CA Court Dropkicks Elon Musk Trollsuit

For free speech!

Yesterday, a federal judge in California dismissed Twitter’s trollsuit against the non-profit Center for Countering Digital Hate (CCDH) for the tort of saying mean, true things about the company under Elon Musk’s leadership.*

The ruling was utterly scathing, striking the complaint under the state’s anti-SLAPP law and reading the company for filth.

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. This case represents the latter circumstance. This case is about punishing the Defendants for their speech.

Presumably there will be an appeal, followed by a few more rounds of briefing at the Ninth Circuit before this dumb turkey of a case is finally put out of its misery. But calling out the bad-faith nature of the complaint doesn’t spare the defendants the expense and stress of litigation.

For CCDH, the process itself is the punishment. And for Elon Musk, even a loss is a win, if he can ceremonially put one tiny non-profit through the wringer as a warning to all the others.

Countering Digital Hate Is Very Much NOT Elon Musk’s Bag, Baby

We’ve already devoted a lot of L&C pixels to this lawsuit and Musk’s multiple legal efforts to punish his critics. Briefly though, CCDH published three reports documenting the platform’s hate speech problem under Elon Musk.

The first, entitled “The Disinformation Dozen,” called out “twelve anti-vaxxers [who] are responsible for almost two-thirds of anti‑vaccine content circulating on social media platforms,” including Twitter. The second attacked Musk’s leadership of Twitter, purporting to document a spike in hate speech after he bought the company. And the third report, dubbed "Toxic Twitter," attempted to quantify the millions of dollars in ad revenue Twitter generated by allowing incendiary figures like sex-trafficker Andrew Tate and neo-Nazi Andrew Anglin back on the platform.

After CCDH documented “ads appearing next to toxic content from each of these reinstated accounts, showing how companies are putting their brand safety and consumer trust at risk by continuing to advertise on Twitter,” several major companies halted their ad spending on the platform.

Here in 2024, the idea that Twitter is a cesspool of hate speech is hardly groundbreaking. We’ve seen Musk promoting the great replacement theory and railing against minorities, along with the concomitant advertiser exodus and enshittification of the user experience. We’ve also watched him get on stage and tell the CEO of Disney to go fuck himself. As of yesterday, he was ruminating on head size in reply to a user who queried why Ashkenazi (read: white) Jews are so smart.

You knew we’d wind up at calipers eventually!

But in July of 2023, when the complaint was filed, all that had yet to "sink in" for most people. And so the company was able to claim with a more or less straight face that it was CCDH’s reporting that tanked its ad revenue, not the Mad King of the Sewer Rats flooding the zone with shit.

The CCDH reports relied on data from Brandwatch, a third-party vendor that licenses Twitter’s back-end data so companies can assess the impact of their ad buys. But CCDH was never a Brandwatch subscriber and instead used the log-in credentials of the European Climate Foundation (ECF), a philanthropic outlet headquartered in the Netherlands. And this “breach,” akin to borrowing someone’s Netflix password, formed the gravamen of Twitter’s case. CCDH published accurate information improperly gleaned, and publishing it caused “at least tens of millions of dollars” in “lost . . . advertising revenues and other costs.”

The company’s lawyers gussied it all up with allegations that CCDH “scraped” Twitter by collecting publicly available Nazi tweets, which somehow constituted breach of contract, interference with business relationship, and violation of the Computer Fraud and Abuse Act (CFAA).

But not defamation! Please do not accuse Twitter of trying to punish speech it doesn’t like by dint of a classic SLAPP suit. Don’t you fools know, Elon Musk is a warrior for free speech? He bought Twitter expressly to fight censorship and save the platform as a “societal imperative for a functioning democracy.”

GTFOH

It doesn’t take a lawyer to work out that this lawsuit was rancid garbage, filed to make CCDH pay for pointing out that Twitter is awash in hate speech and misinformation. The “damage” here, in the form of advertiser pullouts, didn’t arise from the “theft” of the data, but from its publication. And publication is SPEECH, something courts are pretty protective of in this country.

“Even accepting that the conduct that forms the specific wrongdoing in the state law claims is CCDH’s illegal access of X Corp. data, that conduct (scraping the X platform and accessing the Brandwatch data using ECF’s login credentials) is newsgathering—and claims based on newsgathering arise from protected activity,” Judge Charles Breyer wrote.

(Fun fact: Judge Breyer is the kid brother of Stephen Breyer, former Supreme Court justice and current fantasy writer.)

To avoid getting dinged for filing a SLAPP suit, Twitter made the bizarre argument that it would have sued CCDH anyway, even it had never published the three offending reports. This is patently ridiculous, since the “tens of millions of dollars” of harm that Twitter alleged resulted from the publication and subsequent advertiser boycott, not damage to its internal systems from being “scraped.”

“It is apparent to the Court that X Corp. wishes 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,” the court wrote. “For the purposes of the anti-SLAPP motion, what X Corp. calls its claims is not actually important.”

In its amended complaint, the company tried to paper over this gaping defect by claiming that it was damaged by having to expend “dozens, if not over a hundred personnel hours across disciplines” into discovering the “breach” of Brandwatch — which is a little much considering that CCDH cited Brandwatch as the source of the data in its reports. Alternatively, Twitter claimed harm on behalf of its Nazi users whose public posts were “scraped” and who lost the ability to delete the tweets and deny they were ever racist on main.

“[E]ven assuming that it is ‘very important’ to a user that he be able to amend or remove his pro-neo-Nazi tweets at some point after he has tweeted them … a user can have no expectation that a tweet that he has publicly disseminated will not be seen by the public before that user has a chance to amend or remove it,” the court scoffed.

Twitter also made a convoluted argument that CCDH and ECF induced Brandwatch to breach its contract with the social media company by failing to keep user data secure. But it wasn’t Brandwatch that breached — Brandwatch didn’t even know that CCDH had accessed its servers. If anyone breached, it was ECF — but that breach was against Brandwatch, not against Twitter.

“Any failure by Brandwatch to secure the Licensed Materials was a precondition to CCDH’s access,” Judge Breyer went on. “In addition, to the extent that X Corp. maintains that CCDH need not have done anything to impact Brandwatch’s behavior, then it is seeking to hold CCDH liable for breaching a contract to which it was not a party. That does not work either.”

And so the case was dismissed, with the court denying Twitter’s request to amend its complaint one more time and thereby subject CCDH to another round of pointless briefing and argument.

Guess Elon’s Learned His Lesson, Right?

Don’t count on it.

Or, to be more precise, he’s learned a lesson, and that lesson is to be more careful picking your judges. Since this case was filed, Musk’s proxies have followed up with suits against Media Matters for America (MMFA), which showed Nazi content appearing on Twitter next to ads, and the National Labor Relations Board (NLRB), which ruled that Space X violated the rights of employees who got fired for daring to circulate an open letter criticizing the CEO’s sexist behavior.

But those cases were filed in Texas, despite the fact that the defendants have zero connection to the state. Musk’s hope is to get a sympathetic hearing at the trial court and then in the Fifth Circuit from conservative jurists willing to overlook basic civil procedural niceties like jurisdiction and venue.

So far, he’s had mixed success.

The NLRB case got kicked to California, where the affected employees lived, worked, and filed their original administrative complaint. The Fifth Circuit dragged it back to Texas on a technicality, and one unnamed judge is currently blocking the mandate to send the case back to the trial judge who ordered the transfer in the first place. The hold is to allow Space X time to petition for en banc review by all the judges on the Fifth Circuit. All of which is procedurally nuts, and exactly why Musk keeps filing these clunkers in Texas. But considering the original panel was ready to boot Space X, it seems likelier than not that this case will be heading back to California before too long.

As for the MMFA case, Twitter was able to get itself in front of rabid conservative Judge Reed O’Connor by filing in the Fort Worth Division. So far, the company has put MMFA through the same wringer as CCDH: Complaint, Motion to Dismiss, Amended Complaint, Motion to Dismiss Amended Complaint. Rinse and repeat.

Presumably, the flimsiness of the venue and jurisdiction claims will eventually lead Judge O’Connor to toss this case, as well. But by then MMFA will have spent four months with the meter ticking on a squadron of expensive lawyers. And even if those lawyers are discounting their rates, or getting paid by a benefactor who actually does care about free speech, MMFA will have spent that time under the crucible of potentially ruinous litigation.

Once again, the process is the punishment. And, even if he loses, Musk will have succeeded in extracting serious punishment from tiny media and non-profit outlets who dare to cross him.

It’s almost like he doesn’t believe in free speech at all.

(* You cannot make me call it X. I’ll call it X when Musk stops deadnaming his own kid.)

[Dockets via Court Listener: X Corp v. CCDH / X Corp v. MMFA / Space X v. NLRB / In re Space X (Fifth Circuit)]