by the Federal Police ([link removed]) .

Toffoli's decree was issued in response to the growing threats and the inability of the justice system to respond efficiently to them. The immediate result of his designation of de Moraes as head of the investigation was that he became the target of a hate campaign by Bolsonaro's internationally connected support network ([link removed]) , which then worked to build a legal argument ([link removed]) that, as a victim of their threats, he was unqualified to investigate his aggressors. Meanwhile, the attacks against the Supreme Court and Electoral Court intensified during a four-year build-up that culminated in the 2023 coup attempt.

As the idea of destroying the Supreme Federal Court and installing a dictatorship became the primary rallying cry of the Bolsonarista far right, de Moraes ordered the arrest of congressmember Daniel Silveira, who, as Rio de Janeiro city councilor, once submitted a bill ([link removed]) that would have enabled military police to harvest the organs of their shooting victims.

The New York Times article framed his imprisonment and subsequent eight-year, nine-month sentence as the result of a single live stream with a few vague threats. In fact, it was the result of an investigation by the attorney general's office into Silveira's four years ([link removed]) of systematically inciting the violent abolition ([link removed]) of the democratic rule of law. Silviera had abused his authority as an elected official to repeatedly call on the army to shut down the Supreme Federal Court, while disobeying court orders to cease and desist.


** A script for a coup
------------------------------------------------------------
UOL: O que diz a minuta do golpe encontrada na casa de Anderson Torres. Veja a íntegra

UOL (1/12/23 ([link removed]) ) published a detailed coup recipe found at the house of Bolsonaro's justice minister.

It may be news to the Republicans who cited the Times in their report on "censorship," but Brazil's legal system has all kinds of significant differences from that of the US. It may not be standard practice in Brazil for an investigation judge to rule on the results of his own investigation, but the Times didn't think it was significant enough to dwell on as a sign of judicial overreach in its 37 articles on Operation Car Wash when Judge Sergio Moro did it during his now-reversed witch hunt against Lula ([link removed]) .

Furthermore, Brazil's speech laws, closer to France or Germany's than to those in the US, are based on a harmony of rights ([link removed]) , meaning that no essential right can be used to infringe on another essential right. This means, for example, that the kind of advocacy for pedophilia promoted by an organization like NAMBLA ([link removed]) , viewed as protected free speech by the ACLU ([link removed]) , would be illegal in Brazil, due to its infringement on the right to health and happiness for children, as laid out in its Statute of the Child and Adolescent. It means that, like in Germany, advocacy for Nazism is a crime, as it is deemed to infringe on the human rights of the groups that have been historic victims of Nazism.

And it means that in Brazil's short election seasons, certain types of speech are prohibited if they infringe on the essential right of fair and balanced elections. In practical terms, this means that negative campaign ads and spreading disinformation about other candidates is illegal, and in every election season, the Superior Electoral Court orders candidates to take hundreds of ads off the air for violating these principles, as it did to both Jair Bolsonaro and Lula in the 2022 election season (FAIR.org, 4/18/24 ([link removed]) ).

During the three months following the Times article, two Bolsonaro supporters were arrested trying to detonate a bomb ([link removed]) in Brasilia's airport, and another group of supporters staged a violent attack ([link removed]) on Brazil's Federal Police headquarters. Thousands of Bolsonaro supporters camped out ([link removed]) in front of military barracks demanding that they take action and shut down the Federal Supreme Court.

On January 8, following the details of a written plan ([link removed]) for a coup d'etat seized in Bolsonaro's Justice Minister Anderson Torres' house, a crowd invaded the National Congress and the Supreme Federal Court building with the goal of pressuring Lula to declare a state of siege, which would have turned national security over to the armed forces. Meanwhile, high-tension electrical towers were sabotaged ([link removed]) across the country.


** News designed for 'bad actors'
------------------------------------------------------------
NYT: HERR HITLER AT HOME IN THE CLOUDS

The New York Times (8/20/1939 ([link removed]) ) has been running "Nazi next door ([link removed]) " pieces for a long time now.

The New York Times has a long tradition of promoting fascists ([link removed]) , while crying censorship whenever a leftist government uses its own laws to protect itself against coups, as it has done with Nicaragua ([link removed]) , Ecuador ([link removed]) , Venezuela ([link removed]) , Bolivia ([link removed]) , Argentina ([link removed]) and Cuba ([link removed]) .

This also isn't the first time the GOP has used Times reporting to advance a right-wing agenda. Lawmakers across the country have repeatedly cited Times articles to justify restricting and even criminalizing gender-affirming health care for trans youth (GLAAD, 4/19/23 ([link removed]) ).

When confronted with the Times' role in empowering—in GLAAD's words—"the already powerful to do even more harm," publisher A.G. Sulzberger (CJR, 5/15/23 ([link removed]) ) dismissed such concerns, scoffing at critics who think "news organizations should not publish information that bad actors might misuse." “In general,” he responded,

independent reporters and editors should ask, “Is it true? Is it important?” If the answer to both questions is yes, journalists should be profoundly skeptical of any argument that favors censoring or skewing what they’ve learned based on a subjective view about whether it may yield a damaging outcome.

In other words, Sulzberger claims that the Times is just reporting the facts; it's not their fault if "bad actors" are misusing those facts. It's the old "objectivity ([link removed]) " argument, repackaged in a time when even many within the news industry ([link removed]) are acknowledging that objectivity is impossible. But the trouble is, as FAIR showed with the paper's trans coverage, Times reporting fails Sulzerberger's own "true" and "important" test (FAIR.org, 5/19/23 ([link removed]) ).

Likewise, in the case of the paper's Brazil/Twitter coverage, the problem is not that the Times' good reporting is being misused by bad actors; it's the paper's bad reporting that's directly feeding yet another right-wing smear campaign.

Looking back at the timing of the article, five days before Brazil's first-round presidential election, the lack of context and the imbalanced skewing of the Brazilian legal community's robust debate around Toffoli's decree in favor of its detractors, it's no wonder that it's now being cited by Republican officials.

After a second congressional subcommittee hearing on "censorship" in Brazil, held on May 7, it seems clear Republicans are preparing to use "Biden's support for censorship in Brazil" as a bullet point for Trump in the upcoming presidential elections. Keep this in mind as the New York Times continues its coverage on “freedom of speech” in Brazil.


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