Minister Gilmar Mendes, of the Federal Supreme Court (STF), overturned decisions of the Regional Electoral Court of Bahia (TRE-BA) that had granted the right of reply to Jerônimo Rodrigues (PT) in two publications made by ACM Neto (União Brasil) on social media during the campaign for the government of Bahia.
The decision was signed on Friday (2), two days before the first round of elections, scheduled for this Sunday (4).
Gilmar Mendes responded to a request from ACM Neto to extend to him the effects of a previous STF decision on freedom of expression during the electoral period.
The case involves two videos. In one of them, ACM Neto refuted rumors that he would end the Pé-de-Meia program if he were elected and attributed the rumors to "the desperation of the PT, of Jerônimo Rodrigues".
In the other video, the União Brasil candidate spoke about Operation Overclean, presented his version of the facts investigated and stated that he was the target of what he considers political persecution.
In the first case, Gilmar Mendes again released the video and removed the right of reply granted by TRE-BA.
"(...) Repeal the TRE/BA deliberations that determined the exclusion of the video published by the petitioning candidate on the social network Instagram about the rumors of the extinction of the social program 'Pé de Meia' (...), reestablishing the right to broadcast said material, as well as removing the recognized right of reply", says an excerpt from the decision.
In the second, it also overturned the right of reply and reinstated a previous decision that had rejected Jerônimo Rodrigues' request. However, the prohibition on paid promotion of this second post remained.
The minister stated that the Bahian court's decisions imposed an undue restriction on ACM Neto's freedom of expression.
For Gilmar Mendes, blunt criticism or possible exaggerations are not enough, in themselves, to justify the withdrawal of a political demonstration or the granting of the right to reply.
The decision determined that the rapporteurs of the processes at TRE-BA be communicated urgently. It also ordered the summons of the Mais Bahia, Mais Brasil Coalition and the Attorney General's Office.
Video about Nest Egg
The first dispute analyzed by the STF began with a video in which ACM Neto played the audio of a student who expressed concern about the possibility of Pé-de-Meia ending if he were elected.
In the recording, the candidate said he would maintain Pé-de-Meia, a federal program, and expand Bolsa Presença, from the government of Bahia. He then attributed the rumors about the end of the benefit to "the desperation of the PT, of Jerônimo Rodrigues".
TRE-BA considered that this statement attributed, without evidence, Jerônimo Rodrigues and the PT to the intentional creation and dissemination of false information. Therefore, he ordered the removal of the video and granted the right to reply.
Gilmar Mendes had a different understanding. According to the minister, the reference to the opponent was specific and generic and did not represent a specific accusation of disseminating false information.
For the minister, the statement is part of "common political rhetoric" and did not justify either the exclusion of the post or the granting of the right to reply.
Video about Operation Overclean
The second process involves a publication in which ACM Neto presented his version of facts related to Operation Overclean.
According to the STF's decision, the candidate mentioned that Minister Nunes Marques had rejected a search and seizure request against him and stated that he was the target of what he considers to be political persecution.
TRE-BA understood, by majority, that ACM Neto had exceeded the limits of political criticism.
According to an excerpt from the ruling reproduced in the STF's decision, the candidate associated opponents with an "orchestrated action to interfere in the electoral process" and said that political forces were trying to use State institutions in their own interests. For the Bahian court, the statements affected the reputation of the opponents and justified the right of response.
Gilmar Mendes disagreed. For him, ACM Neto presented his own version of the facts and the statements, although blunt, did not exceed the limits expected of a political defense piece.
With this, the minister reinstated the previous individual decision by TRE-BA that had dismissed the request for the right of reply. This decision, however, had also prohibited paid promotion of the publication, a restriction that was not removed by the STF.
Why Gilmar Mendes overturned the decisions
When justifying the decision, Gilmar Mendes cited two previous STF judgments, ADPF 130 and ADI 4,451, on freedom of expression and the limits on restrictions on demonstrations during electoral processes.
According to the minister, the Supreme Court's understanding also protects "dubious, exaggerated, blunt or even erroneous" statements, as long as they do not involve the attribution of facts known to be false or slanderous.
In the case of the two videos by ACM Neto, Gilmar Mendes concluded that the publications contained opinions, value judgments and information related to the electoral debate and that the TRE-BA decisions unduly restricted the candidate's freedom of expression.
The minister also stated that, in the face of disagreements about this type of demonstration, the response must occur in the public debate itself, with the presentation of opposing arguments.
