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Legal critics blast Elon Musk’s lawsuit against Media Matters as ‘weak’ and ‘bogus’

By Brian Fung, CNN

(CNN) — Some legal experts are panning Elon Musk’s lawsuit targeting the watchdog group Media Matters, saying the complaint filed Monday by X, the platform formerly known as Twitter, runs contrary to the First Amendment and could backfire wildly — if it progresses at all.

The lawsuit filed Monday accuses Media Matters of publishing a report that distorted the likelihood of ads appearing beside extremist content on X, a move the social media company says led major and influential advertisers to suspend their campaigns en masse. The company alleges that the group’s testing methodology was not representative of how real users experience the site and calls for a judge to force Media Matters to take down the analysis.

The case appears to be a “bogus” attempt to chill criticism in a way that “flatly contradicts basic First Amendment principles,” Ted Boutrous, a First Amendment attorney with years of experience dealing with the tech industry, told CNN. Boutrous added that the case could backfire for X in the discovery phase, as Media Matters could demand internal information that, if presented at trial, could prove embarrassing or highly damaging to the social media company.

The lawsuit also contains “fatal flaws” by conceding that ads did, in fact, appear beside extremist content, regardless of how Media Matters achieved that result, according to Steve Vladeck, a law professor at the University of Texas and a CNN contributor.

“The complaint admits that the thing Media Matters was making a big deal about actually happened,” Vladeck said. “Most companies wouldn’t want their ads running next to neo-Nazi content even once, and wouldn’t care about the exact percentage of users who were encountering such side-by-side placement.”

Contrary to the complaint, Media Matters “never claimed that what it found was typical of other users’ experience,” Vladeck added.

But even as some analysts mock the lawsuit as weak on the merits, they aren’t ruling out that it could move forward, thanks to X’s apparently deliberate decision to file in a Texas court seen as generally favorable to his cause.

A Texas forum

On Monday, X’s case was assigned to District Judge Mark Pittman, a Donald Trump appointee who was previously at the center of some of the nation’s biggest legal battles, including over gun rights and President Joe Biden’s blocked student loan forgiveness plan.

The big question, legal experts say, is whether Musk’s choice of venue — the US District Court for the Northern District of Texas — can help him overcome some of the lawsuit’s substantive shortcomings.

In accusing Media Matters of distorting the truth, X has alleged that the group misrepresented how likely it is for advertisers’ ads to show up against pro-Nazi or White supremacist content. According to Musk, Media Matters established a test account following extremist material and then refreshed the feed until X’s ad system displayed an ad for major brands.

X does not appear to dispute the fact that X has monetized extremist content or that the brands’ ads ran beside it.

“X does admit the ads were shown next to hateful content, but argues it was ‘rare,’” said Joan Donovan, a professor of journalism and emerging media studies at Boston University. “This is the same strategy employed by advertisers that got YouTube to demonetize political content in 2017.”

Akiva Cohen, a litigation attorney at Kamerman, Uncyk, Soniker & Klein in New York, pointed out that while Musk has historically relied on massive, white-shoe law firms in his other cases — such as his lawsuit with Twitter over the original acquisition and against former Twitter employees — in this situation, he is relying on a much smaller firm.

“All those big firms Elon usually uses? They probably went ‘f***, no, are you out of your mind? This is a baaaaad idea,’” Cohen said in a post on the X alternative BlueSky.

“He went with politically connected Texas lawyers, reflecting the extent to which people think that Texas courts are political actors, not legal actors,” Cohen added. “All three of the lawyers in that signature block have backgrounds with the Texas AG’s office or Solicitor General’s office.”

As it happens, immediately following Musk’s lawsuit on Monday, Texas Attorney General Ken Paxton announced a fraud investigation into Media Matters. And Missouri Attorney General Andrew Bailey posted on X that his office was doing the same, news to which Musk responded: “Great!”

Musk’s court pick reveals an attempt to “shore up a weak claim on the merits with a bench more likely to be sympathetic even to weak claims,” said Vladeck. “It’s one of those lawsuits that’s filed more for symbolism than for substance.”

Media Matters’ response

In a statement Monday evening, Media Matters President Angelo Carusone vowed to defend the group against the suit.

“This is a frivolous lawsuit meant to bully X’s critics into silence,” Carusone said. “Media Matters stands behind its reporting and looks forward to winning in court.”

Some legal experts suggested that Media Matters’ first course of action may be to try to move the case out of the Texas federal court. X is headquartered in California, while Media Matters is based in Washington, D.C. The Texas court reflects an “absence of any logical connection to the dispute,” Vladeck said.

If the case isn’t transferred out of Texas, the apparent deliberate choice of court could work in X’s favor by preventing Media Matters from leveraging state laws in California and the District of Columbia that are designed to limit litigation intended to suppress criticism. These so-called “anti-SLAPP” laws do not apply in the federal appeals court that oversees Texas, said Ken White, a First Amendment lawyer based in Los Angeles.

“X filed this in federal court in Texas to avoid application of an anti-SLAPP statute,” White said on BlueSky, adding: “X’s purpose is to harass and abuse and maximize the cost of litigation, and anti-SLAPP statutes interfere with that aim.”

Even if Musk can somehow convince a court to look skeptically at Media Matters’ methodology, it does not prove that Media Matters’ report was directly responsible for the advertiser revolt, said Nora Benavidez, senior counsel at the civil rights group Free Press. So far, none of the brands that have suspended advertising on X have directly cited the Media Matters analysis as the reason for their decision.

“Musk and his lawyers seek to isolate Media Matters’ investigation as the sole reason major advertisers have joined the exodus from X. But these major brands are not naive,” Benavidez told CNN. “They have not only seen their ads placed next to repulsive content, but also witnessed Musk’s own abhorrent online behavior, including amplifying antisemitic posts by other bigots and bullies on the platform.”

Brands “have every right to exercise their own free speech rights when deciding how to spend their ad dollars,” she added.

– CNN’s Oliver Darcy and Jon Passantino contributed to this report

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