In April 2022, soon after announcing he would buy the platform then still known as Twitter, billionaire Elon Musk explained his definition of online free speech. “By ‘free speech’, I simply mean that which matches the law,” he wrote in a post on the platform, which he has since renamed X. “If people want less free speech, they will ask government to pass laws to that effect.”
That stated philosophy is now facing its biggest test yet in Brazil, where Supreme Court judge Alexandre de Moraes banned X last week over its failure to appoint a legal representative in the country and its refusal to take down accounts that Moraes said were spreading disinformation. X has responded by criticizing Moraes’s orders as “illegal” and publishing those sealed orders through a new account called “Alexandre Files.” Musk himself has attacked the judge as an “evil dictator,” sharing memes depicting him as Star Wars and Harry Potter villains.
In the process, X has lost access to one of its biggest global markets until it adheres to the Supreme Court’s ruling (which was upheld this week by a five-judge bench of Moraes and his colleagues). The platform is estimated to have more than 20 million users in Brazil—more than all but five other countries—and, as is the case in much of the world, punches far above its numerical weight when it comes to influence on the public conversation. It became one of the major platforms implicated in the Jan. 8, 2023, attack on government buildings in Brasília by far-right supporters of Brazil’s former president, Jair Bolsonaro. This week’s ban is rooted in Musk’s refusal to block accounts linked to that incident and his subsequent decision to shut down X’s Brazil offices rather than comply.
“The issue has been heavily politicized,” said Fernanda Campagnucci, a Brazilian researcher at the Institute of Political Science at the University of Münster in Germany. Far-right supporters of Bolsonaro have portrayed the ban on X as a sign of Moraes’s vendetta against them, she added. But Campagnucci, one of half a dozen Brazilian legal experts who spoke to Foreign Policy, said the broad consensus among the country’s civil society is that the ban, “although drastic, was necessary.” Brazilians also appear to be voting with their keyboards—more than 2 million have signed up for X rival Bluesky in the past week alone.
There are several more layers to the story. Starlink, another one of Musk’s companies that provides satellite internet to countries, nearly faced a ban of its own for initially refusing to block access to X in Brazil (it ultimately complied).
Musk is not the first tech billionaire—nor X the first platform—that Moraes has gone after in an attempt to crack down on illicit content. In 2022, Moraes ordered a ban on Telegram, another hugely popular but controversial app in Brazil, over its unresponsiveness to orders to crack down on accounts sharing disinformation. But the ban was short-lived, with Telegram founder and CEO Pavel Durov hurriedly complying two days later. Telegram faced another near-ban last year for the alleged proliferation of neo-Nazi groups on its platform, but that was also overturned by a judge.
X is approaching things differently. “While the threat of blocking itself is nothing new and is provided for in our legal system, this case stands out as the first on a large scale in which a company has completely ignored court rulings for days—and sought the spotlight for it,” Campagnucci said.
Much of that is down to the whims of one man. “Most people are concerned about Elon Musk’s erratic behavior and the fact that he is putting himself above the law in Brazil, especially after X/Twitter made so much money in the country over the past decade,” said Ronaldo Lemos, a lawyer who helped create Brazil’s landmark internet bill of rights known as the Marco Civil da Internet in 2014.
Lemos echoed concerns that some of the Brazilian apex court’s actions have been extreme, including imposing fines of over $8,000 on anyone using a virtual private network (VPN) to circumvent the ban, as well as the pressure on Starlink. “The Supreme Court makes mistakes, but refusing to comply with its rulings is not the way. There are institutional avenues that X could have used to reverse those decisions,” he said. “A significant portion of Brazilian society would be on X’s side if it played by the rules.”
Brazil also isn’t the only place where Musk has picked a fight with tech regulators. In July, the European Commission found X to be in violation of its new Digital Services Act (DSA) aimed at regulating online content. It accused the platform of deceiving users by allowing anyone to purchase a verification badge, flouting advertising transparency requirements, and failing to provide researchers access to its public data. Musk responded by getting into a spat on X with European Commissioner Thierry Breton (which included a profane meme), alleging that European authorities had offered him an “illegal secret deal” to censor content and saying he looks forward to a “very public battle in court” with them.
X is the first large social media platform to face legal proceedings under the DSA, which was enacted in 2022, and could be forced to pay fines of as high as 6 percent of its global revenue if it is ultimately found to be in violation. Other aspects of the investigation into X, such as its content moderation practices and ability to fight disinformation, are still in progress and could yield further findings, a European official told Foreign Policy on condition of anonymity.
The official declined to comment on what X might do next but pointed out that platforms such as LinkedIn and Meta have taken steps to comply with the DSA in response to the commission’s inquiries. “There are some platforms so far … that have complied, and the dialogue with X is ongoing.”
Musk’s purported dual commitment to free speech and local laws appears to be applied somewhat selectively. The first year of his ownership of X saw a sharp rise in the number of government takedown demands that the platform complied with. That included blocking the distribution of footage of a BBC documentary in India that was deemed critical of Indian Prime Minister Narendra Modi and restricting certain posts in Turkey in the lead-up to that country’s presidential election. (X has since stopped publishing data on government takedown requests it receives.) In Australia, however, Musk again chose to stir the pot, accusing the government of “censorship” when asked to take down videos of a knife attack at a Sydney church.
X and Musk did not respond to requests for comment on how they decide which laws they will comply with. Experts say thus far the biggest—and often sole—determinant seems to be Musk himself. “He fostered the idea that he could be manipulated, he could be persuaded to either act or not act depending on his political affiliations, his political interests, his business interests, and so forth,” said David Kaye, a law professor at the University of California, Irvine, who previously served as United Nations special rapporteur on the promotion and protection of the right to freedom of opinion and expression. “The overall message that you get from all of this is that Musk is manipulable. X is not standing up for users as much as it’s standing up for its own interests—and those interests vary from country to country.”
One of the most recent fights Musk waded into wasn’t even his own. A week before X’s Brazil ban, authorities in France arrested Durov, the Telegram founder, after he landed in Paris. French prosecutors questioned him for four days before bringing several charges against him including complicity in operating an online platform that facilitates illicit transactions, enabling the distribution of child pornography, drug trafficking, and money laundering; as well as providing cryptology services without a declaration.
Musk slammed Durov’s arrest in a series of posts, sharing a clip of Durov’s recent interview with right-wing media personality Tucker Carlson with the hashtag “#FreePavel.”
Durov and Musk are kindred spirits—both men espouse an ethos of unfettered free speech, which has resulted in both of their platforms being generally reluctant to moderate content even when it is harmful or possibly illegal. While the government actions against Durov in France and X in Brazil are different in many respects and should not be treated as equivalent, “where there are similarities between Telegram and X is that these are companies that are run in a personality-dependent way,” said Kat Duffy, a senior fellow for digital and cyberspace policy at the Council on Foreign Relations. “Where you see more mature companies, especially companies that are publicly traded, I think you tend to see a greater emphasis on due process and on procedure and on consistency,” she added. “With X, what you are seeing are the whims of the company that is controlled by one individual who operates erratically and inconsistently—that is admittedly hard for any government to navigate when they’re concerned about domestic impacts.”
And while both cases have their own characteristics and contexts, they’re indicative of a tipping point of sorts in the tug-of-war over online speech between governments and tech companies. Governments are increasingly taking a harder line in that fight—as illustrated by Brazil, France, and Europe—and personality-driven companies such as Telegram and X are perhaps lower-hanging fruit than their more established and publicly traded counterparts such as Google and Meta. “At its heart, this is a fight about power rather than about free expression,” Duffy said.
The world’s wealthiest man has positioned himself as the enfant terrible of that fight. “How we got to this point is … Elon Musk’s ego,” said Bruna dos Santos, global campaigns manager at the advocacy group Digital Action. Santos is also convener of the Global Coalition for Tech Justice, a group of more than 250 rights groups and activists that published an open letter on Monday specifically targeted at Musk, calling on global policymakers to institute minimum tech accountability standards.
Still, Santos and other experts also say bans like the one on X are an unfortunate and potentially troubling consequence of the battle between government and tech. “I think people agree on the need to take action, people agree on the need to regulate platforms, but might have doubts on whether banning their access to a platform that was seen as such a dear one to Brazil is actually necessary or even proportionate,” she said. “The premise works both ways—if a progressive democracy like Brazil is taking an action such as banning a platform or banning access to VPN, this legitimizes a lot of other authoritarian kinds of ideas and approaches to the internet that happen all over the world.”
In the battle between Musk and Moraes, “I don’t think either party has maybe been their best here,” said Duffy, pointing to the curbs on Starlink and VPN fines as examples of overreach on Brazil’s part. There’s also a more fundamental, philosophical issue with the requirement for platforms to have a local representative, often referred to as “hostage-taking” laws, which depends very much on “if you have faith in the rule of law in the country that is demanding that,” she added.
“If Russia were demanding that a local official be registered—which they have—and an American company refused and that American company was blocked, we would not be having the same controversy right now that we are having with Brazil.”