Comment by matheusmoreira | Hacker News Reader

Comment by matheusmoreira | Hacker News Reader

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Where in the constitution does it say that you can engage in censorship of any kind, let alone political? Here's what it says, translated verbatim:

> Any and all censorship of political, ideological and artistic nature is prohibited.

That's what it literally says. It doesn't say you can maybe kinda sorta censor people if your cause is righteous enough. It doesn't say you can do it if it's fake news. So where is this disagreement you speak of? I can't seem to find it. I'm no lawyer but I've asked my lawyer friends and they couldn't find it either.

And nobody is shouting fire in a crowded theater. It's just some obviously biased documentary. Hilariously, that means it's of an artistic, ideological and political nature, all three of the categories explicitly singled out by the constitution. Whatever distorted logic they used to censor it must have been hierarchically inferior to the constitution, and therefore invalid.

I'm using the same logic that allowed US citizens to publish and export cryptography software by printing source code in a book. This is technology was literally export controlled for national security reasons. Cryptography has the power to defeat these judges, it has the power to defeat armies. There are few things in existence that are more subversive than democratized access to cryptography. And they used free speech to publish the source code. Their fight is a big reason why you're browsing this site with HTTPS enabled today. So don't compare distorted brazilian notions of free speech to american ones. They sure as hell have a lot more free speech than we do.

> Where in the constitution does it say that you can engage in censorship of any kind, let alone political?

Brazilian law does not consider preempting someone from shouting "fire" in a crowded theater a case of censorship. AFAIK, no democratic country would, for all recognize that freedom implies responsibility. Same goes for those trying to shout, without any evidence, "B's adversaries ordered his killing!" (or something similar) 6 days before the election day, even though they are trying to make it look like a "documentary".

> I'm using the same logic that allowed US citizens to publish and export cryptography software by printing source code in a book. This is technology was literally export controlled for national security reasons. (...) And they used free speech to publish the source code (...). So don't compare distorted brazilian notions of free speech to american ones. They sure as hell have a lot more free speech than we do.

Beautiful story. You should tell Snowden. Maybe he'll realize that he didn't need to go into exile in Russia.

How could they possibly know what the work said? They censored it before it was published. No arguments based on its contents could possibly have been made. It was censored a priori. You make it sound like these ministers watched this thing and determined it was out of line. That's not what happened.

I'd me more accepting of your argument if the documentary had been published and censored after the fact. It wasn't. They preemptively censored the work.

Judges were aware of what the producers themselves claimed the content to be and how the content was being promoted. There were clear references to the elections and to people involved in the elections. Moreover, It's not like members of the electoral court decided to bother the producers out the blue. There was a denounce that the producers were abusing their economic power during the election (which is illegal). Evidence and hearings involving their lawyers were conducted, and that's where and how the judges became aware of everything.

What you have, thus, is a scenario in which 1) the producers were already being investigated for electoral misconduct; 2) they were known supporters of B; and 3) they were boosting and promoting B.'s campaign material in social media disguised as "news" and "documentaries" (which is a way of trying to dodge the accusation of economic power abuse). The case in question is just an acute one.

And even in the face of all this, authorities didn't outright ban the release, but delayed it until after the election (about a week), effectively preventing misuse without imposing censorship.

> Judges were aware of what the producers themselves claimed the content to be and how the content was being promoted.

> Evidence and hearings involving their lawyers were conducted, and that's where and how the judges became aware of everything.

Still a priori censorship. Lawyers obviously could not have watched it either. Or are you claiming the promotions and producer claims were themselves outright defamatory?

> There were clear references to the elections and to people involved in the elections.

Not a problem. As far as I'm concerned the political nature of the work should enhance the protections afforded to the work, not justify its censorship.

> abusing their economic power

That's the same arbitrary nonsense they slapped Google with when it added a link about the proposed "fake news" law to their website. Literally guilty because the message was too effective and they didn't like it.

That's a law which was rejected by our elected representatives and which these judges rammed down our throats anyway via monocratic electoral court "resolutions", by the way.

> 1) the producers were already being investigated for electoral misconduct

By an obviously partial judge. I don't accept that for a second.

> 2) they were known supporters of B; and 3) they were boosting and promoting B.'s campaign material in social media disguised as "news" and "documentaries"

Not a problem. Just citizens exercising their right to free expression.

> authorities didn't outright ban the release, but delayed it until after the election (about a week), effectively preventing misuse without imposing censorship

They censored the work until it didn't matter anymore. Temporary censorship is still censorship.

Like I've said before, Brazil lives under the rule of a democratic constitution built after much fight against real dictatorship and real censorship, not the rule suggested by you here (which, again, absolutely no country in the world lives by). You're free to disagree with the basic liberal and democratic principles grounding the Brazilian constitution, but whenever you and the constitution disagree, bear in mind that it is the constitution's point of view that's going to prevail.

> whenever you and the constitution disagree

The constitution and I don't disagree. The constitution says any and all political censorship is prohibited. I cited the exact part of the constitution that backs up my world view.

You have yet to tell me which part of the constitution backs up yours. No brazilian here on HN has ever shown me the part of the constitution that says supreme court judges can censor people if what their political speech is "fake" or "anti-democratic" or whatever.

If it exists, then just show it to me. I can be convinced but nobody's ever shown that to me. Best I ever got was anti-nazism laws which are hierarchically inferior to the constitution. Without such a reference, I'll continue to believe that these judges are above the law and I'm going to make inferences and draw conclusions from that fact.

Your understanding of censorship is fundamentally distinct from that of the Brazilian constitution (BC) because you clearly detach freedom from legal responsibility. In BC, freedom of speech is bounded by the law. That's why you can't (e.g.) say you're going to harm someone without facing the legal consequences.That's also why you can't use words to incite a (virtual or real) crowd in which you're influential to take illegal action against someone (and one can do that without being explicit). Thus, in BC, censorship is what happens if you prevent someone from speaking something they are legally entitled to. In stark contrast, your examples were basically of how speech could be used to bypass law limitations (e.g. abuse of economic power is a well-defined example of illegal activity).

The difficulty in seeing "where is it in the constitution" is likely related to viewing Law texts as a kind of source-code in which everything must be carefully defined and every possibility must be explicitly stated. No constitution work that way. No one could. It may contain some very specific rules, but in general it is an articulation of principles that must be observed by legislators while formulating laws. One of such principles is that our freedoms cannot be detached from our responsibility (i.e. the possibility of being held responsible). Law works that way because one can't predict in advance every kind of situation.

For instance, if I ask you whether you agree that right to life is a fundamental value, you would probably say yes. I assume the same goes for freedom of religion. But what would you say of a father that refuses to do blood transfusion in his newborn son for religious reasons, thus leading to its death? As responsible for the newborn, is he entitled to act this way? Which value should prevail? Freedom of the father to act according to one's religion or the right of the newborn to life? Distinct communities can give distinct answers (e.g. ancient Japanese would perhaps pick honor over life). The point is not whether there's a clear answer or not. The point is that you can't expect to find an "if-then" statement explicit about it in the Constitution or even in laws in general, and that you can't expect that whatever works in this specific situation is fully generalizable to every other situation in which these two values conflict. Applying the law requires interpretation of both the text and the situation in question, and there's a whole discipline dedicated to how that's done (hermeneutics).

The same goes for values such as freedom of speech. Given its intrinsic connection to responsibility, its application is always bounded by the law, and the application of the law is always bounded by the specific situation at stake. That's why we can and should tolerate people believing weird things that go against our best scientific knowledge (juridically, no one cares if you believe that the earth is flat), because we can easily keep them under check using arguments, rational discourse, etc. However, if it becomes part of something illegal like attributing a crime to someone else without evidence (e.g you're using your influence over flat-earthers and their typical suspicion of NASA, to make them believe that the NASA is supporting your political adversary in an attempt to fraud the elections), you must and will be held accountable, (that why it's not really about "judges deciding what's fake"; rather, it is about how one is (ab)using a given discourse.

You're basically arguing that the constitution is on equal footing with or inferior to the other laws. That's just backwards and to insist on this borders on gaslighting.

The constitution is the constitution. If other laws contradict the constitution in any way whatsoever, they are wrong and invalid. I don't even want to hear the argument, they are unconstitutional and they should be literally deleted from the law books. And they would have been, if these judges were doing their jobs correctly.

Whatever this notion of "abuse of economic power" is, it certainly cannot be used to justify political censorship because the constitution obviously prevails over some lesser law. The constitution is interpreted in the context of itself only. Other laws don't matter at all. So unless this "economic abuse" thing was inserted into the constitution, it is not an argument for violating the constitution. If it had been, surely you would have pointed it out by now.

And there is no "unforeseen cases" problem here either. The writers of the constitution clearly foresaw that people would try to censor political speech, and they made it a point to prohibit any and all forms for such censorship. I guess they couldn't have foreseen supreme court judges making a mockery of what they wrote.

Of all the examples you could have cited, you chose the jehovah’s witness blood transfusion nonsense. I'm a medic, that's not even the worst legal shit show we deal with on a regular basis. Words can hardly describe the problems that these judges cause with their nonsense decisions which basically boil down to "we'll go with what our feelings tell us on a case by case basis". Lawyers even have an euphemism for this idiotic situation: "juridic insecurity". My goddamn lawyer has an entire team of professionals at her disposal and all of them cannot figure out what in the fuck the judges expect us to do in that situation. If you respect their autonomy, the judges condemn you for murdering the patient. If you don't, the judges condemn you for disrespecting the patient's autonomy. In both cases they basically enslave you with some nonsense lifetime payment punishment. Those are supposedly unconstitutional too since Brazil has no lifetime punishments to begin with, but this is Brazil, a land that's apparently devoid of logic. The only conclusion that can be drawn from this is that you don't want to be in the ER when the jehovah's witnesses show up. You don't want the liability. Working the ER is already seen as a "reassigned to Antartica" tier punishment, and it's only gonna get worse over time. These ass pulls have consequences and they will be felt by our society.

By this point it's more than clear that we're never going to agree with each other.

> You're basically arguing that the constitution is on equal footing with or inferior to the other laws. That's just backwards and to insist on this borders on gaslighting.

No. I'm making the Law-101 claim that, according to the Brazilian constitution (as well as most democratic constitutions worldwide) you can't rely on freedom of speech to bypass the law. Pretty much everything you said up to this point relies on this fundamental misunderstanding.

> The constitution is the constitution. If other laws contradict the constitution in any way whatsoever, they are wrong and invalid. I don't even want to hear the argument, they are unconstitutional and they should be literally deleted from the law books. And they would have been, if these judges were doing their jobs correctly.

There's a hierarchy within the constitution itself. Fundamental principles of the constitution come "before" constitutional norms. Indeed, constitutional norms must be interpreted under the lights of the constitutional principles, and any interpretation that doesn't follow them is unconstitutional. Isonomy (equality), for instance, is a principle. The right to speak freely is a norm. That means, among other things, that your right to speak freely can't be used to harm isonomy. Abuse of economic power is a way to to harm isonomy within elections (for you can use money to boost your reach, effectively "silencing" your adversaries by flooding your discourse everywhere, making the voter's decision to be a function of your money rather than about your political ideas and proposals).

Therefore, your whole reasoning about what should be the case is pretty much backwards, for you're implying that norms should come before principles.

Whenever one wants to think of oneself as capable of teaching judges (or any other professional), how to do their jobs, it is always a good idea to study how things actually work.

> By this point it's more than clear that we're never going to agree with each other.

Indeed, for I agree with the Brazilian constitution and you don't.

There is no disagreement. In the constitution, isonomy is just the principle that says everyone is equal before the law, everyone is subjected to the same rules. That's formal isonomy. Under the constitution, isonomy means you have a proportional right to answer the other party's claims and even extract damages. It does not mean you can have those claims censored. This is literally spelled out in the text. They get to say whatever they want, and you get to answer them and sue them if you want. After the fact. You don't get to preempt it with a priori censorship. That would mean the manifestation of thought is not free.

Plenty of lesser laws expand quite a bit on that concept until it becomes material isonomy. Treating the unequal unequally. They all boil down to things that reduce inequality such as affirmative action. Those are irrelevant to this discussion. TSE's notions of "economic power abuse" no doubt fall in this category.

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