Moderator: Noam Lupu, Gertrude Conaway Vanderbilt Professor of Political Science and Director, Center for Global Democracy, Vanderbilt University

Speaker: Jamil Assis, Director, Sivis Institute

This transcript has been lightly edited for clarity. Time codes refer to the session video.

[00:00] Noam Lupu

I'm Noam Lupu. I'm on the faculty here in the political science department, and I direct our Center for Global Democracy. I'm delighted to be here to talk a little bit about what's going on in Brazil. Jamil, do you want to introduce yourself, and then we can get started?

[00:25] Jamil Assis

Hello, everyone. Thanks for having us here. This has been an amazing event. My name is Jamil. I work at a nonprofit think tank based in Brazil. We've existed for 15 years now, and I've been there for the last 12. About five years ago, we focused our democracy and political culture-building work specifically on the issue of free speech. So that's why we're here, and we're excited to share some of the stories of the recent past in Brazil and why we think this international audience would benefit from learning a bit more of the details—and maybe from helping us out in defending the first of the liberties, the first of the pillars of democracy in our country. So thanks for having us. Noam, please go ahead and lead us.

[01:16] Noam Lupu

Brazil, as many of you might know, has an election tomorrow—a very important election, which unfortunately Jamil is not going to be able to vote in because he's here. We will get to the election. But Jamil, give us a bit of the background. Your think tank has described the situation in Brazil as a free speech recession over the last few years, going back at least to 2023, and some of what's happened with social media and Twitter in particular. So give us a bit of the background. How did we get to where we are?

[02:02] Jamil Assis

I'll do the best I can here. Please interrupt, and we'll get into some details. Brazil is a fairly young democracy—third wave, as political science likes to call it. In 1988, in the wake of military rule, we got a new democratic constitution that was built to generate unity. It was very aspirational, in a sense. We included important human rights provisions—a very extensive list, actually, of human rights and goods that we want to protect and aspire to give to all of our citizens. Free speech in particular is fairly well protected, by continental law or common law or civil law standards, and it's been that way for a long while. Our jurisprudence on the protection of speech for journalists and activists is fairly strong, and we had landmark cases in the early 2000s.

For example, we like to tell this story. Marijuana has been a big cultural issue in Brazil for a long time, and in the early 2000s there were big protests and demonstrations to change the law on how much you can carry without being labeled or tried as a drug trafficker. The Supreme Court upheld that if you're protesting to change the law, that's a basic democratic free speech issue. Of course, if you're inciting people to break the law, that's not okay.

[03:35] They actually cracked down on some people at those protests who were holding signs inciting crimes, but they upheld the right for those demonstrations to happen. So that was a big free speech defense. There was also the protection of journalists against a law that came from our military rule, which still left room for some prior censorship and government meddling in newspapers. That was not welcome under our new constitution, and in the early 2000s it was struck down. So: strong jurisprudence, strong defense of free speech.

We also had a landmark law passed in 2014, the Marco Civil da Internet—the civil framework for the internet in Brazil. It was a major contribution to international law. Brazil was one of the first democratic countries, I guess, to pass a law to protect free speech online and to help innovation happen online as well. It was built in a multi-sector way, led by civil society, through a major participatory process, and it became law in 2014. The major provision there is Article 19. I don't think it was a coincidence that they chose that number, because it's also the human rights provision on free speech. Article 19 of that law said that platforms are not liable for third-party content unless they refuse to obey a court order. So it's basically close to Section 230 of the Communications Decency Act here in the US.

[05:10] So from the early 2000s up until 2014, 2015, 2016, there was a major defense of free speech. But what happened—and I guess this is a worldwide phenomenon, with Brexit and Trump and Bolsonaro—was a huge panic about democratic norms being eroded. Brazil, as you know from the survey data you have, does not have a particularly strong democratic culture. People have trouble being tolerant of different ideas and helping people who think differently. We held a survey this year in which a third of Brazilians said they would be okay with removing the right to speak of people they don't like. In general, that is quite troubling. And 16% would actually be okay with suppressing the right to vote of people they don't like. So it's a political culture that's really problematic, don't get me wrong. But after these events, and with the rise of the Brexit and Bolsonaro effect, people got more worried about democracy's sustainability.

In 2019, there was this big corruption scandal that had been uncovered for a few years already, and the Supreme Court was actually sending powerful people to jail: politicians, business people, important construction business people. That probe eventually got to the Supreme Court, and that's when our free speech issues became a rule of law issue, because the judiciary got involved very heavily. They opened an investigation in 2019.

[06:42] I have to tell this very briefly, so I'll skip some minor details. The corruption probe found that one of the Supreme Court justices was involved in conversations related to these corruption scandals. It was the cover of a magazine in Brazil, and the Supreme Court suppressed that cover. They asked to remove it from the stands and from sales, and the online article was suppressed as well. And it was via an inquiry: the Supreme Court decided to start an investigation by itself, which is illegal in Brazil, to investigate people who were attacking the court's reputation and honor and the safety of the justices. They're allowed to start those investigations only if the police or the public prosecutors prompt them to do so, and if there is a crime that happened or was about to happen within their premises—the building itself. But the justification for opening this inquiry, called the fake news inquiry at the time, was that the internet is also inside their building. So whenever you jump online, you can be sure that you are within our Supreme Court's building as well. That's the excuse they're using to include people like Elon Musk or other foreign actors and companies in these investigations—because you're online, I guess. And that's been really harmful, because the way they've put this inquiry forward, it's supposed to end after 120 days.

[08:23] That was 2019. It's already been seven years, and it's still open. The investigations are secret. The people have not been tried, so they have assets seized and they cannot appeal, because there is no trial going on yet. There's no natural judge being chosen, anyway. So it's a big, big hole in our rule of law regime that people tolerated for a while, because after that initial corruption scandal suppression, they started to target mostly supporters of Bolsonaro and people on the right—on the extreme or far right, if you could call it that. But they also got regular people who posted criticisms of Supreme Court officials: not only criticisms of decisions, but of the justices personally.

There was a discussion last year about increasing the punishment for crimes against honor. We have libel law in Brazil; the penal code includes defamation and calumny and so on. They actually increased the penalty if you commit those crimes against a public official, which, again, I think is the opposite of what you should do in a democracy. And the Supreme Court ruled on it with a catchphrase from one of the members of the court, a former Communist Party of Brazil governor, who said, "I won't tolerate anyone calling me a thief."

[09:54] It used to be a national sport, calling politicians thieves. But now it costs more, I guess. And there was a recent case earlier this year—at least twice—where Lula was holding political events and talks in cities, in the streets, and people would just put signs in their windows with the word "thief." Not calling anyone a thief, just saying "thief." The police knocked on the doors of some of those people and included them in these investigations. So it's really dangerous to be calling people thieves in Brazil, I guess.

2022 was a highly contested election. We still had good laws in Brazil up to that date, but because of these personalized decisions, our rule of law was basically eroded. What happened in 2022, again, was a very contested election between Lula and Bolsonaro. Lula had just gotten out of jail because of a technical annulment of his trial. Our electoral justice system, which is a very unique thing—and I can explain it a bit better if you want—effectively decided to change how the internet liability conversation would happen. They passed new regulation that effectively said it was illegal during elections to spread knowingly false or severely decontextualized information. Very broad, vague terms that get applied on a whim. So Lula got a bunch of content censored, and Bolsonaro got a bunch of stuff censored in the 2022 elections. They changed these rules between the first and the second round of the election.

[11:31] So there were all sorts of rule of law issues there. And that prompted Congress to present bills: we won't let the judiciary do all the work, let's pass some bills. So they proposed the fake news bill in 2023. Google was not happy, and many other companies as well. Google posted an article on its home page, so every Brazilian who went to google.com.br saw a link to an article: "Our opinion on the fake news bill." They were threatened with billion-dollar fines if they didn't take it offline. The same with Telegram—just because they were opining against the bill. And that happened to a lot of people as well, not only the companies: if you spoke out against that bill, you were threatened with fines. That bill was rejected by Congress, but a lot of its provisions are, to this day, almost to the letter, in other provisions that have passed—in executive orders and in judicial decisions.

Just to finish this first part: we got to a point in 2024 when we had local elections. We're currently having presidential and state elections; the municipal elections were in 2024. X, the platform, was already owned by Elon Musk, but because of his entanglements with some Supreme Court officials in Brazil, X was down for 40 days—completely down in our country.

[12:58] And because people are smart, they get VPN access to reach the internet. So for a couple of days they outlawed the use of VPNs in Brazil. However that was supposed to be implemented, they didn't actually fine anyone or arrest anyone for it; they backed down from that. But insane amounts of control of the internet for dissidents. And in 2025, the platform Rumble—a video platform, I'm not familiar with it—was also offline for a long while. And we're again in a highly contested election period where, don't get me wrong, it's not just the right. Lula has had a bunch of posts deleted and censored, and his supporters as well. It became basically an issue of protecting the Supreme Court and its officials: we have to suppress threats to the credibility of that institution and to our democracy. And that became the justification more strongly after January 8, 2023.

So I told you this whole story because prior to 2023, in most people's understanding, there was no major threat to our democracy. It was just the Supreme Court being very corporatist and protecting themselves. But they found a perfect excuse in 2023 to "protect democracy." And most people are now realizing that that was not the case, and that we need to back down. So sorry for the long exposition, but in short, that's the timeline of what we had.

[14:25] Noam Lupu

I think that's very useful to give everybody the context of how we got here. I do want to ask you about something that relates both to the question of public opinion and to the elite rhetoric around these things. We see this with democratic erosion more generally: would-be autocrats use the language of democratizing reforms, of undermining institutions that are undemocratic—the unelected bureaucrats, how dare they impede the decisions of populist presidents or elected representatives. Similarly, in this case, the language being used is that these disinformation campaigns are eroding democracy, and democracy needs to defend itself against these things.

We see the same things in the surveys that we do at our center here. Brazilians in principle support freedom of speech. But when you start to ask them, as you said, about specific groups in particular—think about a group that you don't agree with politically; to what extent do you think they should have the right to vote, the right to speak, the right to protest?—support declines pretty sharply. My sense is that a lot of that has to do with thinking that the political groups you dislike are less democratic than you are, or are trying to undermine democracy. And of course January 8 and the other events that have come to light since then around Bolsonaro and an attempt to stay in power do suggest that there are forces trying to undermine democracy. So how do you, particularly as an organization and as a think tank that's trying to develop or improve the political culture around this in Brazil, respond to the claim that what we're trying to do here is protect democracy from these anti-democratic forces?

[17:09] Jamil Assis

That's a hard challenge, because when we started working on free speech in Brazil five years ago, it was deemed a right-wing issue: that's not really free speech you're after protecting; you're trying to help the partisans of the right undermine democracy. But as I told you in this story, it just became that way because our Supreme Court aligned its interests with the opposition to the right, I would say, when Bolsonaro was president. Now they are in the opposition party. It's a big challenge, because we're a small think tank as far as team goes, but we aspire big, and we do a lot of work with the media and civil society actors and politicians across the political spectrum—and we did so before free speech was our major issue. So we had to be very careful with the language. What we're trying to do is not defend free speech as the right to undermine democracy, of course. We're trying to develop the conversation in Brazil on what free speech actually is in Brazilian legislation: how far does it go, how far can we use it to protect our own speech, and where does it cross the line? So what we've done is a lot of educational projects, of course, but a lot of surveys as well, to show how much free speech is a misunderstood topic in Brazilian democracy.

[18:29] You do a lot of surveys too, but there's one data point that is relevant. We don't prohibit criticism of elected officials or politicians, of course. As I just told you, there are calumny and libel laws in Brazil. But criticism and defending ideas that are contrary to the mainstream is still valid. Yet when we ask people about particular expressions, they have a feeling or a sentiment that some ideas are not protected in the political debate. For example, in 2023, we asked people for the first time: are you allowed to say that our Supreme Court is undermining democracy in Brazil? To defend that idea. Less than a third said yes, it is illegal—for whatever reason, either because they really think it is illegal or because in practice it is, in their sentiment. This year we asked the same question at the beginning of the year, so before even more corruption scandals surfaced in the last couple of months, and almost 60% of people now believe it is illegal, or that you will be persecuted, if you say our Supreme Court is undermining democracy.

[19:49] Self-censorship has become a huge issue: the idea that you don't say out loud what you think, or that some opinions are not expressed in the public debate, or in families, or at work, or in schools. We did a major survey last year, with the support of FIRE—an organization I think most of you are familiar with—on university campuses and the amount of people self-censoring there, not related to the Supreme Court. So the culture of free speech is just not really a big thing for us.

As an organization, we chose a tactic: we're going to stay non-partisan. We need to be principled about this. So we denounce it if Lula gets censored, if his supporters get censored, or if people on the right do. On top of the survey work, we also do some education work. We work with schools and help partners develop the culture of free speech, because disinformation harms, misinformation harms, and they generate actual problems. So-called hate speech is actually a thing that people can be damaged by. But we don't think regulating it or passing laws that restrict speech is the option. So we take actions such as counter-speech, educational programs, and campaigns. But we also do advocacy work.

[21:08] We are in Brasília, in our federal Congress, trying to help people understand these bills that want, for example, to restrict misogynistic speech, which is a current thing in Brazil. Lula passed an executive order, because the bill didn't go through in Congress: well, I can just decree that it's illegal to be misogynistic in Brazil. How do you define that? We had parliamentarians on the right using that provision to say, "They're criticizing me because I'm a woman, so you should get your fines and restricted speech." As I said, there was this big provision they tried to pass in 2023, and pieces of it are still being legislated to this day. What we do is monitor, help people understand, and build healthy coalitions whenever possible to show people the impact of restricting speech online or offline. But it is really challenging. I guess we have the advantage of being a nonprofit, a think tank, non-partisan. We do data. We publish in the hardest-left newspaper you can find and the hardest-right newspaper you can find in Brazil. So we try to keep that asset of dialogue open and on the table, but it's becoming increasingly difficult. This election is going to be a stress test for a lot of it.

[22:33] Noam Lupu

That's a perfect segue. I wanted to talk a little bit about the election. The election is tomorrow, and then there will be a runoff, most likely between Lula and Flávio Bolsonaro, Jair Bolsonaro's son—although not the son they thought would succeed him. There are different predictions out there of what's going to happen. We were chatting beforehand, as folks who follow polling in Brazil, and at least this panel predicts that Bolsonaro is going to win. But with either election result, what are you expecting will happen in the next few years with regard to these issues?

[23:32] Jamil Assis

We predict very hard years for free speech regulation, because there is still this big concentration of power in the judiciary and the Supreme Court, and they have changed legislation through multiple different avenues. There's a big discussion about how our Supreme Court works, because it accumulates both constitutional control—both abstract and concrete cases of constitutional interest—and it is also a penal court for people who hold office. What does that entail? If you're a senator and you have a case in the regular justice system, once you're elected that case goes straight to the Supreme Court. They are swamped with cases, so they just leave it there until the date when they can use it, I guess. And we've heard from senators, colleagues and friends of ours, that on important votes, Supreme Court officials are calling senators on the day of the vote to tell them how to vote—otherwise, "we'll just get your file here, we'll accelerate your trial." It's really disgusting, and it's really in the open.

So there are major reforms that need to be done to our Supreme Court, and we predict the new Senate will actually be able to do them. Currently our Senate is really divided, and they're the ones who hold the Supreme Court accountable. They haven't done much up until today, but we anticipate a huge shift in Congress in the next few years, because one major point for right-wing campaigners this year has been: choose a senator who's willing to take action against the Supreme Court.

[25:08] Of course, that's really controversial as an election selling point, but it's been effective as far as polling goes. So we predict that shift in the Senate, and there might be a huge institutional back-and-forth. Depending on who gets the presidential seat, that might change a bit, but we don't predict much. Bolsonaro, the father, and his son, who's running for office, have already had a bad record with free speech as well. It's not the comparison with Trump, but once in office, Bolsonaro was not a big friend of journalists asking tough questions. And his son, who is a senator running for president—as a senator, he voted for the law that prohibits misogyny. So he's also not that great as a free speech champion. We predict a rough period for those legislative battles, but we also anticipate important reforms being faced by the new Congress especially.

To be simplistic about it—and this is being recorded, but I don't really care who gets the presidency. It's really important that our legislature does its job in the next few years, as far as protecting free speech and challenging and reforming our judiciary, but also not moving forward on those restrictive free speech laws. We're not that optimistic. There's a lot of work to be done, although the Brazilian Congress has a way of being very permeable to political interests, both good and bad.

[26:51] As an organization, a nonprofit, we've seen how easy it is to influence people once you're there and you show arguments and make it easier for them to understand how something will hurt their constituents. But Brazil has this funny characteristic that all of our federal government and the Congress are in Brasília, which is a city that's very far from where most people in Brazil live. That makes it really difficult for political pressure to come from a population that is also exhausted with political polarization. Part of the phenomenon of self-censorship that we mapped, with people just not talking about politics anymore, is fear—social fear, or even fear of being persecuted. But part of it is also exhaustion: it doesn't matter what I say about politics. As here, polarization has become affective. It's become emotional polarization, not just political. So there's this risk: even if we get a new Senate that's willing to take on these reforms, if we don't pressure them enough, they'll just sit there and let the Supreme Court do its job—which it is not doing a great job of. I'm not sure I answered the question, but I'm more than willing to discuss some other interesting results we have from recent surveys.

[28:15] Noam Lupu

I'm glad you raised polarization, because of course it's something that's been happening in Brazil now for at least the last ten years, and there's no reason to think that this will change, regardless of who wins this particular election. This has really been a big change in Brazilian society, which was not nearly so polarized, or affectively polarized, before the last ten years or so. I wanted to give a chance for folks here who might have questions. Yes.

[29:03] Audience member

In terms of the reforms of the Supreme Court, two related questions. You mentioned that it seems like the right is primarily running on this. Is this something that has any bipartisan support? Are there people on the left who also see the problem and are open to those reforms? And the follow-up is: do you perceive any resistance from the Supreme Court itself, given how active they've been in, in their view, defending democracy? Is there a possibility of a conflict where they say, you can't make this change—you can't come for us?

[29:44] Noam Lupu

Just to add to this question: a lot of the public opinion trends, including some of the ones we mentioned, are not left-right specific—in terms of who's willing to undermine the freedoms of opponents, but also who says that in principle they support free speech, or even levels of trust in the Supreme Court. They really cut across the ideological spectrum, at least in the public.

[30:25] Jamil Assis

And the same for fear of speaking out, fear of being persecuted. The bipartisan support is there for minimal reforms to the Supreme Court—for example, a code of ethics or conflict of interest rules. We actually do have those for the judiciary, but, surprise, surprise, the Supreme Court says, we're not part of the ordinary judiciary in Brazil, so let's come up with our own rules. And it would shock some of you to know that the best-paying job currently in Brazil is to be a lawyer who is a family member of a Supreme Court justice. It's insane how much that pays. You should look that up: once you become a Supreme Court official, your family members' law practice just explodes. It's silly. It's really incomprehensible how that hasn't changed already.

The current president of the Supreme Court—they change every couple of years, two-year terms—is actually a really good law professor, a technical guy, who was appointed by Lula. He's really technical and willing to do some of those reforms. He has pushed for the code of ethics and rules for conflict of interest, and it has huge support from across the board in Brazil. But we find those rules to be insufficient if the justices are just going to judge themselves, because they don't have disciplinary oversight—people who judge them. It's a who-watches-the-watchmen kind of situation. But there is some bipartisan support that can be built upon. And that is something that part of the current members of the Supreme Court are willing to uphold if the public shows more support than it currently does, because a lot of people are still afraid. The election can change the winds on that fear of speaking up, and the members of the Supreme Court who are willing to do those reforms may be bolder—as per the event here: let's be bold. I'm not sure if that answers it.

[32:46] Audience member

There's a common theme between this conversation and what we heard yesterday on digital sovereignty. Sometimes we look at these debates and it seems like an abstract clash of principle between free speech and hate speech, misinformation, et cetera. But when you dig into it, there's something grubbier going on, which is the old story: there are government institutions of some kind that don't like being criticized, and they're taking advantage of this to not be criticized. So I'm thinking about whether there are ways to communicate about that so that we don't get sucked into the environment of polarization you're describing. I'm sure that people on the right in Brazil are happy to say that about the Supreme Court, but it's interpreted as right-coded, when actually maybe the broader principle is just that no government institution can really be trusted with that kind of power.

[33:40] Jamil Assis

What's happening now—and you may have data on this as well here at LAPOP—is that the large media groups, which still have a huge sway on public opinion in Brazil, journalists and newspaper editors, are starting to say mea culpa: well, we've actually been lenient with the Supreme Court because they were saving democracy for the past few years. Major newspapers are currently asking for the impeachment of Supreme Court members, or asking for these rules to be upheld or changed. So there is room. Actors who were once perceived as more aligned with Lula or the left—some of them are speaking up now and openly embracing a strange bedfellow in the people on the right who want to change things. So I think there's a shift in the moment. Of course, these elections might help us depending on the results, and it's unpredictable. If Lula wins, it may help. If Bolsonaro wins, it might help, but it might also increase the divide, because people we know, in nonprofit groups we participate in that are mostly progressive, are treating this again as a life-and-death election for our democracy. Both sides have already come up with alibis to challenge the results.

[34:59] It's "illegal interference," or "oh no, you're trying to get rid of democracy." So we anticipate that it's not going to be easy to do. But again, the strength of being a nonprofit, and coming from where we come from, is that we've managed to get good support from both sides of the aisle to do some minor reforms on digital law—for example, the child protection law that was passed recently in Brazil. We already have a big statute on child protection in place, and they just added a digital component to it. There were major issues in the first versions. We managed to speak up on it in public hearings and technical notes with other partners, and we changed a lot of it to be better for free speech. Not perfect, but much better than it was supposed to be. So there is room for that. Hopefully we get even more support from powerful actors, and the shift is in the newspaper editorials. If they keep that up after the election, whoever wins, then we might have room for change.

[36:02] Noam Lupu

I'll just add that I think this is where polarization has such a negative effect on these things, because you need institutions that are trusted to come out and say, this is not okay, and this is not a partisan issue. Polarization inevitably erodes people's trust in those kinds of institutions: think tanks, universities, media. Although trust in the media in Brazil is still relatively weak, compared to the US or other parts of the region it's quite okay. So having media or trusted institutions—universities are still relatively okay in Brazil—come out in defense of principles rather than political choices, I think, is really critical. Or having the other side take that initiative: the Nixon-goes-to-China idea. Having political leaders who come out and say, this benefits me politically, but it's not the right thing to do, is really powerful. But all of that becomes very hard in a context of polarization. All right. Thank you so much, Jamil. Thanks, everybody.