Moche, Milei and the scales of Justice

Before he was thrown off of Twitter and Facebook for “inciting violence,” the courts in the United States had already set limits on US President Donald Trump’s use of social networks. In July 2019, during his first term in office, a New York court of appeals ruled that Trump had been violating the US Constitution – particularly the first amendment dating back to 1791, protecting the right to freedom of speech – when he blocked comments critical to him on his account @realDonaldTrump.

Trump’s defence team, the White House and the US Department of Justice then argued that the US president's account was a “private profile” and that Trump could do with it as he saw fit. The New York court, with the unanimous vote of its three members, responded that from the account @realDonaldTrump Trump was undoubtedly acting as head of state. “The President and his aides have repeatedly characterised the account as official. The White House has described the account as one of the ways the President communicates with the American people ... The President uses the account to announce matters of official policy, and his staff handles some aspects of the account. Therefore, we concluded that the evidence on the official nature of the account is overwhelming,” the court stated in its ruling.

In April 2021, the case reached the US Supreme Court, which shelved it without coming to a conclusion on substantive matters. The account, by that time,  did not exist anymore and Trump was no longer president, and the conflict became moot.

Last Monday in Argentina, La Plata Federal Judge Alberto Recondo ruled that President Javier Milei would not have to delete a post from his account, @JMilei, on the X social network (formerly Twitter) in which the head of state trained his ire on Ian Moche, a 12-year-old boy with autism and an activist for the rights of people with disabilities. Moche was the target of a campaign by ruling party trolls and eventually resorted to the courts to get the President to delete his tweet, which ended up being part of that campaign. Milei’s post pointed to an interview given by the child to reporter Paulino Rodrigues on the LN+ news channel: “Pautino (sic) is always on the side of evil, on the side of Kirchnerites,” reads the President’s post, which featured an image of Moche.

Some considerations of the judge’s ruling are curious, to say the least. Judge Recondo:

– Dismissed the accusation that Milei’s post was harassment against Ian Moche (“Did the President harass the minor? I do not find the case to reasonably qualify as an attack on the minor’s honour and reputation.”)
– Said that it was a criticism of the journalist who interviewed him (“Criticism against a journalist who interviewed a child does not imply the child interviewed by a journalist has been criticised.”)
– Held that the statement by the President was a “repost” (previously known as "retweet") and not in “total adherence” with the content of the original tweet (“As for the President’s reposting, that action does not automatically entail total adherence to the content or equate it with co-authorship – that standard would lead any user to be fully responsible for other people’s expressions”).

Finally, Recondo claimed that the message was “sent from the private personal account of Mr Javier Milei” and should not be construed as “a state act, with public investiture.” The judge continued: "“An official may choose not to speak while exercising his official responsibilities, but to speak with their own voice. Freedom of speech protects public officials when speaking as citizens, even on matters of public interest.”

Recondo agreed with the President as much as hepossibly  could. Last week, in a document in response to a request for clarification by the judge on the posting, Milei had argued that the account @JMilei was personal, that his expressions could not be taken as the President’s and that they werre only a “critical opinion” of the work of a journalist. “It is not a state act, it is a publication protected by the constitutional right to freedom of speech guaranteed under the Constitution and international treaties recognised under the Constitution,” Milei stated.

Appeal

Constitutionalist lawyer Andrés Gil Domínguez, who has represented Ian Moche, says that he will appeal Recondo’s decision before the La Plata Federal Court of Appeals.

“The judge accepted that Milei was acting as a President, otherwise the case should have been brought before civil courts. The judge should have never declared himself as competent. The ruling is null and void because the judge is ruling on something over which he has no jurisdiction,” Gil Dominguez reacted in conversation with Perfil.

On July 15, the judge granted a request by prosecutor Julio Gutiérrez Eguía and agreed with him in the sense that his court had jurisdiction over the Moche case. In the same request the prosecutor claimed that the account @JMilei was an official account verified by X with a grey tick (which according to the social network identifies “government individuals nationwide: heads of State, presidents, monarchs and prime ministers, among others”).

The opinion of Judge Recondo as to the true nature of the account from which he posted is crucial for Milei. It is a precedent for another case, the one investigating alleged fraud in the launch of the '$LIBRA' cryptocurrency $, which Milei promoted on February 14 from the same account he mentioned Moche from. That post by the President caused an exponential rise in the value of the memecoin, but later Milei withdrew the tweet and the cryptocurrency plummeted in value, causing losses to the tune of hundreds of millions of dollars. The case is under investigation by the local courts. Compared with an ongoing civil suit brought in the US by those affected, the domestic case is running at a tiresome pace.

Marlene Spesso, the mother of Ian Moche, will have to bear the costs of the court proceedings. And Milei’s tweet will remain on X.

It is not easy in Argentina to detach oneself from the impression that courts are not severe enough with the political power. The lack of correspondence in a conflict involving the voice of a president and that of a 12-year-old boy makes any comments unnecessary.

However, in somewhat capricious symmetry, another ruling became known on Monday. A judge who also has federal jurisdiction, Adrián González Charvay, from Zárate-Campana, declared the invalidity of the veto of the National Disability Emergency Law approved by Congress, in an overt defiance of the La Libertad Avanza leader. The judge granted an unconstitutionality “amparo” claim filed by the parents of two 11-year-old boys whose access to treatment and school was threatened.

The opposition called for special sessions on Wednesday in the lower house Chamber of Deputies to deal with an agenda including this and other presidential challenges, such as pension increases and the temporary moratorium, in addition to debating the bills to regulate contributions subject to federal revenue-sharing and to authorise the commission to investigate the '$LIBRA' cryptocurrency case.

We will witness some wrestling in the run-up to the election. And it is likely that, as was the case with Donald Trump in the US, the Ian Moche case will end up in the Supreme Court.