Over the weekend, Elon Musk made headlines with his threat of a “thermonuclear lawsuit” against Media Matters. The anticipation built up, but when the court opened, the lawsuit did not materialize as expected. Instead, an 18-page complaint emerged, and it fell far short of the promised “thermonuclear” impact.
One possible reason for the delay in filing the complaint was evident in the absence of Musk’s usual go-to law firms in the signature block. Perhaps finding lawyers willing to associate themselves with this particular case took longer than expected. It appears that even Alex Spiro of Quinn Emanuel, who has been Musk’s trusted outside counsel in various matters, decided not to lend his support to this one.
To provide context, Media Matters published an article challenging the claim made by X CEO Linda Yaccarino that ads from major advertisers were protected from appearing alongside the site’s increasingly white supremacist content. Media Matters decided to test this claim by creating a feed that would showcase such content and observe if X displayed ads from IBM.
And the result was clear – X did indeed showcase the ads!
Elon Musk himself admitted to it in his “thermonuclear” tweet. So, what kind of lawsuit could survive such an admission? Not a strong one, certainly!
But here’s the crux of the matter – X had promised its advertisers protection from their ads being displayed alongside toxic content, and yet, that promise failed. It doesn’t matter if only a minority of X’s users follow white nationalists; what matters is that X assured its advertisers their ads would not appear next to such content, and then it happened.
Another point worth noting is the choice of Texas as the jurisdiction for this case. Media Matters is accused of using the platform improperly, so the case should ideally be in California, as per the platform’s Terms of Service. However, the move to Texas suggests the lawsuit might be an attempt to circumvent California’s anti-SLAPP law. If that is the case, this lawsuit is more “slappy” than substantial.
Furthermore, the argument that Media Matters “created” these pairings by photoshopping ads is baseless. X produced these results itself, making it a genuine issue. No one is alleging that an IBM ad would show up next to a Nazi post in a typical user’s feed. The concern is that X’s promised safeguards failed for the growing number of users who use the platform as an RSS feed of extremist content.
Looking at the causes of action, they fall short. “Interference with Contract” requires a willful and intentional act causing a breach, but it’s unclear if simply deciding not to advertise falls under this category. “Business Disparagement” necessitates a false statement, which remains unsubstantiated. Lastly, “Interference with Prospective Economic Advantage” requires an independent tortious act by the defendant, and no false claim has been established.
It’s worth mentioning Musk’s recent controversial comment endorsing the Great Replacement theory. When the complaint identifies advertisers who withdrew due to concerns about antisemitic content, it becomes important to consider this additional factor.
In the end, Musk’s “thermonuclear” lawsuit falls flat. X could have addressed the issue by acknowledging it as a rare occurrence and assuring advertisers that steps would be taken to prevent such incidents in the future. However, the explicit claims made to advertisers that this wouldn’t happen again have understandably disconcerted them.
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