Musk’s Media Matters misstep

Major advertisers have been fleeing X, the site formerly known as Twitter, after a series of antisemitic posts from the platform’s billionaire owner, Elon Musk. In response to a user stating that Jews “have been pushing the exact kind of dialectical hatred against whites that they claim to want people to stop using against them,” Musk responded that the user had “said the actual truth.”

That comment hardly stands alone. The Jewish outlet the Forward is keeping a running list of Musk’s troubling posts.

At around the same time, Media Matters, a liberal non-profit focused on “comprehensively monitoring, analyzing, and correcting conservative misinformation in the U.S. media,” released a report showing the posts of major advertising brands appearing alongside particularly odious content, such as neo-Nazi posts.

Musk reacted volcanically, stating that he would file a “thermonuclear lawsuit against Media Matters and ALL those who colluded in this fraudulent attack on our company.” He went on to say that the lawsuit would include the Media Matters “board, their donors, their network of dark money, all of them” and that “the discovery and depositions will be glorious to behold.”

The lawsuit was later filed in a federal district court in Fort Worth, Texas. The complaint is fifteen pages and bears the signatures of conservative Texas lawyers from small firms. Choosing these lawyers to bring such an important suit is odd, because in the past Musk has not had trouble retaining some of the nation’s most sophisticated counsel and firms. In the litigation over the Twitter acquisition, marquee firms like Skadden, Arps, Slate, Meagher & Flom and Quinn Emanuel Urquhart & Sullivan appeared on Musk’s behalf. (I once worked at Skadden, but not on any matter related to any party in this dispute.) 

A quick review of the websites for Musk’s new lawyers reveals no claims to expertise in defamation or First Amendment actions. The website for one firm lists expertise in regulatory matters and labor and employment law, an area entirely unrelated to the claim.

Ordinarily, one would expect this sort of litigation filing to bring an anti-SLAPP statute into play. These statutes exist to impose penalties for bringing suit simply to intimidate critics for making statements critical of some wealthy person or entity. States with these statutes recognize that a rich person should not be able to abuse the court system to impose costs on critics and intimidate others out of speaking freely. After all, even entirely meritless claims cost time and money to defend.

But anti-SLAPP statutes apply unevenly across the land. Writing on Threads, Ken White, a well-known First Amendment expert, explained that the suit was filed in a Texas federal court to evade “application of an anti-SLAPP statute.” In the Fifth Circuit, which oversees Texas, state anti-SLAPP statutes do not apply in federal court. In contrast, if X had filed suit in California, the state where its headquarters sit, the Ninth Circuit would have applied the state anti-SLAPP statute.

White explained that Texas was selected because “X’s purpose is to harass and abuse and maximize the cost of litigation, and anti-SLAPP statutes interfere with that aim.” He went on to describe the attorneys filing the litigation as “unethical shitbirds.”

Turning to the merits, X’s claim strikes me as weak. It opens by portraying the Media Matters reporting as a misrepresentation of the typical user experience. But the article does not find anything claiming to be a representative sample. Rather, it explicitly tests X CEO Linda Yaccarino’s claim that brands were now “protected from the risk of being next to” potentially toxic content.

Attempting to portray Media Matters as distinct from other users, the complaint contends that Media Matters bore responsibility for the content X displayed. As the complaint concedes, X allows all users to curate their own feeds by following particular accounts. Media Matters sought to keep track of vile speech and major advertisers. It constructed a feed following those accounts and then simply scrolled through and refreshed it. That feed produced advertiser content alongside offensive posts. X’s CEO’s claim that brands would not appear next to toxic content seems to be false.

Ultimately, the lawsuit appears to be another misstep by Musk. This thin-skinned retaliation undercuts any claim that X offers a home for free speech. The litigation will also struggle with showing that the Media Matters reporting actually caused advertisers to depart. After all, Musk’s recent round of antisemitic amplification was widely reported and condemned by the White House. The litigation seems much more likely to focus additional attention on Musk’s own statements — and the toxic accounts pushing hate speech and conspiracy theories on the site.

Benjamin Edwards is a law professor at the University of Nevada, Las Vegas.