Elon Musk gets SLAPPed
He got his ass handed to him in federal court for — irony alert! — trying to stifle speech.
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Normally, 52-page federal court decisions are not a blast to read. However, when it is California federal district court judge Charles Breyer slapping down Elon Musk for one of his predatory lawsuits, it’s an actual delight.
Breyer threw out X’s lawsuit against a nonprofit that tracks hate on the internet, and he didn’t mince words when doing it.
Back in July 2023, X filed a lawsuit against the Center for Countering Digital Hate (CCDH) over their report, Toxic Twitter, which detailed how Musk’s “amnesty” policy, introduced shortly after he bought Twitter, returned some of the worst people to the platform. CCDH looked at 10 of the highest-profile accounts, including such luminaries as Andrew Tate, an online influencer currently facing rape and human trafficking charges in Romania, Andrew Anglin, an actual neo-Nazi who founded the Daily Stormer, and Gateway Pundit aka Jim Hoft, a hard-right blogger who is an enthusiastic proponent of the Big Lie that Trump won the 2020 election.
Bringing back Tate, Anglin, Hoft, and seven other previously-banned high-profile purveyors of hate and disinformation resulted in those ten accounts alone racking up 2.5 billion tweet impressions from December 2022 to February 2023. The CCDH report extrapolated that, at that rate, those ten accounts would have close to 20 billion impressions in a year. CCDH then looked at how much Twitter ads cost and how often they are shown and determined those ten hate-fueled accounts alone could result in up to $19 million in ad revenue for X.
Though Elon spends all day hanging out on X with the worst right-wingers on the platform, he was unhappy that CCDH chose to point out that those right-wing accounts have the potential to earn him serious advertising cash if brands didn’t mind being associated with white supremacists and the like. So he sued CCDH, arguing that their goal wasn’t to expose the hate on the platform but instead to “censor a wide range of viewpoints on social media with which it disagrees.” Musk didn’t bother to explain how CCDH, a non-profit with no role at X, could “censor” anyone. He also took aim at them for using a scraping tool to search X, saying that it amounted to unauthorized access of the platform.
At root, Elon is mad that groups like CCDH highlight what a cesspool X has become under his ownership, which can result in brands deciding not to advertise on the platform. In the Toxic Twitter report, CCDH noted that ads from Apple, Amazon, and the NFL had appeared next to the 10 restored accounts. X’s lawsuit alleged that the company had been harmed because CCDH caused it to lose ad revenue. Of course, plenty of companies have pulled their advertising over antisemitic tweets from Elon himself. Elon’s genius response was to tell brands, “Go fuck yourself” and complain about advertisers “blackmailing” him.
Elon’s lawsuit against CCDH went exceedingly poorly, with CCDH prevailing on a motion to dismiss. A motion to dismiss means that the party being sued — in this instance, CCDH — doesn’t even file an answer to the lawsuit. Instead, they ask the judge to throw out the lawsuit entirely.
Judge Breyer sees through Musk’s BS
Elon styles himself — and the platform — as championing free speech. That’s only true if you define “free speech” to mean “allowing the right wing to take over social media and turn it into a hellhole.” Actual free speech, however, means not suing companies who are reporting on what happens on your platform. So, besides asking the court to throw out the case, CCDH filed a motion to strike the lawsuit under California’s anti-SLAPP statute.
SLAPP stands for “strategic lawsuit against public participation.” A SLAPP lawsuit goes after a defendant for exercising their free speech rights about a matter of public concern. These lawsuits aren’t necessarily brought because the plaintiff expects to prevail but instead to grind the other side down or frighten them enough into not speaking out. Thirty-three states have some version of an anti-SLAPP law to protect defendants in this situation.
California’s anti-SLAPP law allows the defendant to file a motion to strike the lawsuit, which stops all the other processes in a case, like discovery. SLAPP lawsuits are often deployed with the hope of bilking a defendant dry with outrageous discovery demands and multiple motions. Putting everything on hold while the court addresses the anti-SLAPP motion protects the defendant from those costs. Further, the law also allows defendants who prevail to recover attorney fees and costs.
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CCDH’s motion argued that obtaining data and writing about X was a “quintessential newsgathering activity” in furtherance of CCDH’s speech. Being sued for doing that is a classic SLAPP. CCDH also highlighted how X’s breach of contract claim was weak sauce. The claim for breach was based on X saying that using a scraping tool violated the site’s terms of service. CCDH argued that X was using the terms of service, which every user is required to sign, to prohibit and penalize First Amendment-protected research and reporting.
Terms of service provisions are contracts of adhesion, where one party has no real authority to negotiate any terms but must sign the contract to purchase something or use a service. Anyone who uses any social media site has signed one. So has anyone with a cellphone plan, car lease, or credit card. So, X’s argument was that anyone using Twitter agreed to terms prohibiting them from newsgathering or critical reporting. CCDH took aim at a favorite phrase of Musk’s — that X is “the modern public square.” If it is indeed the public square, X shouldn’t have power over newsgathering and speech it doesn’t like. The modern public square shouldn’t be something you can only use if you sign your rights away or make a promise not to make a billionaire sad.
On March 25, Judge Charles Breyer granted CCDH’s motions and threw out the case. His decision leaves no doubt as to his views on X’s lawsuit:
“Sometimes it is unclear what is driving a litigation, and only by reading between the lines of a complaint can one attempt to surmise a plaintiff's true purpose. Other times, a complaint is so unabashedly and vociferously about one thing that there can be no mistaking that purpose. This case represents the latter circumstance. This case is about punishing the Defendants for their speech.”
Ultimately, what X accused CCDH of sounds a lot more like a defamation claim than a breach of contract. Breach of contract cases focus on the words in a contract and detail how the other party violated a term. Defamation claims focus on what a defendant said or wrote and alleges that the defendant lied. But, as CCDH noted in their motion, X didn’t assert a defamation claim because to do so, it would have to prove that CCDH said something knowingly false. X would also have to allow discovery as to the truth of the content on the platform, which Musk definitely doesn’t want.
The judge saw right through this too, saying that X was trying “to be spared the burdens of pleading a defamation claim, while bemoaning the harm to its reputation, and seeking punishing damages” based on assertions that CCDH harmed its reputation. He also explained that a plaintiff can’t sidestep anti-SLAPP laws by saying they’re bringing a breach of contract claim but are focusing on punishing a defendant for speech.
And, if there was any question that X was seeking to punish parties for speaking ill of X or Musk, Judge Breyer noted that X has filed a separate lawsuit against Media Matters because Media Matters also reported on ads appearing next to neo-Nazi content on the site. Breyer even called out Musk’s post about that lawsuit, where Musk said that suing Media Matters for their reporting somehow furthered X’s goal of protecting free speech.
Additionally, the absurd amount of damages X alleged — at least tens of millions of dollars of lost ad revenue — proved to be its downfall. Damages that result from a breach of contract claim would be limited to whatever minor harm CCDH could have caused by improperly scraping X. But the demand for tens of millions of dollars was because CCDH’s reports allegedly caused advertisers to stop advertising. That supposed harm results from CCDH’s speech, not any technology it used to collect data on the site.
X tried to fix this by asking if it could file an amended complaint alleging more damages from CCDH’s scraping, now saying implementing anti-scraping measures was done “at great expense from engineering time in tens of thousands, if not over a hundred thousand dollars, to deal with this security risk that was identified via this incident.” In refusing this request, Judge Breyer wrote that X’s arguments did not make very much sense, as the tool CCDH used only looked at public posts. CCDH didn’t access any private user information, X servers, or anything else that might be seen as a security issue.
Breyer ended his opinion as strong as it started. He said that X’s motivation in bringing the case was evident: “X Corp. has brought this case in order to punish CCDH for CCDH publications that criticized X Corp.— and perhaps in order to dissuade others who might wish to engage in such criticism.” With that, Breyer granted the motion to dismiss and the anti-SLAPP motion to strike.
Musk’s equally silly lawsuit against Media Matters grinds on
This is a pretty pleasing outcome, but the lawsuit against Media Matters may not be as smooth sailing. That lawsuit was filed in the Northern District of Texas even though neither Media Matters nor X is located in Texas.
What is located in the Fort Worth division of that district, though, is a bench stuffed with hard-right judges. The case has been assigned to Reed O’Connor, who has made multiple attempts to overturn all of Obamacare and ruled the Indian Child Welfare Act was unconstitutional. Most recently, he blocked all preventative health efforts in the Affordable Care Act, agreeing with conservatives that employers having to have health coverage cover PrEP, the HIV prevention drug, made them “complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.”
Additionally, conservative attorneys general are stepping in to help Musk out on the Media Matters case. Both Texas Attorney General Ken Paxton and Missouri Attorney General Andrew Bailey opened investigations into Media Matters shortly after X filed its lawsuit against them late last year. And then, nearly immediately after Breyer handed X this loss, Bailey went on X to say he is suing Media Matters over “their solicitation of donations to bully advertisers into pulling out of X, the last platform dedicated to free speech in America.”
It’s probably too much to hope that O’Connor will smack down X’s claims as thoroughly as Breyer did, but for now, we can all just revel in Musk’s complete, humiliating loss this time around.
That’s it for today
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We’ll be back with more tomorrow. Until then, have a great weekend.
CCDH: X provides ads appearing next to neo-Nazi content on the site.
MEDIA MATTERS: X provides ads appearing next to neo-Nazi content on the site.
MUSK: the media are biased against the Conservative agenda.
Excellent!
This was the reason for Twitter acquisition; to stifle speech (of the Blue type).