Elon Musk’s Lawsuit Against Media Matters Risks Sending Twitter Into a ‘Rapid Unscheduled Disassembly’

At this point in the year 2023, Elon Musk is as well known for his outlandish comments as his companies’ technology, but on Monday he did actually follow through with one of his braggadocious threats, filing a complaint against Media Matters that blamed their reporting for the advertisers fleeing The Platform Formerly Known as Twitter, rebranded as X. But like the “rapid unscheduled disassembly” that keeps plaguing his SpaceX rockets, Musk’s lawsuit creates some highly explosive problems for him that risk sending the Chief Twit crashing down to earth in a spectacular fashion.

The core of the dispute is a Media Matters article by Eric Hananoki, titled “As Musk endorses antisemitic conspiracy theory, X has been placing ads for Apple, Bravo, IBM, Oracle, and Xfinity next to pro-Nazi content,” detailing how ads on the social media platform from major corporations were ending up placed next to anti-Semitic and other hateful content.

The complaint filed by X Corp. doesn’t contest that this happened; instead it argues that by creating an account that was following other accounts posting hateful content and repeatedly refreshing the feed, Media Matters saw more ads than a typical user would due to this “inauthentic activity.”

That’s quite the admission: Don’t worry, big corporate advertisers — your ads might be placed next to Nazi content, but not very often!

Not an isolated example

One major weakness in Musk’s complaint is that Hananoki’s article, published on Nov. 17, is far from the only instance of advertising appearing with hateful content on the platform. Back in August, Media Matters found multiple corporate accounts being promoted on a known pro-Hitler account — even some who said they were not currently paying for ads. Several of the companies mentioned in the article paused their ads at that time, and X did end up suspending the pro-Hitler account, but only after the platform had allowed it to not just share hateful content but also take advantage of Musk’s new verified system to promote and monetize it:

Following the publication of this article, X suspended the openly pro-Hitler account. The suspension came only after the company verified the account; allowed it to repeatedly post antisemitic content; and monetized it by placing advertisements for major brands on the account. X’s monetization of the account also happened even though the company had reportedly acknowledged that the antisemitic account engaged in “violent speech.”

In the wake of Musk’s lawsuit against Media Matters, multiple other users were able to find examples of ads being placed next to hateful content, including ads for an official German government page being promoted under the hashtag #heilhitler. It doesn’t take a PhD in history to understand why the Germans might not appreciate that juxtaposition.

This is very much a self-created problem for Musk. Since he bought the company, he was the one who decided to allow scores of previously-banned users back on the platform, conduct mass layoffs in the departments responsible for moderation and safety, upend the verification system from one based on a user’s real life identity and prominence in their field to a paid subscription that amplified any content posted, regardless of its merit or offensiveness — not to mention his own proclivities for posting and amplifying anti-Semitic content himself.

The highly predictable result has been an increase in anti-Semitic and other hateful content on Twitter, and users voicing frustration that reporting even the most vile and threatening posts results in no corrective action.

Meanwhile, Musk’s hand-picked CEO Linda Yaccarino has been frantically attempting over the past few months to reassure advertisers that their brands are safe.

Welcome to the Streisand effect

Barbra Streisand infamously inspired the Streisand effect in 2003 when she sued a photographer for publishing an aerial photo of her Malibu, California home, citing privacy concerns, drawing significantly more attention to the photo than if she had never filed suit.

The Elon Musk flavor of the Streisand Effect was in full force within hours of his lawsuit being filed; besides incentivizing his critics to conduct their own searches for ads paired with hateful content, it’s also spawned a new wave of media coverage of Musk’s own problematic posts and comments, plus other examinations of hateful content on Twitter.

The practical reality of the challenges facing Twitter is that the company was in a precarious position before Musk bought it and his management decisions have worried advertisers, with multiple major companies reducing or ending advertising on the platform altogether.

Any increased media scrutiny of Twitter and Musk’s problems with hateful content is extremely unhelpful to Musk’s stated goal of reversing the company’s financial fortunes, and makes it more likely that advertisers will continue to quit paying for ads or decline to start in the first place. Each new headline about a major advertiser abandoning Twitter makes it more likely than other brands will consider following suit, creating the risk of a preference cascade.

And as weak as many legal observers have said Musk’s lawsuit against Media Matters is, there really isn’t any recognizable legal right to demand a company buy ads from you or sign new contracts to buy more ads, so he can’t run to court to stop this.

Be careful what you wish for

On that note of the inherent weaknesses of the complaint, Musk did something interesting in that two of the three counts against Media Matters are based in contract law, not defamation.

He’s deployed this tactic before, in another lawsuit against another liberal media watchdog group, as I wrote about in September. As Clay Calvert, professor emeritus of First Amendment and media law at the University of Florida’s Colleges of Law and Journalism, pointed out, this was a “strategic” move by Musk because it lets him claim “he’s not trying to squelch speech,” he’s just trying to complain about the defendant’s journalistic methodology, trying to make the case about “how the [defendant] gathered the information rather than what it said, even though if you read the complaint, he’s complaining about what they said.”

But the trouble is that even openly advocating for advertisers to pause ad buys is itself protected speech, and that is “like any boycott,” according to Calvert, “and that’s not illegal to say.”

“All they’re doing is encouraging people not to do business with [Twitter],” said the professor, who is also a Senior Fellow at the American Enterprise Institute. “That’s absolutely going to be protected” as long as the “underlying assertions” aren’t false.

Ah, but what about that other count in the complaint, for “business disparagement”? That’s a type of defamation claim, and the complaint accuses Media Matters of making “false” statements with “clear malice” in order to harm X Corp.

But as the Washington Post’s Greg Sargent wrote, Media Matters can arguably defend itself by using X Corp.’s own admissions in its complaint, that their reporting was not false, that they did show that Twitter’s own system allowed ads to be placed next to hateful content:

When I asked Angelo Carusone, the president of Media Matters for America, whether it’s misleading to say these images were “found,” he rejected the premise. He noted that Media Matters’s goal was to show that despite X’s assurances to the contrary, internal safeguards had failed to prevent those juxtapositions from actually happening.

“The point that we’ve been making is that the filters that they say exist are not working the way that they claim,” Carusone said of X. “Ads can and do run alongside extremist content.” That’s something those companies would surely want to know about — and avoid.

It’s likely to come down to what is revealed in discovery, the legal court procedures that allow both sides in litigation to conduct depositions and subpoena relevant documents and other evidence. And Musk has opened an extremely risky door by filing this lawsuit. As a privately-owned company, he would otherwise be able to have some reasonable expectation of keeping internal company communications private (enforced by nondisclosure agreements and other legal threats looming over any employees with access), but he won’t be able to shield such evidence from public eye if he wants this case to go forward.

The kind of discovery Media Matters would seek would likely include communications from advertisers expressing concerns over hateful content on Twitter and Musk’s own posts; information regarding what hateful content was being posted, amplified by verified accounts, reported, moderated, and monetized; internal communications regarding moderation decisions, and other matters that will shine a massive spotlight on what may already be irrecoverable damage to Twitter’s reputation.

The bigger they are, the harder they fall

Musk is in a unique position as the world’s richest man in that he can pay his lawyers absurd sums to pursue absurd litigation for an absurd length of time, but even his wealth is not without limit. Twitter’s stumbling finances have already dragged down the value of Tesla stock, and even the most ridiculously optimistic assessment of Musk’s lawsuit wouldn’t expect it to be resolved quickly. He’s looking at a minimum of a year or two of headlines about hateful content on his platform and advertisers fleeing, and whether more advertisers will flee as a result of the controversy, lather, rinse, repeat.

Also, while he’s paid for politically-connected Texas attorneys to file suit in a friendly Texas federal court, he’s far from guaranteed to be able to keep the case there.

Because neither of the parties is domiciled in Texas and the relevant events aren’t tied to the state, Media Matters has a decent chance of getting the case removed to another jurisdiction where the legal conditions are less hospitable to Musk’s tactics.

One key issue is whether Media Matters will be able to use an “anti-SLAPP” defense; it hasn’t been clearly established in federal court and the hope the federal judges in the Northern Texas District Court won’t allow it was undoubtedly part of Musk’s calculations in selecting that forum. These laws, as they’re adapted in multiple states, are designed to defend against a “strategic lawsuit against public participation” brought by a powerful and deep-pocketed litigant who seeks to silence someone’s speech about an “issue of public concern.”

“From what I’ve seen, this is the exact kind of case that anti-SLAPP statutes were made to deal with,” attorney and conservative political commentator David French told Mediaite in September. “Large, deep pocketed litigants have been known to try to use defamation litigation to squash small publications, for example, just through the cost of defending the case…this is the kind of case that would, I think, be extremely vulnerable to one of these anti-SLAPP motions.”

The way these statutes operate is to give defendants the right to “summary proceedings,” or expedited motions and hearings to settle the issue, and if they are successful, an award of attorneys fees and costs to be paid by the plaintiff who wrongfully tried to silence them.

Musk’s efforts to encourage more Twitter users to sign up for verified account subscriptions has thus far failed to balance the losses from fleeing advertisers, and he’s at risk of not just losing the lawsuit, but having to pay a substantial sum to Media Matters if it can successfully transfer the case and prevail on an anti-SLAPP motion.

But the tricky part about litigation is that it’s possible to win the battle in court but still lose the war. If Musk’s legal attack on Media Matters is successful in court two or three years down the road but his company has been the focus of countless negative media stories about the platform’s self-induced struggles with the hateful content he’s invited to flourish, he might not have any advertisers left to pay to keep the lights on.

Musk himself perhaps said it best in a tweet Tuesday, writing, “I am my own worst enemy by far. No need for others to dig my grave when I’m doing it so well myself lmao.”

Res ipsa loquitor.

This article has been updated to reflect the availability of anti-SLAPP defenses.

This is an opinion piece. The views expressed in this article are those of just the author.