Brazil's Attorney General's Office insists on persecuting journalists using the National Security Law.

By Marcelo Auler, in your blog - In a statement submitted to the Supreme Federal Court (STF), the Attorney General's Office (AGU) argues that the Minister of Justice and Public Security, André Luiz Mendonça, in proposing the opening of a police investigation, based on the National Security Law (LSN), against cartoonist Renato Aroeira and journalist Ricardo Noblat, "acted within the framework of the governing legislation." According to the information presented in the Argument of Non-Compliance with Fundamental Precept (ADPF 697), Mendonça's action stemmed from his understanding "that the artistic expression exceeded the limits of freedom of expression and negatively affected the honor and image of the President of the Republic."

In a new initiative that demonstrates the Bolsonaro government will continue to resort to using a remnant of the Brazilian dictatorship – the National Security Law – to persecute journalists, Minister Mendonça announced on Monday the same measure adopted against Aroeira and Noblat for the journalist from... FSP Hélio Schwartsman. All because of the controversial article. Why I hope Bolsonaro diesThis demonstrates that the government refuses to deal with differing opinions.

ADPF 697, filed on June 18th by lawyers from the Sustainability Network, attempts to prevent the investigation against Aroeira and Noblat. The Network argues that journalists and cartoonists – therefore, also Schwartsman – cannot be “persecuted by the state apparatus simply for carrying out their duties.” The party also considers that “given the evident humorous nature of Aroeira's cartoon reproduced by Noblat, it is inconceivable to consider that it represents harm or danger of harm to any of the legal assets protected by the National Security Law.”

Lawyers Levi Borges de Oliveira Veríssimo, Bruno Lunardi Gonçalves, Cassio dos Santos Araújo, Filipe Torri da Rosa, Kamila Rodrigues Rosenda, along with Senator Fabiano Contarato (also a lawyer) from the Rede-ES party, classify the use of the Federal Police "to investigate journalists who publish acts that displease the government" as "the politicization of the police machine." For them, this decision constitutes "a violation of freedom of expression (Article 5, items IV and IX, and Article 220 of the Federal Constitution), freedom of the press (Article 5, item IX, of the Federal Constitution), and the very Democratic Rule of Law (Article 1 of the Federal Constitution)."

Discussion about the remedy (ADPF) used

In attempting to intimidate Aroeira, Noblat, and all other cartoonists and journalists, the Minister of Justice provoked the opposite effect. The cartoon that sparked the controversy was republished dozens of times.

Prepared by the Union's lawyer Alyne Gonzaga de Souza, approved by the acting Attorney General of the Union, Giordano da Silva Rossetto, and finally adopted by the Attorney General of the Union, José Levi Mello do Amaral Júnior, the information provided to the Supreme Court on July 1st, at no point explained why the Minister of Justice resorted to the National Security Law (LSN). The main concern was to present the legal basis for the Minister's initiative in requesting the investigation. They also questioned the use of an ADPF (Action for Declaration of Unconstitutionality by Omission) to block the investigation.

To rebut those who criticized the Minister of Justice for taking the initiative to request the opening of an investigation – including this one BLOGIt must be admitted – the information provided by the Attorney General's Office to the Supreme Federal Court reproduces the explanations presented by the Legal Advisory Office of the Ministry of Justice. It highlights that, according to the Penal Code, crimes against honor – insult, slander, and defamation – will have their penalties increased by up to one-third if committed “(I) against the President of the Republic or against a foreign head of government; (II) against a public official, by reason of their duties”.

In both cases, as governed by article 145, in the absence of bodily harm, the initiation of any procedure depends directly on a complaint. In the case of a public official, the official himself must file it. But in the case of the President of the Republic or a foreign head of government, "proceedings are initiated upon request of the Minister of Justice." The legal counsel's opinion concludes:

"The Minister of Justice and Public Security, in requesting the initiation of police proceedings to investigate the facts, acted under the protection of an express legal provision. And, after the regular course of the police investigation, it will be up to the Federal Public Prosecutor's Office to propose the corresponding criminal action and for the Judiciary to analyze whether the limits of freedom of expression have been exceeded.“. (emphasis in the original)

In addition to upholding the legality of the minister's initiative, the AGU's (Attorney General's Office) information attempts to refute the claims of the Sustainability Network by alleging the inadequacy of the ADPF (Arguição de Descumprimento de Preceito Fundamental - Claim of Non-Compliance with a Fundamental Precept). They assert and insist that "the appropriate procedural instrument to challenge the initiation of a police investigation is habeas corpus." They add to the error of the instrument used an error by the court in this debate. They guarantee that "for the dismissal of the police procedure in question, the appropriate procedural instrument would be the filing of a habeas corpus petition before the Superior Court of Justice, as provided for in subparagraph 'b' of item I of article 105 of the Federal Constitution."

In a limited understanding of what constitutes threats to freedom of the press, the Attorney General's Office argues that in this case, “From any angle of analysis, the author's claims of non-compliance with or violation of constitutional norms or precepts are unsustainable.".

They claim there was no censorship and uphold the president's right to appeal to the Judiciary, as provided for in the Constitution, because "the very dignity of the human person, a fundamental principle of the Federative Republic of Brazil (Article 1, III of the Federal Constitution of 88), as well as the inviolability of privacy, private life, honor and image of individuals (Article 5, X, of the Federal Constitution of 88)" have been violated.

According to the document, these are "guidelines for the regular exercise of freedom of expression and manifestation of thought." In its report, the Attorney General's Office argues that the primacy of freedom of the press "needs to engage in dialogue and harmonize with the other precepts and foundations of the Constitution."

Partial reading of ADPF 130

Referring to the famous decision in ADPF 130, in which the PDT, through then-deputy Miro Teixeira, questioned the reception of the old Press Law by the 1988 Constitution, the AGU document presented in ADPF 697 emphasizes that, "in the understanding of the Supreme Court, the censorship prohibited by §2 of article 220 of the CF/88 is embodied in the prior state restriction of the content that one wishes to see published or disseminated, a circumstance that, in no way, inhibits eventual subsequent control that may, including, lead to the accountability of the agent who – abusing or misusing their freedoms – may offend the dignity, intimacy, honor, image or private life of another."

There is an attempt to downplay the issue. No one in their right mind disputes the right of those who feel harmed by a publication to resort to the Judiciary in search of redress, compensation, and even a criminal conviction of the author(s) of what was published. That is not what is happening in this case. In reality, there is an attempt to intimidate a journalist for the criticism made, which was unpopular.

What the Attorney General's Office (AGU) fails to mention is that the Supreme Court itself has repeatedly made it clear in various rulings that the rights to "dignity, privacy, honor, image, or private life," as they claim in the document, are not as absolute as presented. This is especially true for so-called "public officials," such as the President of the Republic. Because of their position, they need to get used to criticism. This is a position the Supreme Court itself has held since its decision in ADPF 130 in 2009.

This, incidentally, is also stated in the same opinion used in part by the Attorney General's Office. Apparently, they were not interested in addressing the issue of the differentiated weight of personal rights versus the collective right to information. A partial reading of the opinion was made.

The Attorney General's Office (AGU) does not, for example, state that, for the Supreme Court justices, the role of the press is to be critical. This is as stated in the opinion of Justice Carlos Ayres Britto, rapporteur of ADPF 130, whose opinion was unanimously accepted:

"Critical thinking is an integral part of complete and reliable information. The potentially socially useful content of the work compensates for any excesses of style and the author's own verve."The concrete exercise of freedom of the press ensures journalists the right to criticize anyone, even in a harsh or forceful tone, especially against authorities and state agents. Journalistic criticism, due to its inherent relationship with the public interest, is not a priori susceptible to censorship, even if attempted legislatively or judicially. The very nature of press activities is to operate as a shaper of public opinion, a natural space for critical thought and a 'real alternative to the official version of events'." (emphasis added)

It is also worth noting that, since that same ruling in 2009, Justice Celso de Mello, now the senior member of the Supreme Federal Court, has repeatedly stated the famous... Declaration of ChapultepecThe Charter of Principles, approved in 1994 at Chapultepec Castle, located in the center of Mexico City, during the Hemispheric Conference on Freedom of Expression, is a document that Brazil has officially adopted. It states:

IV – Murder, terrorism, kidnapping, pressure, intimidation, The unjust imprisonment of journalists, the physical destruction of media outlets, any type of violence, and the impunity of the aggressors seriously affect freedom of expression and of the press. These acts must be promptly investigated and severely punished.  (…) (emphasis added)
X – No media outlet or journalist should be sanctioned for disseminating the truth, criticizing, or making accusations against public authorities.

Therefore, in a democratic regime governed by the rule of law, it is not appropriate to prosecute journalists for criticisms they have made. Even less so is it appropriate to resort to the absurd National Security Law, a remnant of the military dictatorship. To do so constitutes "intimidation" aimed not only at the targets of the measure – in these cases, Aroeira, Noblat, and Schwartsman – but at an entire profession. It thus subtly attacks Freedom of Expression. It attempts to impose fear in a vain attempt to promote self-censorship.

It should be noted that in several rulings, ministers with differing viewpoints within the Supreme Federal Court (STF) maintained the same tone regarding the critical role of the press and, consequently, of journalists. As we reported in... In pursuing Aroeira, Mendonça ignores Supreme Court decisions where he wants to sit.In a decision from June 2014, Minister Rosa Weber summarized the understanding in that court:

"A free press, by definition, has no commitment to supposed neutrality, and the day it eventually does, it will no longer be free." ".

Failed attempts

In January 2019, due to a cartoon depicting Jair Bolsonaro, then president-elect, with the Prime Minister of Israel, Benjamin Netanyahu, Fierj also attempted to sue Aroeira.

In Aroeira's specific case, this is not the first time his biting art has involved Jair Bolsonaro with the swastika. On two previous occasions, he faced similar threats of lawsuits as a result of drawings published in the newspaper. O DiaFrom Rio de Janeiro. In both cases, the claim was unsuccessful, precisely because of the constitutional right to Freedom of Expression and of the Press. A right recognized in the first instance. But, it seems, the lesson was not learned.

The first attempt by then-federal deputy Bolsonaro to sue the cartoonist was for a drawing published on April 26, 2016 (illustration above). In the lawsuit (0171549-17.2016.8.19.0001), which was processed in the 41st Civil Court of the Rio de Janeiro District, he alleged "that the publication offended his honor and denigrated his image, with the intention of inflaming already unfavorable feelings towards him." He requested compensation of R$ 50.

As reported by the website Jot, specializing in legal news, on October 12, 2018 – A cartoon associating Bolsonaro with Nazism does not create a duty to compensate. The prevailing understanding was that the cartoon fell within the constitutional right to Freedom of Expression.

Na decision (read here)Judge Camilla Prado's understanding was that the publication, despite criticizing the congressman as a public figure, did not impute any crime to him. She also recalled that, as Aroeira's defense demonstrated, Bolsonaro, A public figure and active in the Brazilian political scene, he received the support ofof groups and segments of society that identify with the Nazi movementFrom the sentence we extract:

From the analysis of the evidence presented in the case file, and the historical and political context at the time of publication, it can be inferred that the humorous cartoon against which the plaintiff is appealing does not contain offensive connotations that could cause harm to his reputation. As can be seen from the image on page 22, an artistic drawing produced by the cartoonist Renato Aroeira, the plaintiff was associated with the swastika symbol, which historically represents the Nazi movement, a political tendency existing in various parts of the world. The cartoon followed other journalistic articles, as demonstrated by the defendant on pages 79/85, which reported the support shown to the plaintiff, a public figure active in the Brazilian political scene, by groups and segments of society that identify with the Nazi movement, bearing its symbols, insignia, and distinctive characteristics. The journalistic publication, despite criticizing the plaintiff as a public figure, did not impute the commission of any crimes to him. He drew a parallel between his widely publicized and publicly acknowledged political position and another equally political tendency. The defendant exercised his duty to inform the public, offering criticism, a behavior based on the constitutional guarantee of free expression of thought, creation, expression, and information (Article 5, IV, IX, and XIV). (...) Thus, no unlawful act has been committed, and therefore there is no basis for liability that would give rise to an obligation to compensate, as the legal requirements for civil liability are absent. For all the foregoing reasons, I RULE AGAINST the plaintiff's claim.

In January 2019, the initiative to take legal action against Aroeira came from the Israelite Federation of Rio de Janeiro (Fierj), which filed a criminal complaint with the Public Prosecutor's Office of Rio de Janeiro because of the cartoon that depicted the then-inaugurated president Jair Bolsonaro and the Prime Minister of Israel, Benjamin Netanyahu, with the Nazi symbol.

The document, filed on January 15th, bore the signatures of the organization's vice-president, Arnon Velmovitsky, the legal director, Rodrigo Fux, son of Supreme Court Justice Luiz Fux, and the lawyer Rachel Glatt.

The complaint once again ran up against the constitutional right to Freedom of the Press, as is clear in the decision of the Federal Prosecutor Daniel Prazeres, in charge of analyzing the criminal complaint. His decision to dismiss the case, as is customary, was reviewed by the 2nd Coordination and Review Chamber of the Federal Public Prosecutor's Office. There it was fully confirmed, in the report of the Regional Federal Prosecutor Rogério Nascimento. Prazeres, in dismissing the request, explained:

"(...) Although it is particularly inappropriate and even crude to link the swastika to a world-renowned person belonging to the Jewish community, one cannot infer from the cartoon in question, as pictorial metalanguage, an affront to the Jewish community, but rather, and solely, an affront to the figures of two heads of government (...), despite the numerous signifiers to which the swastika refers, directly and indirectly, it can be stated that the published figure does not transcend the persons of N(...) and B(...) and criticizes a very specific period in history – the presidential inauguration in Brazil and the possible relocation of the Brazilian embassy to Jerusalem (...) However, even if the cartoon is analyzed as an offense, the conduct must be subjected to a process of weighing interests. The Brazilian Supreme Court (STF), regarding offenses and criticisms against public figures, weighs the right to freedom of expression against the right to image and privacy, generally giving precedence to the former, even in cases of tasteless criticism such as the one discussed here” (STF – ADIn 4.815 /Federal District – Plenary – judgment of 10.06.2015 – unanimous – Rapporteur Cármen Lúcia – DJe 01.02.2016). Lack of just cause for criminal prosecution. Approval of the dismissal.

All these previous facts indicate that this new attempt to intimidate Aroeira, along with Noblat and, more broadly, all journalists, will be in vain.

By decision of the rapporteur, Minister Cármen Lúcia, the assessment of ADPF 697, filed by the Sustainability Network, will be made in plenary session. She relied on article 10 of Law No. 9.868. According to this article, the precautionary measure – that is, the preliminary injunction – in direct actions such as ADPF 697, must be decided by an absolute majority of the members of the Court. In other words, it will have to be debated in plenary session.

It's even possible that the Supreme Court will understand, as the Attorney General's Office says, that the chosen remedy – ADPF (Arguição de Descumprimento de Preceito Fundamental – Claim of Non-Compliance with a Fundamental Precept) – was wrong. But, even at another time, the ministers will hardly agree to punish the cartoonist. If the investigation continues and there is any action that returns to the Supreme Court, the greater precept of Freedom of Expression and, with it, Freedom of the Press will prevail, as before. The current government needs to learn the lesson and deal with criticism.