Legal Critics Call Elon Musk’s Lawsuit Against Media Matters ‘Weak’ and ‘False’

CNN
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Some legal experts are denouncing Elon Musk’s lawsuit targeting the watchdog group Media Matters, saying the complaint filed Monday by X, the platform formerly known as Twitter, goes against the First Amendment and could backfire. them – if it progresses.

The complaint filed Monday accuses Media Matters of publishing a report that distorted the likelihood that ads would appear alongside extremist content on campaigns. The company says the group’s testing methodology was not representative of how real users perceive the site and is asking a judge to force Media Matters to overturn the analysis.

The case appears to be a “bogus” attempt to deter criticism in a way that “categorically contradicts the fundamental principles of the First Amendment,” Ted Boutrous, a First Amendment lawyer with years of experience in litigation, told CNN. technology industry. Boutrous added that the case could turn against X in the discovery phase because Media Matters could demand internal information that, if presented at trial, could prove embarrassing or very damaging to the social media company .

The lawsuit also contains “fatal flaws” in admitting that ads actually appeared alongside extremist content, regardless of how Media Matters arrived at that result, according to Steve Vladeck, a law professor at the University of Texas. Texas and CNN contributor.

“The complaint admits that what Media Matters was making a big deal about actually happened,” Vladeck said. “Most companies would not want their ads to be shown next to neo-Nazi content even once, and would not care about the exact percentage of users facing such side-by-side placement.”

Contrary to the complaint, Media Matters “never claimed that what it found was typical of other users’ experiences,” Vladeck added.

But even as some analysts deride the lawsuit as weak on its merits, they do not rule out that it could move forward, thanks to X’s apparently deliberate decision to go to a Texas court considered generally favorable to his cause.

On Monday, X’s case was assigned to District Judge Mark Pittman, a Donald Trump appointee who was previously at The country is at the center of some of the nation’s biggest legal battles, including over gun rights and President Joe Biden’s blocked student loan forgiveness plan.

The big question, legal experts say, is whether Musk’s choice — the U.S. District Court for the Northern District of Texas — can help him overcome some of the lawsuit’s substantial flaws.

In accusing Media Matters of distorting the truth, According to Musk, Media Matters created a test account following extremist content, then refreshed the feed until X’s ad system showed an ad for major brands.

X does not seem to dispute the fact that X monetized extremist content or that the brands’ advertisements were broadcast alongside it.

“X admits ads ran alongside hateful content, but says it was ‘rare,'” said Joanne Donovan, professor of journalism and emerging media studies at Boston University. “This is the same strategy employed by advertisers that caused YouTube to demonetize political content in 2017.”

Akiva Cohen, a trial lawyer at Kamerman, Uncyk, Soniker & Klein in New York, pointed out that while Musk has historically relied on huge white-shoe law firms in his other cases — like his lawsuit with Twitter regarding the initial acquisition and against former Twitter employees – in this situation he is relying on a much smaller company.

“All those big companies Elon usually uses? They probably said “fuck no, are you out of your mind?” It’s a baaaaad idea,” Cohen said in an article on alternative X BlueSky.

“He chose politically connected Texas lawyers, reflecting the extent to which people think Texas courts are political actors, not legal actors,” Cohen added. “All three attorneys listed in this signature block have experience with the Texas AG’s Office or the Solicitor General’s Office.”

As it happens, immediately after Musk’s trial on Monday, Texas Attorney General Ken Paxton announced a fraud investigation into Media Matters. And Missouri Attorney General Andrew Bailey posted on X that his office was doing the same, news to which Musk replied: “Great!”

Musk’s choice of court reveals an attempt to “consolidate a claim that is weak on the merits with a court that is more likely to be sympathetic to even weak claims,” ​​Vladeck said. “This is one of those lawsuits filed more for symbolism than substance.”

In a statement Monday evening, Media Matters President Angelo Carusone pledged to defend the group against the lawsuit.

“This is a frivolous lawsuit designed to intimidate critics of X into silence,” Carusone said. “Media Matters stands behind its reporting and looks forward to winning in court.” »

Some legal experts have suggested that Media Matters’ first course of action may be to try to get the case out of Texas federal court. X is headquartered in California, while Media Matters is based in Washington, DC. The Texas court reflects a “lack of any logical connection to the litigation,” Vladeck said.

If the case is not moved out of Texas, the court’s apparent deliberate choice could work in X’s favor by preventing Media Matters from taking advantage of California and District of Columbia state laws designed to limit litigation intended to repress criticism. These so-called “anti-SLAPP” laws do not apply in the federal appeals court that oversees Texas, said Ken White, a Los Angeles-based First Amendment attorney.

“X filed this complaint in a Texas federal court to avoid enforcement of an anti-SLAPP law,” White said on BlueSky, adding: “X’s goal is to harass and abuse and to maximize the cost of litigation, and anti-SLAPP laws interfere with that goal.”

Even if Musk somehow manages to convince a court to look skeptically at Media Matters’ methodology, that doesn’t prove that the Media Matters report is directly responsible for the advertiser revolt, Nora said Benavidez, senior attorney for the civil rights group Free Press. So far, none of the brands that have suspended advertising on X have directly cited the Media Matters analysis as the reason for their decision.

“Musc and his lawyers seek to isolate the Media Matters investigation as the sole reason that big advertisers joined the exodus from X. But these big brands are not naive,” Benavidez told CNN. “They not only saw their ads placed next to disgusting content, but also witnessed Musk’s abhorrent online behavior, including amplifying anti-Semitic messages from other bigots and bullies on the platform.”

Brands “have every right to exercise their own freedom of expression when deciding how to spend their advertising dollars,” she added.

– CNN’s Oliver Darcy and Jon Passantino contributed to this report