Elon Musk: Always A Douche

[Jacob]

A few questions for anyone who might know:

What sort of costs would MM need to adequately defend themselves?

Would they need more money to leverage the discovery process more effectively?

How much money do we assume MM has available to defend themselves?

Is this the kind of thing where someone highly competent would defend MM pro-bono or at reduced cost because bloodying Musk's nose is good publicity?

[The Minsky Moment]

If all they want to do is file a motion to kick the case on jurisdiction, costs will be low. 

If they want to leverage discovery and push the case to summary judgment, you get in the $1 million + territory.

I don't know how much cash MM has on hand, but this is the sort of thing you can fundraise off of.  And they have a decent chance of finding counsel willing to discount rates or provide pro bono support.

[Sheilbh]

A few questions for anyone who might know:

What sort of costs would MM need to adequately defend themselves?

It depends a lot on the cases they're facing. Hopefully they're weak and easy to dismiss (though that is still likely to have costs). Not sure how much that would cost.

Having said that not sure how much they'd have had to do this before. From what I understand they're more of a media commentary style site, they're not doing investigations.

Would they need more money to leverage the discovery process more effectively?

Yes, a lot more expensive.

The other side is disclosure goes both ways and this is where it can be a real resource sink. Not sure in the US but in the UK it's not helped by judges having quite high expectations of record keeping and process in journalism, which is not always the case.

How much money do we assume MM has available to defend themselves?

Not sure - their revenue seems to be just a little bit under $20 million.

Is this the kind of thing where someone highly competent would defend MM pro-bono or at reduced cost because bloodying Musk's nose is good publicity?

As Minsky says they might get discounts or pro bono help. They'll also definitely use it for a fundraising/subscription campaign.

[Syt]

[Syt]

Question since this popped up in my reddit feed:



So, can Musx take his case to Texas?

[The Minsky Moment]

Two of the lawyers for X worked closely with Paxton, so this is an inside job.

Re the TOS, X will argue that this is not a TOS issue, although doing so is risky for obvious reasons.  One of many problems that this lawsuit may cause the company.

Venue is likely to be heavily litigated early.  Federal court gets you out of most anti-SLAPP laws but the fed courts also tend to enforce jurisdictional limitations.

[Sheilbh]

I don't know, but the terms of service are just the T&Cs of how users can use Twitter. I don't think the case is that Media Matters breached their T&Cs, it's more defamation etc. No idea if that's true or enough to get the case in Texas, mind.

And practically speaking there's a fair few open questions around online terms of service - especially in the open web context.

[Syt]

Just a minor foot note:



He also said "Prosperity is ahead for Argentina."

[crazy canuck]

You think his lawyers warned him, or they were just blinded by the dollar signs in their eyes?

I think he's using lawyers to force a non-profit media company to spend their money on litigation, even if it's just defending or getting things kicked out. That's what the powerful do if they have legal avenues available (and is part of the in-built inequality of law).

It is different, but I think tech billionaires look at Thiel and Gawker as a great example/model.

As I understand it neither the UK not the EU have yet developed the anti-SLAPP legislation that now exists in many US States and Canadian Provinces.

The notion that someone like Musk has legal avenues available to him is not really viable in jurisdictions that have effective anti-Slapp provisions.

You think his lawyers warned him, or they were just blinded by the dollar signs in their eyes?

We know from other situations that musk has a habit of thinking he is smarter than his lawyers, and does not realize his error until it is too late.

One of the best examples of that is when he was forced to buy Twitter in the first place. 

[Sheilbh]

As I understand it neither the UK not the EU have yet developed the anti-SLAPP legislation that now exists in many US States and Canadian Provinces.

The UK does now, but it is very new. Legislation passed in October - we'll see on the impact.

And in fairness there is a balance to be struck. I think privacy law, which has been entirely developed by the courts, in England has gone way too far and is really impacting free speech and good reporting. I am equally aware that 90% of that was developed by precedents from clever claims against some really outrageous, egregious behaviour by the press.

The notion that someone like Musk has legal avenues available to him is not really viable in jurisdictions that have effective anti-Slapp provisions.

If you are rich to afford lawyers and hold a grudge you can make life incredibly difficult for media companies - or especially small ones. Even if you are just having to get lots of cases kicked out that is (sometimes) taking money, it (sometimes) has a cash flow impact and it takes a toll on time and energy. It's not an issue for the bit, traditional established media companies.

But on of the big trends in the US in recent years, which is great, has been the growth of non-profit, purpose-driven smaller media companies. Media Matters is one, but there's Pro Publica, Texas Tribune etc -they're fantastic and a big new feature of what's going on in the media in the US (and increasingly a model we're seeing here too, particularly in the local press). But they won't have the resources, or in house legal of traditional media. It's not a "thermonuclear lawsuit" but if Musk decides to harass - particularly if he starts looking to fund other, perhaps better claims - that's going to be a drain that they're not use to and built to withstand.

[The Minsky Moment]

I don't know, but the terms of service are just the T&Cs of how users can use Twitter. I don't think the case is that Media Matters breached their T&Cs, it's more defamation etc. No idea if that's true or enough to get the case in Texas, mind.

And practically speaking there's a fair few open questions around online terms of service - especially in the open web context.

Exactly so and that is why X's apparent position that this is not a TOS dispute is so dicey.  Usually, tech platforms argue for an expansive interpretation of the TOS because they write them to be self-serving.  Very rarely do you see them arguing that their TOS should not apply to a dispute involving a user of the service that is based on their activities on the service.

It's just another example indicating that this lawsuit was brought in haste without thinking through the strategic implications.

[OttoVonBismarck]

My personal guess is Media Matters is not worried about the lawsuit, and likely was hoping it would be filed. This isn't really a media outlet--David Brock started this group as an explicit left of center "investigations" group, intending to point out bias in right wing media, or right wing bias in mainstream media. They are explicitly partisan warriors, and while they aren't a huge organization, they have ties to a number of left leaning billionaires. My suspicion is whatever their current budget they have a bankroll lined up to do this litigation. I could be wrong, but just looking at their history and what they typically do they openly seek confrontation.

It should be noted that before Musk became a public member of the far right, he used tactics like this to squelch criticisms of his firms. For example one investigator who found some quality control issues with Tesla back in 2015, was immediately attacked as a "plant" by Tesla's competitors. It largely worked in taking the focus off of Tesla's quality control issues.

I think Musk probably thinks this can still work today. Unfortunately for Musk, I think he fundamentally misunderstands what the PR implications are of publicly becoming a right wing activist, I think he fundamentally misunderstands the business he is in with his ownership of Twitter (advertising), and I think he fundamentally misunderstands how these things are going to work in tandem to make a suit like this hurt him even more than the original reporting did.

This is going to keep the "advertisements get served up next to Nazi posts" narrative in the media indefinitely. Because Musk is seen as far right activist, a large portion of the public will simply never be sympathetic to whatever narrative he is pushing--back when he wasn't seen as political and he was just trying to brush off criticism of Tesla, that element wasn't at play. Because he is now seen as a partisan culture warrior, he can't just make negative things like this "go away" because all of his actions will be seen as political by at least half the country (and far more than half of the executives of the companies that are pulling advertising on Twitter.)

Because of the nature of Tesla's business and Musk's behavior, he had no "great" options in response to the Media Matters report--but  his best option was likely to not respond at all, have Twitter's puppet CEO put out a statement that the company is working to make sure controversial posts like that don't appear next to sponsored ads, and quietly work behind the scenes to reassure advertisers. There is still damage that would have been done--but what he's done here is likely guarantee that the companies that pulled advertising are never coming back, because he is going to continue to keep the association between his brand and Nazism as front page news.

[The Minsky Moment]

One of the dynamics in a commercial litigation, or any litigation where a business entity is a party, is the search to find insiders in the adversary camp that may be sympathetic witnesses.  Finding one or two good ones can help boost a case.  In this case, X is likely to be a target rich environment.  In taking discovery, defendants will have no problem finding insiders - recent former employees and maybe some current ones - willing to talk negatively about the company's current oversight.

[Syt]

In Germany, the Hohenzollern family was running up to 120 law suits at a time against historians and journalists a few years ago, targeting those who critically reviewed the family history in regards to a possible restitution of Hohenzollern properties that were expropriated by the Soviets/GDR. See e.g. this EU study:

https://commission.europa.eu/system/files/2022-04/slapp_comparative_study_0.pdf

NGOs offer pro-bono legal assistance to journalists and bloggers facing legal charges or suits. 242
(DE, HU, IT). A specific legal aid fund was established in DE by an NGO to support court defence of
journalists and researchers writing about the role of the Hohenzollern family under the
Nationalsozialismus (DE). The fund was created in reaction to the repeated lawsuits by Georg
Friedrich Prinz of Preußen to prevent investigation of his family's ownership matters (DE).

See also FragDenStaat: https://fragdenstaat.de/aktionen/prinzenfonds/

Google Translate, because I'm lazy:

The Hohenzollern Prince Georg Friedrich of Prussia is taking action against unwanted reporting with warnings and lawsuits - among other things in connection with research into the role of the Hohenzollerns in National Socialism and its impact on their demands for compensation. We are setting up an aid fund for affected researchers and journalists.

Georg Friedrich Prince of Prussia , according to his own statements "Head of the House of Hohenzollern", has in recent years warned and sued dozens of people from science, journalism and politics for statements about the past and present of the Hohenzollerns.

In doing so, he attempts, sometimes successfully (out of court), to influence the formation of public opinion in the interpretation of the work of the Hohenzollerns and to combat unwanted reporting. The director of the Center for Contemporary History Research, Martin Sabrow, sees the actions of the Lord of Prussia as an " attack on the freedom of science" .

Why is the prince complaining?
Among other things, Mr. von Preußen has sued historians in connection with their research into the Nazi past of the House of Hohenzollern and has had statements warned in the context of the complicated dispute over the Hohenzollerns' claim due to expropriations after the end of National Socialism. For example, Mr. von Preußen also wanted to have FragDenStaat banned by the court from writing that he was sometimes taking criminal action against critical reporting.

In the proceedings before the regional court, the lawyer for the Lord of Prussia said that "hundreds of articles" were being written about the Hohenzollerns and that he "couldn't keep up with the lawsuits." While Mr. von Prussia apparently allows himself to have even harmless statements banned in court and is sometimes successful in doing so before his favorite court, the Berlin Regional Court, many of the people from science and research he attacks often shy away from consistently defending their position , including in the subsequent instances - also taking into account possible costs.

In our opinion, scientific discourse and the formation of public opinion suffer from this. A recent study involving the Otto Brenner Foundation and the Society for Freedom Rights on preventative advocacy strategies towards the media has shown that such an approach can have a method .

But the freedom of science and research must also be defended in court. Those affected must have the opportunity to take full legal action, regardless of their personal financial possibilities. In the worst case scenario, a climate is created in which critical researchers and (science) journalists are so intimidated by the so-called "scissors in the head" that they deviate from their views or even do so whenever a complaint is made by the supposedly overpowering opposing side Do not start, continue or make public your research in the future.

[Zoupa]