A Legal Explainer: Does Elon Musk Have a Viable Case Against Media Matters?

By Dustin Rowles | Social Media | November 21, 2023 |

By Dustin Rowles | Social Media | November 21, 2023 |

As promised, Elon Musk has filed his “thermonuclear” lawsuit against Media Matters, claiming that the media watchdog group committed fraud that resulted in losses for X. Media Matters responded that Musk had filed a “frivolous lawsuit meant to bully X’s critics into silence. Media Matters stands behind its reporting and looks forward to winning in court.”

Legally speaking, what are the merits of the case? It’s a weak case. Unfortunately, it may not be the slam dunk that Media Matters hopes it might be. There are a number of elements here, but let’s focus on two: Did Media Matters lie or materially misrepresent the facts? And did those misrepresentations result in a loss for X, formerly Twitter?

Musk’s chief complaint can be boiled down to this paragraph:

Media Matters knowingly and maliciously manufactured side-by-side images depicting advertisers’ posts on X Corp.’s social media platform beside Neo-Nazi and white-nationalist fringe content and then portrayed these manufactured images as if they were what typical X users experience on the platform. Media Matters designed both these images and its resulting media strategy to drive advertisers from the platform and destroy X Corp.

The complaint alleges that Media Matters lied in this article, where the headline read: “X has been placing ads for Apple, Bravo, IBM, Oracle, and Xfinity next to pro-Nazi content.”

In the text of the article, Media Matters wrote that “corporate advertisements have also been appearing on pro-Hitler, Holocaust denial, white nationalist, pro-violence, and neo-Nazi accounts … We recently found ads for Apple, Bravo, Oracle, Xfinity, and IBM next to posts that tout Hitler and his Nazi Party on X.” Media Matters then provided screenshots of the ads next to pro-Nazi content.

If a court were to apply a literal interpretation of a “lie” or “misrepresentation of the truth,” this would be an easy win for Media Matters. Nothing that Media Matters wrote is untrue. In fact, Elon Musk — on X — conceded that the screenshots were genuine and that pro-Hitler content had appeared next to corporate advertisements. As the kids say, “Where is the lie?”

However, Musk also argued that this was not a typical outcome — that it is rare for brand advertisements to show up alongside pro-Nazi content — and that Media Matters had manipulated the algorithm to produce these results and suggested to advertisers that it was a common occurrence.

The question, then, is: Did the Media Matters article actually suggest that pro-Nazi content typically showed alongside corporate ads, and did Media Matters manipulate the system to achieve that suggestion? Musk claims that “Media Matters resorted to endlessly scrolling and refreshing its unrepresentative, hand-selected feed, generating between 13 and 15 times more advertisements per hour than viewed by the average X user repeating this inauthentic activity until it finally received pages containing the result it wanted: controversial content next to X’s largest advertisers’ paid posts.”

It may be true that pro-Nazi content does not “typically” sit next to corporate ads, and it may also be true that Media Matters created the conditions favorable to the appearance of that ad. Still, it doesn’t mean that the ad did not display next to pro-Nazi content. In fact, it suggests that others who spend a lot of time on the platform and follow a lot of accounts associated with Nazi content will invariably see an ad for one of those major advertisers. They will definitely see ads for something, so even if Apple or Disney ads do not show up frequently alongside pro-Nazi content, some companies’ ads must. It is, therefore, reasonable for Disney or Apple to be concerned about their ads showing next to pro-Nazi content.

Moreover, it is a fact that hate speech is commonly found on X. Recent studies have shown that antisemitic hate speech has risen 900 percent, and Islamophobic hate speech has risen 400 percent in the last month alone. Whether or not an ad runs directly beside pro-Nazi content, it certainly appears on a platform where pro-Nazi content is common. A typical user does not have to spend more than five minutes on X to run across hate speech, and that is especially true if they click on a trending item, which is a major feature of the platform. Why would any major advertiser want to advertise on a social media platform where hate speech is common?

The facts and the law, thus, are clearly on Media Matters’ side. But, Elon Musk did some forum shopping, and despite the fact that neither Media Matters nor X are based in Northern Texas, Elon Musk filed the lawsuit there. He asked for a jury. If a Trump-appointed judge in Northern Texas — the same state where the corrupt Attorney General has just launched a probe into Media Matters — is willing to overlook the law and allow the case to go to the jury, then it’s up to 12 people to decide whether Media Matters committed fraud.

Last year, recall, a jury ruled in favor of Johnny Depp because Amber Heard wrote in an op-ed that she was a “public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out. […] I had the rare vantage point of seeing, in real-time, how institutions protect men accused of abuse.”

That’s it. Those two sentences are what cost Amber Heard $12 million. A jury found, based on those two sentences, that Heard had defamed Depp with actual malice and awarded him punitive damages. Juries are not always reasonable.

There’s still the matter of damages, and Elon Musk would have to prove that the various corporate advertisers paused their ad spending as a direct result of the Media Matters article. However, the Media Matters article was clearly just one factor among many, not least of which is the fact that Elon Musk himself endorsed and amplified a tweet promoting the Great Replacement Theory the day before Media Matters published the article. It was not the first antisemitic statement he has made on Twitter, either.

Indeed, Musk seems to have filed this lawsuit, in part, to hide the real reason that most advertisers are fleeing: Whether or not hate speech runs against ads, the social media platform is rife with it, and the owner has created conditions favorable to hate speech. Even before the Media Matters article, Twitter/X had lost over half of its advertising revenue by Musk’s own account.

Therefore, even if Media Matters did exactly as Elon Musk alleged — and they did not — it’s like blaming an orca for attacking the Titanic on its way down to the ocean floor. Elon Musk is not the captain of the ship. He is the iceberg.