In July 2017, Brazil’s former President Luiz Inácio Lula da Silva (“Lula”) was convicted on corruption and money laundering charges. His appeal was denied in January 2018, and he started serving his sentence in April 2018. Although Lula was in jail, his party (the Workers Party, or PT) attempted to nominate him as its candidate for the October 2018 presidential elections. But pursuant to Brazil’s Clean Records Act (which Lula himself signed into law when he was President), individuals whose convictions have been affirmed on appeal cannot run for elective offices. Though Lula and his defenders argued that he should be allowed to run anyway, his candidacy application was denied; ultimately, as most readers of this blog are likely aware, far-right candidate Jair Bolsonaro defeated the PT’s alterative candidate, Fernando Haddad, in last October’s election.
Perhaps less well known, at least outside of Brazil, is the fact that in the run-up to the election, Lula received several invitations from the press to give interviews. Although there is no clear rule on whether prisoners are allowed to give interviews in Brazil, past practice has been to allow the press to reach out those in jail under the authorization of the prison management. After the prison denied several requests by media organizations to interview Lula, those media outlets turned to the courts, asking for the right to interview Lula. The courts said no. The Brazilian Supreme Court, in an order by Supreme Court Justice Luis Fux, issued a preliminary injunction blocking the interviews stating (in a free translation from Portuguese):
Regulating the freedom of the press is particularly important in the period before the election day because the protection of voters from false and imprecise information protects the functioning of democracy […] There is a high risk that the release of interviews with the defendant Luiz Inacio Lula da Silva, who had his candidacy registration denied, will sow misinformation on the eve of the elections. Considering the proximity of the first round of presidential elections […] the intended interview would create confusion on the part of voters, suggesting that the defendant presented himself as a candidate or engaging in actions forbidden to him.
The Supreme Court’s decision also mentions several occasions where the PT violated the rules of electoral process and the restrictions following the denial of Lula’s candidacy registration.
Considering that (a) in previous occasions Brazilian press was allowed to interview many prisoners in jail and (b) Brazilian Constitution gives a broad protection to the freedom of the press and prevents prisoners to be held incommunicado, as well as prison laws that allow prisoners to communicate with the external world through written letters and other means, the Court’s suggestion that the press does not have the right to interview Lula is untenable. The Court seems to acknowledge that under ordinary circumstances the press would have the right to interview Lula (rather than leaving it to the discretion of the prison authorities), but the Court suggested that this right is limited in this case because of the alleged risk to the integrity of the elections. The rationale seems to be that a person convicted of corruption might use his influence to interfere with the electoral process, perhaps in a manner inconsistent with the eligibility requirements set forth by the Clean Records Act. Yet the approach adopted by Brazilian Supreme Court in this case is inappropriate:
- First, and most obviously, preventing the press from interviewing an individual serving a sentence for corruption offenses interferes with the freedom of the press, freedom of speech, and the ability of voters to access information and opinions that the citizens deem relevant to their voting decisions. There may be good reasons to prohibit an individual convicted of corruption — especially someone currently incarcerated — from running for office, in order to protect the integrity of the government. The justifications for preventing voters from hearing from such individuals are much weaker.Thus, while the Clean Records Act seeks to prevent people who do not fulfill minimum ethical standards to occupy elective offices, it is not meant to give courts the power to do whatever the judges believe is necessary to neutralize any influence such individuals may have over the political process.
- Second, the assumption underlying the Supreme Court’s decision seems to be that, if Lula had been permitted to give interviews in the run-up to the election, he mighthave said something that would compromise the integrity of the elections or been inconsistent with the Clean Records Act. In addition to demonstrating an unjustified lack of confidence in the ability of the press to provide readers with accurate contextual information, the Supreme Court’s prophylactic approach is unnecessary, because Brazilian laws already provide adequate remedies. Brazilian law regulates political advertisements and guarantees a right of reply (i.e. those injured by accusations made by rivals have the right to have their reply published at the expense of the rival), and requires that radio and TV stations provide equal coverage of rival candidates, including equal time in interviews. The law further allows for the possibility of challenging candidates who abuse political or economic power in violation of electoral rules. This sort of after-the-fact penalization of election law violations is preferable to the before-the-fact restriction on potentially informative political speech.
Controlling corruption is undoubtedly essential for preserving a healthy democracy and enhancing the quality of public service. The Clean Records Act is a key achievement of Brazil’s recent efforts to preserve the integrity of electoral process and public administration. But the judiciary should not be in the business of deciding who should be part of the political debate, nor should anticorruption and public integrity be used as a pretext for depriving citizens of information or controversial opinions. Controlling what the press can say about elections is bad not only for anticorruption agenda, but also for democracy.
GAB | The Global Anticorruption Blog 
Victor, fascinating post–thank you! On thing that you write, that I particularly agree with, is that the Court’s decision “demonstrat[es] an unjustified lack of confidence in the ability of the press to provide readers with accurate contextual information.” What I might add to that, however, is that the Court’s decision also implies a lack of confidence in the ability of citizens themselves to contextualize the statements–indeed, the Court seems to be acting in quite a paternalistic manner. I wonder how much of the Court’s justification–whether stated or unstated, conscious or subconscious–is concern over how social-media streams and #FakeNews could construe any statements given by Lula? Perhaps the Court thinks such concern overrides your well-articulated arguments to the contrary (although I agree with your perspective, and would disagree with the Court, if that were indeed the case).
Thank you for this fascinating post, Victor. I found it particularly interesting that the Court’s reasoning (at least the part that you translated into English in your post) does not focus on potential limitations on the freedom of speech of prisoners or of people who were convicted of corruption, but rather on “protection of voters from false and imprecise information”. One could argue that this reasoning might be used in the future to set further limitations on freedom of speech where courts determine that people – even non-prisoners – may potentially spread “false and imprecise information” which “would create confusion on the part of voters”.