File – Elon Musk, owner of social media platform X, gestures during an event with Britain’s Prime Minister Rishi Sunak in London on Nov. 2, 2023. IBM has stopped advertising on X after a report said its ads were appearing alongside material praising Adolf Hitler and Nazis. (AP Photo/Kirsty Wigglesworth, Pool, File)
Over the weekend, Elon Musk talked big about a “thermonuclear lawsuit” to be filed against watchdog group Media Matters for America “the split second court opens on Monday.”
The legal community was immediately on hand to give Musk a quick roasting. One lawyer pointed out that there is no “split second” the court opens Monday, because electronic filings are possible at any time, as “This isn’t the 1930s.” The “First Amendment” social media account called out some irony, posting, “Protecting free speech by suing others for their speech lol ok.”
Former federal prosecutor Renato Mariotti dismissed the case’s merit entirely, denouncing it as “a PR stunt masquerading as a lawsuit.”
Musk’s purported grievance
Media Matters published a story on Nov. 16 saying that X “has been placing ads for major brands like Apple, Bravo (NBCUniversal), IBM, Oracle, and Xfinity (Comcast) next to content that touts Adolf Hitler and his Nazi Party.” The article also said that these ad placements happened after X CEO Linda Yaccarino said she had autonomy from Musk and promised that brands are “protected from the risk of being next to” hate-filled posts. Yaccarino claimed that while it may be tough to remove “lawful but awful” content from the platform, X’s content controls would go a long way to reducing risk to advertisers.
Media Matters said that Yaccarino’s assurances had been false and provided specific examples in which ads for Apple, Bravo, Oracle, Xfinity, and IBM were featured aside pro-Hitler and pro-Nazi posts.
Thermonuclear: not as hot as promised
Lawyers for X filed a 15-page complaint in federal court in Texas on Monday. The introductory paragraphs allege that “Media Matters knowingly and maliciously manufactured side-by-side images depicting advertisers’ posts on X Corp.’s social media platform beside Neo-Nazi and white-nationalist fringe content and then portrayed these manufactured images as if they were what typical X users experience on the platform.”
Sprinkled throughout the complaint are multiple allegations that Media Matters waged “a blatant smear campaign” on X and “falsely portrayed” the platform as risky for advertisers.
The complaint listed several “general allegations,” none of which alleged any specific legal violations. These were subtitled, “X is a Safe Platform for Users and Advertisers, Despite Media Matters’ Deceptions,” “Media Matters Systematically Manipulated the X User Experience to Defame X,” “To Defame X, Media Matters Hid Its Manipulation from Readers and Advertisers,” “Media Matters Caused Advertisers to Believe the Pairings Were Organic,” and “Media Matters Intended to Harm X’s Revenue Stream.”
However, despite the rather conspicuous references to defamation, the complaint never actually included any claim for defamation. Rather, X sued for interference with contract, business disparagement, and interference with prospective economic advantage. The plaintiff asks for unspecified damages and a court order that Media Matters take down the Nov. 16 article.
Given the complaint’s specific and repeated accusations that Media Matters was involved in a “deception,” and acted “to defame X,” the lack of a defamation allegation is a particularly conspicuous omission. A cognizable legal claim for defamation requires that a plaintiff plead the publication of a false statement of fact that caused financial harm. A public figure claiming to have been defamed must clear the additional hurdle of proving that the false statement was made with “actual malice” — or at least reckless disregard for the truth or falsity of the ultimately false statement of fact.
Likely, Musk’s complaint left out a cause of action for defamation simply because the facts do not support such a claim.
Despite Musk’s characterization that Media Matters used “manufactured images” to create a false impression of “what typical X users experience,” the publicly-available facts do not line up.
For starters, the Nov. 16 article did not generalize what “typical X users experience.” Rather, its exact words were, “Yaccarino has attempted to placate companies by claiming that ‘brands are now ‘protected from the risk of being next to’ potentially toxic content,” and “But that certainly isn’t the case for at least five major brands.” The article went on to show screenshots of ads adjacent to problematic content.
Similarly, despite Musk’s repeated accusations that Media Matters “manufactured images,” the complaint also admitted that the images actually appeared on X. Specifically, page 3 of the complaint said that Media Matters “manipulated the algorithms” to “bypass safeguards,” which caused the problematic placement of ads. The resulting pairings were therefore, “extraordinarily rare,” said the complaint.
X even described how Media Matters “manipulated the algorithms”:
Media Matters therefore resorted to endlessly scrolling and refreshing its unrepresentative, hand-selected feed, generating between 13 and 15 times more advertisements per hour than viewed by the average X user repeating this inauthentic activity until it finally received pages containing the result it wanted: controversial content next to X’s largest advertisers’ paid posts.
Further, Musk’s lawsuit against Media Matters, like Musks’s threatening post, may itself constitute defamation. The allegation that Media Matters “manufactured images” is at odds with the facts even as Musk himself has described them. Objectively, manipulating algorithms to prompt problematic ad placement is factually distinct from creating, editing, or manufacturing fake images.
In common parlance, “manufacturing” images refers to the creation of inauthentic images created such that the finished product does not accurately reflect what it purports to show. In other words, “rare” and “fake” are two different things entirely.
This brings us to the jurisdiction in which the X lawsuit was filed: The Northern District of Texas.
Everything SLAPPs bigger in Texas
A lawsuit against Media Matters for improper use of X’s platform would typically be expected in California, per X’s forum-selection clause in its terms of service. However, California’s anti-SLAPP statute was likely a significant deterrent.
California has a strong anti-SLAPP (strategic lawsuits against public participation) law which allows defamation defendants to challenge a lawsuit by proving that they are being sued for “any act … in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” Given that Media Matters could well have raised an argument that Musk’s lawsuit was intended to muzzle it about an issue of public interest, the anti-SLAPP statute would have presented a major risk to the case.
By contrast, Texas’ already weaker anti-SLAPP law is edging closer to becoming even less potent. Senate Bill 896, passed last spring by the state senate, would remove an automatic stay currently imposed under Texas law. Those opposed to the change argue that it would not only burden the court system but would also pose particular obstacles to unfettered journalism in the state.
Musk’s counsel table also has a particularly noteworthy connection with the Lone Star State. Former Texas Solicitor General Judd E. Stone II represents X in the filing.
Above the Law’s Joe Patrice surmised that perhaps the change in counsel from Musk’s usual firms was that X had trouble “finding lawyers willing to sign their names to this turkey.”
You can read the full filing here.
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