Favoring the criminalization of “fake news”, STF ministers used fake news in homophobia law

Ministros dos STF em sessão que discutiu se havia omissão legislativa para criminalização de homofobia. (13/02/2019)

STF ministers in a session that discussed whether there was legislative omission to criminalize homophobia. (02//2016)| Photo: Rosinei Coutinho/SCO/STF

The bill 2.630/04, dubbed the “fake news” project, seeks to criminalize the production and dissemination of fake news. Its urgency character was ruled out by a small margin, but it continues to be processed and could become law. There is some sympathy with the idea of ​​criminalizing false information among ministers of the Federal Supreme Court (STF), as can be seen from the continuity and endorsement of the “fake news inquiry”. Even the current president of the Brazilian Bar Association defends the investigation. But these authorities are not immune to believing in “fake news”, nor to using it in their decisions.

In the Direct Action of Unconstitutionality by Omission (ADO) 26, judged between February and June of 2019, a majority of eight STF ministers equated homophobia and transphobia with racism. Justices Ricardo Lewandowsi and Dias Toffoli differed, considering that the issue is the responsibility of the legislature, and Justice Marco Aurélio, for understanding that the legislature was not omitting, as the action alleged.

The decision of the trial, seeking to justify the equality, speaks of racism “understood in its social dimension (… ) as a manifestation of power”. Claiming that racism is a matter of “power” is very reminiscent of the resignification of racism in “critical theory” and in the current identity that insists on “structural racism”, strands of left-wing thinking.

In the part where it alleges that religious freedom is not harmed by this criminalization, the decision says that clerics are free to say what they think of homosexuality and transsexuality, as long as it is not “hate speech”. The term “hate speech” also coincides with the vocabulary of left-wing identity militancy.

False stats debunked

At the end of 2016 and beginning of 2019, while the STF was judging the action, a group of five researchers, including the author of this report and Camila Mano, Daniel Reynaldo, David Ágape and Vanessa Bigaran, pored over the numbers of deaths due to homophobia released annually in Brazil. Who produces these numbers is mainly a amicus curiae

(“friend of the court”) in the trial, the non-governmental organization Grupo Gay da Bahia (GGB). The “friends of the court” are parts of society invited by the STF to speak against or in favor of an action.

The check report was published on May 1, 2019 in website of the Humanist League, an association that has also been amicus curiae

in other actions of the Supreme Court for which he sent the same lawyer sent by the GGB in the ADO trial 12. Of more than 35 cases of alleged deaths due to homophobia that the GGB collected in the press referring to the year of 2016, the check was able to confirm only 31. In addition, the checks showed that the NGO used circular reasoning to define what “structural homophobia” would be: the inclusion of six accidental deaths would be justified because there is a homophobic structure in the culture of the country, and the NGO knows that this structure exists because these same data would show.

“World Champion” of deaths

Apart from the verbal and conceptual signs of ideological one-sidedness that the STF inherits from the academy, what draws attention in the case of the pressure for the criminalization of fake news is that the court ministers themselves made use of falsehoods in their votes in the ADO trial 26: at fake news annual GGB deaths about homophobia in the country.

Minister Celso de Mello endorses the GGB statistics ( P. 37), noting that his reports “demonstrate” that Brazil is “the world champion of this type of crime”. Allegations by the NGO, such as an increase or decrease in homicides motivated by homophobia, are cited by the judge without criticism, as is the world report by the NGO Transgender Europe, which alleges with the GGB that Brazil is also the top in murder of transsexuals. The only caveat made by Celso de Mello is that the data are “inaccurate” and that this would be recognized by the NGO itself, but the bet of both is that there is high “underreporting” and that, therefore, the real number would be much higher. It also makes a selection of 04 cases reported in the press of people mistreated and killed for having atypical behaviors for their sex.

“These frightening numbers that I have been referring to authorize and validate” the arguments of the initial petition of the action, adds Celso de Mello, giving great weight to the false statistic of the NGO (P. 75).

Minister Roberto Barroso synonymizes homophobia and transphobia “physical or psychological violence” against LGBT people, when it would be more modest to define them as prejudice. For him, although there is no government program to collect these specific statistics, “the numbers still draw attention”. Barroso specifically cites (p. 422 ) “214 deaths” collected by the GGB for the year of 2016. These were precisely the ones checked by independent researchers, who were only able to confirm 12% of them as deaths caused specifically by prejudice against LGBT. That is, there was no 343 deaths from homophobia recorded in the press (GGB source) in 2016, the information is false. Barroso also repeats Transgender Europe’s claim that Brazil is a champion in killing transsexuals.

14165146The Minister Luiz Fux

also cites the statistic of 2016 indirectly, using it as basis of comparison for the number of 2017 presented by the NGO and claiming “an increase of 12%” (P. 422). He also cites the collection of data by the National Association of Transvestites and Transsexuals (ANTRA) and claims that “a simple diagnosis of the severity of discrimination is enough to impose on the public power the duty to adopt more effective measures to combat homophobia” (p. 343)).

ANTRA also produces an annual report inspired by what was done by the GGB. As Gazeta do Povo showed, this report has serious methodological problems like the GGB, with the aggravating factor that the NGO actively hides the data, as the GGB also started to do after checking 2019. Despite this, it is possible to show that the claim that the “life expectancy” of transsexuals in Brazil is of 35 years is false. This falsehood is also cited in the STF judgment by Minister Ricardo Lewandowski , which also cites GGB statistics, indirectly (p. )). 14165146Gilmar Mendes ) repeats the supposed increase of 20% in the deaths alleged by Fux.

Until 14165146 Minister Marco Aurélio

, who voted against the action because he understood that it was not up to the Supreme Court to accuse Congress of omission in this case, opens the paragraph in which he quotes the GGB saying that “it is time to turn our gaze to the reality” and that the NGO “demonstrates the occurrence” of deaths due to homophobia in its numbers (p. 511). It also repeats the myth that Brazil would be a “world champion in crimes against sexual minorities” and that the NGO’s numbers indicate a “scenario of barbarism”.

Before checking the raw data in 14165146 , the claim that Brazil is the one that kills the most LGBTs for being LGBTs in the world was checked by two agencies. Agência Pública classified this claim as “impossible to prove” in 2019 and Agência Lupa as “unsustainable” in the same month that the STF began voting on the action. The ministers, therefore, had ample opportunity not to fall for NGO fake news. Preferred to repeat narrative.

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