Musk tried to ‘punish†critics, judge rules, in tossing a lawsuit

A federal judge in California on Monday threw out the entirety of a lawsuit by Elon Muskâ€s X against the nonprofit Center for Countering Digital Hate (CCDH), ruling that the lawsuit was an attempt to silence Xâ€s critics.

“X Corp.â€s motivation in bringing this case is evident,â€� U.S. District Judge Charles R. Breyer wrote in a 52-page ruling. “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.â€�

X sued the Washington, D.C.-based nonprofit in July 2023 after it published a report alleging that the social network was profiting from hate after Musk reinstated scores of previously suspended accounts of “neo-Nazis, white supremacists, misogynists and spreaders of dangerous conspiracy theories.� X alleged that the group improperly gained access to data about X and that its claims influenced advertisers to spend less money on the site, costing X tens of millions of dollars in lost revenue.

The ruling is a win for research groups that study online platforms and a blow to Muskâ€s campaign to portray Xâ€s loss of advertisers as a vast conspiracy against him. Under Musk, X has also sued the nonprofit Media Matters for America in federal court in Texas, and it threatened to sue the Anti-Defamation League before reaching a détente with that group.

Musk “certainly doesnâ€t seem to champion free-speech rights when the speaker is being critical of him,â€� said David Greene, senior staff attorney and civil liberties director at the digital rights nonprofit Electronic Frontier Foundation.

Breyer dismissed the suit under Californiaâ€s strict laws against what are known as SLAPPs, or strategic lawsuits against public participation. The judge did not mince words in his finding that the suit lacked merit and appeared to be a blatant attempt to intimidate researchers and critics.

“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 plaintiffâ€s true purpose,â€� Breyer wrote. “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.â€�

Under Californiaâ€s anti-SLAPP statute, defendants are entitled to have their legal fees paid by the plaintiffs who filed the frivolous suit.

Imran Ahmed, CCDHâ€s CEO, cheered Breyerâ€s ruling in a phone interview Monday, calling it a “complete victoryâ€� that should “emboldenâ€� public-interest researchers everywhere to continue their work.

“It is quite clear that this was an unconstitutional attempt to shut down the free speech of critics of Elon Musk, by Elon Musk, a self-proclaimed ‘free-speech absolutist,â€â€� Ahmed said. “Itâ€s an enormous relief to the team at CCDH that we now can continue our mission to hold these companies accountable.â€�

Jonathan Hawk, an attorney representing X in the case, declined to comment. Musk could not be reached for comment, and a request for comment from X was met with an autoreply.

Alejandra Caraballo, a clinical instructor at Harvard Law Schoolâ€s Cyberlaw Clinic, said the ruling was “probably the best decision that could have come out of this case with a view toward actually protecting free speech.â€� “We donâ€t want the wealthy, the powerful and others to silence dissent through litigation they know is frivolous just because they have the resources,â€� Caraballo said.

While Musk has billed himself as a “free-speech absolutist,â€� he has on several occasions barred journalists and activists from the site for posting information that he said violated its rules. Caraballo experienced that last week when her X account was banned after she amplified the identity of anonymous comic artist StoneToss, whom some people describe as a neo-Nazi. (After this article published, the administrator for the StoneToss website said the artist disavows the neo-Nazi label.) The platform cracked down on mentions of the userâ€s supposed identity and changed the terms of service to prohibit naming the person behind an anonymous account. (Caraballoâ€s account has since been reinstated.)

CCDH was one of several research groups that found a rise in hate speech on the site after Musk bought it in October 2022. As some advertisers paused spending on X, Musk attempted to control the damage, claiming in November 2022 that hate speech had fallen “below our prior norms.�

On Nov. 10, 2022, CCDH published what it called a “fact-check� of those claims. The group said data from an analytics tool for advertisers called Brandwatch showed that the use of some particularly vile slurs had spiked dramatically.

In February 2023, another CCDH report titled “Toxic Twitter� found that a group of 10 extremist accounts whose bans were lifted by Musk was generating billions of views with their tweets and likely bringing in millions in ad revenue. The implication was that Musk was profiting from the speech of people such as neo-Nazi Andrew Anglin, self-described “misogynist influencer� Andrew Tate and leading vaccine conspiracy theorists.

X cited both reports, along with a previous report that CCDH published before Muskâ€s purchase of Twitter, in its lawsuit. The company said the group violated its terms of service, improperly used the Brandwatch advertising tool and violated the Computer Fraud and Abuse Actâ€s provision against unauthorized access to machines and data.

But while X accused CCDH of harming its reputation, it did not bring a legal claim of defamation, which would have required it to prove that the reports were untrue. CCDHâ€s lawyers suggested that might be because X didnâ€t want to open itself to a legal discovery process that would generate evidence about “the truth about the content on its platform.â€�

Breyer, the judge, took note of that choice, writing in his ruling that X wanted to “have it both ways — to be spared the burdens of pleading a defamation claim, while bemoaning the harm to its reputation, and seeking punishing damages based on reputational harm.�

In a similar case, X sued the liberal media watchdog group Media Matters in Texas in November 2023 after it published a report showing that the site appeared to be running ads alongside blatantly pro-Nazi posts. Multiple businesses, including IBM, Apple and Disney, subsequently suspended their advertising on the platform.

“The court made it clear that Elon Musk is using lawsuits to silence critics and would-be critics,� said Angelo Carusone, president of Media Matters, noting that Musk had “enlisted several Republican state [attorneys general] to initiate harassing investigations against us.�

“Today was a good day for free speech, but there is a long road ahead before it can be marked safe from Muskâ€s abuse,â€� Carusone said.

Greene said he hopes the high-profile ruling against Musk will discourage others from trying to use frivolous lawsuits as a tool for intimidation and silencing critics. But he said itâ€s unlikely the CCDH ruling will have any bearing on the pending lawsuit in Texas against Media Matters because “the claims are different,â€� noting that Musk sued for defamation in that case.

Texas has become a favored venue for Musk as he has battled lawsuits in other jurisdictions. He moved Teslaâ€s corporate headquarters from California to Austin in 2021, and he moved the incorporation of SpaceX to Texas from Delaware in February, after a Delaware judge voided his $56 billion pay package for Tesla. The day Musk filed his lawsuit against Media Matters, Texas Attorney General Ken Paxton (R) launched a fraud investigation into the nonprofit, subpoenaing materials related to its reporting.

Joseph Menn contributed to this report.