Over the weekend, Elon Musk threatened a “thermonuclear lawsuit” against Media Matters “the split second court opens on Monday” despite electronic filing rendering business hours obsolete. As it happens, a lawsuit did not materialize the split second the court opened, though a complaint did emerge this evening and it is… far from thermonuclear.
Perhaps one reason it took so long to get the 18-page complaint to the docket could be found in the signature block, where Musk’s usual stable of go-to firms — Biglaw mainstays like Quinn Emanuel Urquhart & Sullivan and Morgan, Lewis & Bockius — don’t appear. Mayhaps the split second timeframe took a backseat to finding lawyers willing to sign their names to this turkey. Alex Spiro of Quinn Emanuel has more or less functioned as Musk’s outside counsel consigliere, representing the billionaire in everything from defamation actions to advising on Twitter layoffs, but he couldn’t be bothered to lend a “pending admission pro hac vice” to this one.
As a reminder, Media Matters published a story challenging X CEO Linda Yaccarino’s claim that ads from big ticket advertisers were “protected from the risk of being next to” the site’s increasingly white supremacist content. Media Matters decided to test the company’s claim by putting together a feed that would showcase a lot of this content and then seeing if X would populate the feed with IBM ads.
And boy howdy did it!
Moreover, Musk admitted that it did in his “thermonuclear” tweet. What possible lawsuit could survive such an admission? Not a good one!
Yes… but the claim that X made was that companies would be protected from ads showing up next to toxic content and then they did. Yes, most people on X don’t only follow white nationalists — that’s what Truth Social is for — but that’s irrelevant to the promise X made to its advertisers.
Who cares? X told its advertisers that IF there were toxic messages in a timeline, the company had safeguards that would protect their advertisers. Those safeguards didn’t work. It doesn’t matter if hypothetical wingnuts scroll 13 to 15 times more than the average user: X SAID THE ADS WOULDN’T SHOW UP THERE AND THEN THEY DID.
On that note, why is this case being brought in Texas? They’re alleging Media Matters used the platform improperly, so this case should be in California where the Terms of Service stipulate all actions must be brought. But California has an anti-SLAPP law and if this lawsuit is anything it’s… slappy.
No, dingus. If they’d photoshopped in ads they would have “created” the pairings. When X produced these results itself, it’s a find. No one is suggesting that an IBM ad was going to show up next to a Nazi post in your grandma’s feed (maybe, I don’t know your grandma I suppose) they’re saying that for the growing number of people using the platform like an RSS feed of Goebbels tribute blogs, X’s promised safeguards would fail.
I’m now genuinely wondering where Elon thinks Klan members shop. The idea that racists might also be consumers seems to really trip these guys up.
So what are the causes of action? First up, “Interference with Contract.” That requires a willful and intentional act that causes a breach. Not sure “we’re no longer going to advertise with you” constitutes a breach, at least not without more specific allegations about these deals. And there are some other comments Musk’s made recently that would certainly complicate the proximate cause requirement.
Next, “Business Disparagement,” which requires a false statement, which remains as elusive as the demand for a pickup that protects against archers.
Finally, “Interference with Prospective Economic Advantage,” basically tortious interference with prospective deals. But that requires an independent tortious act by the defendant and we still don’t have a false claim here.
At least someone prevailed upon Musk not to follow through on the dumbest of suggestions going around suggesting that this should be a fraud case… somehow. So there’s still room for the Missouri AG’s office to out stupid Elon.
Look, X says that these results are rare and Media Matters published this article the first week Musk took over the company, X would say as much and the advertisers would accept that and everyone would go on their merry way. But a lot’s happened since then including the company making explicit claims to advertisers that this wouldn’t happen. That’s what’s disconcerting to advertisers.
Well, that and Musk calling the Great Replacement theory “the actual truth” last week. When the complaint identifies advertisers that “all referenced antisemitic content in their withdrawal from X” it’s probably worth acknowledging this alternate cause.
Alas, the thermonuclear suit is here and it is a dud.
(Complaint on the next page)
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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