Center for Countering Digital Hate Says Musk Deserved Getting Anti-Slapped
We told you many months ago about Elon Musk suing the Center for Countering Digital Hate because he doesn’t like that (c)(3)’s advocacy against hate speech on digital platforms. A lot of advertisers shy away from X because of hate speech. So when Musk filed suit asserting some ridiculous contract theory based on the shrink wrapping, we told you he would get anti-slapped and that is exactly what happened. Always undeterred, Musk filed a notice of appeal and is now before the Ninth Circuit. His Opening Brief spends a lot of ink and paper asserting that the complaint “plausibly alleges” various breaches and one federal law violation. And that this case has nothing to do with CCDH’s campaign against hate speech. Or even how Musk is getting richer by it. Musk, the brief asserts, entered into a contract with CCDH when CCDH subscribed to the platform formerly known as Twitter. CCDH breached that contract by using and sharing “scraped” data for non-bargained for uses. Simple as that.
CCDH’s Answer Brief disagrees and it’s a good thing CCDH has a war chest, or access to skilled pro bono, because Musk is not shy about paying top law firms to SLAPP people or groups. That’s exactly why anti-slapp statutes exist. To help Civil Society defend against “strategic litigation against public participation” without going bankrupt. The District Court dismissed the original complaint, concluding that Musk just wants CCDH to STFU. Here is part of the Introduction to the Answer Brief:
The rise of hate speech and misinformation in public discourse, especially on the Internet, is one of the greatest threats to democracy today. Defendants-Appellees Center for Countering Digital Hate, Inc. (“CCDH US”) and Center for Countering Digital Hate Ltd. UK (“CCDH UK,” collectively, “CCDH”) are non-profit organizations that were formed to combat this threat after their founder’s colleague was murdered by a white supremacist who was radicalized online. CCDH advances its mission through the research and publication of reports and articles about whether companies are meeting their responsibility to stop the spread of false and dangerous ideas. CCDH’s speech is relied on by consumers, advertisers, and the broader public to help them decide what social media platforms to use, how to advertise, and where to spend their time and money.
Plaintiff-Appellant X Corp. is a multibillion-dollar private corporation that is owned by Elon Musk, the world’s richest man. X Corp. runs the popular social media platform “X,” previously known as “Twitter.” Since its acquisition by Mr. Musk, X Corp. has increasingly failed to regulate hate speech and misinformation, becoming a megaphone for false and dangerous statements that have real-world consequences, such as the recent anti-Muslim riots in the United Kingdom, and ongoing distrust in American elections.
X Corp.’s actions have been met with widespread reprobation. For example, Brazil recently suspended X after it refused to purge “anti-democratic, far-right voices in the wake of the January 2023 uprising in the capital, Brasília.” Media Matters, a non-profit media watchdog, has published reports showing how X allows advertisements to appear next to posts praising Adolf Hitler and neo-Nazis. And a coalition of some of the largest advertisers, the Global Alliance for Responsible Media, published content moderation standards that led some of its members to cease affiliation with X.
Although X Corp. has tried to convince the public that it is taking the proliferation of hate speech and misinformation seriously, those efforts have failed. Having lost in the marketplace of ideas, X Corp. has resorted to suing its critics to try to silence them. This case is a prime example of that strategy. CCDH published three reports that highlighted the presence of hate speech and disinformation on X, as well as X’s reinstatement of banned accounts that were pushing dangerous conspiracy theories. Those reports, according to X Corp., caused advertisers to pause spending, thereby resulting in the loss of “tens of millions of dollars” in revenue. Unable to persuade advertisers that Mr. Musk is right and CCDH is wrong, X Corp. filed this action.
The gravamen of X Corp.’s complaint is that CCDH’s speech has undermined the willingness of others to spend money on and associate with X, and that it should be permitted to recover its lost revenue as a result. But under the First Amendment, X Corp. cannot recover for that alleged harm because CCDH’s statements were not false, let alone made with actual malice. Recognizing as much, X Corp. attempted to reframe its case as not about the publication of CCDH’s reports, but instead about how CCDH obtained the data underlying those reports. First, X Corp. alleges that CCDH “scraped” user posts from X, in violation of X’s Terms of Use (“TOU”). Second, X Corp. claims that CCDH improperly accessed X data on non-party Brandwatch’s servers, using login credentials provided by Defendant-Appellee Stichting European Climate Foundation (“ECF”), and in so doing caused Brandwatch to breach its contractual obligations to X Corp.
As Judge Breyer recognized in dismissing X Corp.’s complaint, this sleight of hand doesn’t work. Fundamentally, “this case is about punishing the Defendants for their speech.” That means that X Corp. cannot recover alleged lost revenue resulting from the reactions of third parties because that would violate the First Amendment. It also means that X Corp.’s state law claims are subject to California’s anti-SLAPP statute, which allows CCDH to recover its fees to discourage these sorts of assaults on free speech.
darryll k. jones