How far can organized bloggers go in inciting civil disorder?
The investigation originated by Brazil’s Supreme Court is targeting not the right to free speech of a simple group – but a complex, high-penetration operation, permanently campaigning on social media, possibly using public funds: a new phenomenon, offering danger to people and democratic institutions. Ideally it would have been originated by Congress, or the Federal Police itself. But it came from the constitutional court: one more unprecedented, and disturbing, ingredient.

A bizarre event of the Second World War might shed some light on a current situation in Brazil.

In June 1942 a group of eight Nazi saboteurs landed from German submarines on the coasts of Florida and Long Island. Their mission was to explode the Empire State building, and other skyscrapers that were symbols of American power.

They had lived in the United States and spoke perfect English – but they were not well-trained, and were detained before they could act, and their arsenal of heavy weapons and explosives confiscated. Two of them, John Dasch and Ernst Burger, were arrested when they tried to register with false names in a New York luxury hotel.

The episode became a talking point in social meetings of the Washington elite.

At one such occasion, president Franklin Roosevelt provoked Supreme Court Justice Hugo Black with the question: “Well, Black, are these saboteurs protected by the First Amendment?”

Black answered: “If, instead of weapons and explosives, they had carried only propaganda pamphlets for the Nazi regime, yes, they would be protected by the First Amendment.”

Hugo Black had already made a reputation as the most intransigent defender of literal interpretation of the US Constitution’s first Amendment – passed in 1791, which says:

“Congress shall make no law respecting an establishment of religion, … or abridging the freedom of speech, or of the press.”

Whenever his Supreme Court colleagues had to examine new situations which challenged the first amendment, Black assumed his absolutist position with the phrase:

“Not make any law means not make any law.”

Before and after Black, the Supreme Court has, mainly in wartime, allowed laws to prosper, at least for some time, which clearly violated the First Amendment – for example, laws against sedition and espionage. But never has anyone dared to try to change the drafting of the First Amendment.

Only one exception has been established in which the constitutional protection does not apply – when there is “clear and present danger”. The most frequently quoted example is when someone shouts “Fire!” in a packed theatre, causing a panic in which the audience trample each other to try to reach the exits. Another US Supreme Court judge, Louis Brandeis, clarified the concept of “present”, saying that the danger had to be “urgent and imminent”.

Of the eight Nazi agents, six were tried, sentenced to death and executed in the electric chair. And Dasch and Berger, who denounced their companions and assumed the guilt, were imprisoned, and deported back to Germany at the end of the war.

The case of the saboteurs helps to show the degree of the United States’ democracy’s commitment to freedom of expression. Pamphlets are speech. Speech is free. Weapons and explosives are not protected. But – importantly – speech that causes wounding or death is also not protected by the Constitution when the danger it produces is “urgent and imminent”.

The current offensive by Brazil’s Supreme Court (STF) against bloggers and activists who support president Bolsonaro assumes that this group, which Supreme Court justice Alexandre Moraes has called “the cabinet of hate”, offers “urgent and imminent” danger of causing wounds and death, not only to people, but to institutions.

Is this interpretation by the STF wrong in the light of the universal principle of freedom of expression?

It is not encouraging that the STF has made a precedent by starting a police enquiry in which it, itself, might later come to be the judge.

But, from the point of view of constitutional protection for freedom of expression, there is no doubt that those being investigated, with their preaching in favor of “invasions”, “closing” of institutions, and “armed confrontation”, have entered the twilight zone of “urgent and imminent” danger.

They have enormous power of mobilization on social media. According to the daily bulletin Bites, run by journalist Manoel Fernandes:

“The 13 Bolsonaro-supporting websites with the biggest audience received 38 million visits in April. This includes 15.8 million visits to Jornal da Cidade Online (‘Online City Newspaper’), and 3.1 million visits to Terça Livre (‘Free Tuesday’). Last month the audience of Jornal da Cidade grew 41%, and that of Terça Livre doubled.”

The US First Amendment consecrated freedom of expression at a time when the medium of opposing the government was pamphlets and newspapers printed in clandestine basements.

What the Brazilian federal police are investigating in the enquiry opened by the STF is an expensive, complex operation, with high penetration, permanent activity, operating permanently on social media and – a question being investigated – perhaps run by some contribution from public funds.

This is a new phenomenon.

Ideally, it would have been brought into being on an initiative from the Legislature, or the Federal Police itself. But this action was initiated by Brazil’s Constitutional Court.

This is one more unprecedented, and disturbing, ingredient.

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