The dispute concerns a false claim circulating on social media that Senator Flávio Bolsonaro of the Liberal Party (PL) would strip Our Lady of Aparecida of her title as Brazil’s patron saint if elected. The claim reportedly harmed the senator’s campaign, prompting him to seek intervention by the Superior Electoral Court (TSE).
On Friday, September 25, Supreme Court Justice André Mendonça ruled for the candidate, described the posts as manifestly untrue and ordered their removal. On Sunday, September 27, Justice Flávio Dino overturned that decision and allowed the posts to remain. Dino said the record did not establish with sufficient certainty that the material was unlawful and defended freedom of expression.
Fernando Neisser, an election-law professor at the Getulio Vargas Foundation in São Paulo, called Dino’s decision correct. He argued that restricting speech during an election is justified only when a claim is indisputably false. Neisser also said Mendonça’s order covered hundreds of posts by people who were not parties to the case, and argued that the Supreme Court should be able to correct TSE errors, particularly close to an election.
Election-law attorney Emma Roberta Bueno also supported lifting the restriction, saying voters should be able to debate possible positions of the Bolsonaro family and criticise the campaign. She warned, however, that the decision could be read to permit statements beyond the case at hand. Bueno distinguished between discussing whether the family might seek to change the religious title and falsely claiming that Flávio Bolsonaro himself had said he would do so if elected.
Bueno raised a broader concern about the Supreme Court’s increasingly frequent use of constitutional complaints and whether that procedure could become a way to review TSE rulings. In this case, she noted, no new complaint was filed; a petition was presented in an existing complaint brought by a third party. She said the approach could raise questions about due process and the right to have a case heard by the legally assigned judge.
Rafael Cezar dos Santos, an election-law specialist and partner at Callado, Petrin, Paes & Cezar Advogados, also endorsed Dino’s decision. He said this year’s election has shown the electoral judiciary seeking to preserve democratic debate, including forceful or uncomfortable criticism, while keeping judicial intervention limited.
Dos Santos added that this does not mean every kind of content should be allowed without restriction. Courts may intervene in exceptional cases involving a demonstrably false factual allegation or a serious factual claim without a concrete basis that could undermine the integrity of the election. The challenge, he said, is to treat freedom of expression as the starting point and impose sanctions only when illegality is sufficiently established.