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. (AP Photo/Kirsty Wigglesworth, Pool, File)
Elon Musk’s lawsuit against the Center for Countering Digital Hate (CCDH), complaining of an advertiser exodus following the group’s reports that X was “overwhelmed with harmful content,” was nothing more than an effort to punish free speech, a federal judge who happens to be the younger brother of retired Supreme Court Justice Stephen Breyer ruled on Monday when dismissing the case.
Senior U.S. District Judge Charles Breyer, sitting on the U.S. District Court for the Northern District of California, said at the start of his order that Musk’s case did not fall into the category of a lawsuit where the purpose of the litigation was unclear. Instead, it was plainly “about punishing” free speech that X’s owner didn’t like.
“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,” Breyer wrote. “This case represents the latter circumstance.”
The lawsuit, filed in July and amended in August to add the Stichting European Climate Foundation (ECF), brought breach of contract, tort, and Computer Fraud and Abuse Act (CFAA) claims.
Musk claimed that “activist organizations masquerading as research agencies” had orchestrated “a scare campaign to drive away advertisers from the X platform,” harming the company financially.
“CCDH intentionally and unlawfully accessed data it sought regarding the X platform in two ways. CCDH US, as a registered user of X, scraped data from X’s platform in violation of the express terms of its agreement with X Corp,” the lawsuit alleged. “CCDH also conspired with Defendant Stichting European Climate Foundation (‘ECF’) — in knowing and intentional violation of its contractual obligations, and knowing of CCDH’s intended use of the X Corp. data — to improperly share login credentials with CCDH US to a secured database that CCDH then accessed, and retrieved information from, on multiple occasions without authorization.”
Those claims were wiped away on Monday, however. In the case of the ECF defendant, the judge ruled Musk’s suit was dismissed for failing to state a claim and for lack of personal jurisdiction. In CCDH’s case, Breyer went much further in ruling against the X suit.
He granted a CCDH motion to strike for running afoul of California anti-SLAPP, the state’s response to strategic lawsuits against public participation. Under § 425.16, a “cause of action against a person arising from any act of that person 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 shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”
Breyer, indeed, found the lawsuit was not likely to succeed — and he seemed to think that another Musk lawsuit before a different judge was similarly geared towards “punishing” free speech. In a footnote, he criticized the “thermonuclear lawsuit” Musk filed against Media Matters over “reporting on ads from major brands appearing next to neo-Nazi content.”
Breyer commented that Musk, a free speech absolutist, “remarkably” called the Media Matters lawsuit an effort to “protect[] free speech.”
“If there is any question about the ‘punishing’ part, X Corp. filed a similar suit, not before this Court, in November of 2023 against Media Matters, another non-profit media watchdog, for ‘reporting on ads from major brands appearing next to neo-Nazi content.’ Prior to doing so, Musk threatened a ‘thermonuclear lawsuit’ against Media Matters,” the footnote said. “Musk’s post also claimed, remarkably, that the lawsuit was furthering X Corp.’s efforts ‘to protect[] free speech.””
The “motivation” behind the lawsuit against CCDH, Breyer continued, “is 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,” the judge said, adding in yet another footnote, this time citing a survey of 167 “academics and researchers” that found “over 100 studies about X Corp. have been diverted, stalled, or canceled, with over half of those interviewed citing a fear of being sued by X Corp. over their findings or data.”
The judge also responded directly to the now dismissed complaint’s claims about data “scraping” in violation of X’s terms of service. He called it “problematic” that the lawsuit “alleged a breach of contract but seeks reputation damages.”
“Of course, the main problem with X Corp.’s theory is that the damages alleged for the breach of contract claim all spring from CCDH’s speech in the Toxic Twitter report, and not its scraping of the X platform,” the judge wrote. “One way we know that this is true is that if CCDH had scraped the X platform and never spoken, there would be no damages.”
Since the state tort claims “fail[ed] to allege a theory of causation that makes sense, and seek impermissible publication damages” — and out of concern that X “has a dilatory motive” in seeking to amend its state breach of contract claims — the judge tossed out those claims pursuant to his “anti-SLAPP analysis.” Breyer then dismissed the CFAA claim for “failure to adequately allege loss.”
Read the order here.
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