Justice André Mendonça, a Supreme Federal Court (STF) justice who serves as vice president of the Superior Electoral Court (TSE), voted on Wednesday (Sept. 30) to uphold his own provisional order that took down social media posts spreading what electoral authorities initially assessed as false news, namely that presidential candidate Flávio Bolsonaro (PL) would strip Our Lady of Aparecida of her title as patroness of Brazil. In his written vote, the case's rapporteur denied that the removal orders amount to prior censorship or violate religious freedom.
The case is being judged in the TSE's virtual plenary session, scheduled by the court's president, Justice Kassio Nunes Marques, on Tuesday night (Sept. 29), four days before the first round of the presidential election on Sunday, Oct. 4. As rapporteur, Mendonça cast the first vote, filing it before the session's 10 a.m. start, according to news site g1. The session remains open until 11:59 p.m. Wednesday. The other members, Kassio, Dias Toffoli, Sebastião Reis Júnior, Ricardo Villas Bôas Cueva, Floriano Peixoto de Azevedo and Estela Aranha, are expected to vote. According to InfoMoney, the original order covered 1,125 posts.
The rapporteur's vote
Mendonça wrote that the removal orders "do not constitute prior censorship." In his reading, the measure reaches exclusively the attribution to the candidate or his family of a position with no supporting evidence, while expressions of faith, the defense of Our Lady of Aparecida as patroness and debate over religion and politics remain allowed. "In cases of reasonable doubt as to the substantial equivalence of a given post, the preservation of freedom of expression recommends keeping the content up," he wrote. He also cited electoral rules that require platforms to immediately remove content identical or substantially equivalent to material already ordered down by the electoral courts, "regardless of a new specific court order."
The rapporteur called "irresponsible" the claims that his decision violated religious freedom, the argument used by Justice Flávio Dino of the STF to restore the posts. Mendonça pointed to his own "academic and jurisdictional trajectory" as running in the opposite direction and denied having ordered "generic prohibitions."
"It causes special perplexity to insinuate that the decisions issued in these proceedings sought to prevent Catholic faithful from expressing support for or devotion to Our Lady of Aparecida. Nothing, absolutely nothing, in the decisions supports such a conclusion."
How the case got here
On Friday (Sept. 25), Mendonça ordered the takedown of posts linking Flávio to a supposed move against the patroness. On Sunday (Sept. 27), Dino granted a request by comedian Antonio Tabet, author of one of the posts, and released the content, arguing the post did not name the candidate and that the measure was needed to protect free expression. On Monday (Sept. 28), Justice Luiz Fux suspended Dino's ruling at the candidate's lawyers' request and restored Mendonça's takedown order until the STF's full bench reviews the case, citing the impact on electoral justice and on the presidential race.
The sequence produced overlapping decisions by three STF justices on the same issue, less than a week before the election. The Supreme Court's president, Justice Edson Fachin, had signaled he would put the matter on the court's agenda on Wednesday, but this was not confirmed; according to g1, he is waiting for the TSE's ruling to decide whether the Supreme Court needs to act.
The next step is the close of the TSE's virtual session at 11:59 p.m. Wednesday (Sept. 30), the deadline for the remaining six justices to file their votes. According to g1, a collegiate decision by the electoral court overrides the individual injunctions issued at the STF. If the matter still reaches the Supreme Court, Fachin will set the agenda, with no date set.