Brazilian Court dismisses secret defamation case against Brian Mier

In victory for free speech, TRF-3 Regional Federal Court rules Mier's critique of Congresswoman Tabata Amaral represents "defense of the rights of teachers and students."

Congresswoman Tabata Amaral with then-Governor of São Paulo, Joao Doria

Last week I found out that a Brazilian parliamentarian secretly filed criminal charges against me. While searching for my own name out of boredom on a Brazilian legal website I discovered that I appeared to be on trial in Sao Paulo's Federal Regional Court 3. According to the website, the charges had been filed by Congresswoman Tabata Amaral, who I have never met or spoken to personally. Wracking my brain to try to remember where I had ever publicly commented on her, I contacted a friend who is a lawyer to find out what was going on.

Half an hour later he sent me three court documents and explained that in April, 2021, Amaral filed criminal defamation, slander and injury charges against me in the TRF-3, a regional level federal court. "Don't worry though," he laughed. "You won."

I opened the court documents and learned that when the prosecutors couldn't find me, after a series of misadventures involving sending confused police officers to my ex-girlfriend's mothers' house in a favela on the periphery of São Paulo, the court concluded that I must be "living in Chicago" and appointed a public defender to represent me. To my surprise, knowing what kind of caseloads public defenders have to deal with in Brazil, I learned that he had won the case. On August 13, 2021, Judge Ali Mazloum ruled that, far from committing defamation or slander, I had merely made "a strong critique in defense of the rights of teachers and students in a political context in which the Plaintiff, who is a parliamentarian, is involved."

What happened?

During the height of Brazil's Covid 19 pandemic, a group of São Paulo business elites, including a former director of the Lemann Foundation who served in Jair Bolsonaro's Education Ministry, started a campaign to reopen schools before teachers could be vaccinated. The plan was endorsed by Jorge Paulo Lemann - Brazil's richest man. Congresswoman Tabata Amaral, who received her bachelors degree from Harvard University through a scholarship from Lemann, began to echo her mentor's call.

Initially marketed as a progressive in Brazil and the US, where corporate regime change lobby group AS/COA attempted to frame her as the Brazilian AOC, Amaral first lost credibility when she sided with the Bolsonaro coalition to raise the retirement age in 2019. In April, 2021, as São Paulo's Mayor and Governor got on the bandwagon to push for school reopening, despite push back from the Teachers union and public health officials, Amaral sided with the Bolsonaro coalition to fast track a national law mandating public school reopening.

This is when I made two tweets which resulted in the charges:

I'm glad I didn't find out about it until it was over. It would have been stressful to know a powerful politician was trying to silence me in a federal court and that I faced possible jail time. This wasn't a civil case after all, and no attempt was made to contact me, for example on Twitter, to request that I take my tweets down and apologize. This was nothing but an attempt to to suppress the free speech rights of a journalist - something which is noted in the ruling by Judge Ali Mazloum.

The following is my translation of key parts of the court ruling:

To constitute defamation, the following elements must be present simultaneously: (i) the attribution of a specific act qualified as a crime; ii) the normative element, which involves the falsehood of the allegation; and (iii) the subjective element, known as animus calumniandi.

However what is observed in the present case is merely a strong critique in defense of the rights of teachers and students in a political context in which the Plaintiff, who is a parliamentarian, is involved.

The accusatory piece does not precisely describe the elements of the crime of defamation that would be present in the Respondent's statements, that is, the false attribution of well-delineated criminal facts.

Let us then examine the statements made by the Respondent that are deemed to be of a defamatory nature:

"Now she is parroting Lemann's appeal to kill more teachers by reopening public schools before they are vaccinated."

This statement does not attribute any crime to the Plaintiff, as there is no minimal causal link between the possible death of teachers due to contamination by the new Coronavirus and subsequent illness from Covid-19 and the political actions of the parliamentarian, now Plaintiff, in defense of a bill that authorized the reopening of schools during the pandemic.

Next, the other publication made by the Respondent, containing alleged defamation against the Plaintiff:

"In a context where three times more people are dying per day compared to the peak of the first wave of Covid-19 in Brazil, her genocidal recommendation to reopen schools for the poor attracted so much criticism that today she announced she is 'tired of social media.'"

What we have here is an adjectival emphasis on the Respondent's dissatisfaction with the parliamentarian's actions, thus constituting evident criticism, certainly with the use of excessive language, but far from imputing a crime to the Plaintiff. Therefore, the animus caluniandi is absent.

As can be seen, the behaviors described in the criminal complaint are not criminally typical, merely constituting an expression of personal opinion by a social media user on Twitter regarding parliamentary work.

It should also be noted that the criticisms made by the Respondent against the Plaintiff were made under the nebulous political climate in which the country finds itself, notably when the subject is the Covid-19 pandemic and its consequences.

Lastly, a public search conducted using the Google tool shows that the Respondent is an international correspondent who worked in Brazil (https://twitter.com/brianmtelesur), meaning he is a journalist.

Therefore, following the lessons of Supreme Federal Court Minister CELSO DE MELLO (ARE 722.744/DF), it is clear that the concrete exercise by journalists of freedom of expression, whose foundation lies in the text of the Federal Constitution itself, ensures the journalist's right to criticize, even if unfavorable and in a forceful tone, against any person or authority, so that in the context of a society founded on democratic bases, state repression of thought is intolerable, especially when the criticism arises from the legitimate practice of a public freedom with an eminently Constitutional foundation.

According to the eminent Minister CELSO DE MELLO, journalistic criticism represents a right imbued with constitutional qualification, fully opposable to those who engage in any activity of interest to the general public, as the social interest, which legitimizes the right to criticize, supersedes any susceptibilities that public figures might reveal, regardless of the degree of authority they possess.

It is important to emphasize, finally, that the Plaintiff, in her capacity as a political agent, cannot expect her actions to be immune from any criticism by her ultimate audience: society. Therefore, imputing a crime to someone for criticism received during the exercise of a political mandate would be tantamount to curtailing the freedom of expression protected by our Fundamental Law.

Thus, as the accusatory piece does not demonstrate the typicality of the conduct attributed to the Respondent, there is no just cause for the criminal action, for which reason I REJECT the present criminal complaint, which I do based on Article 395, item III, of the Code of Criminal Procedure.

Signed by Judge Ali Mazloum, August 13, 2021