Judge to X lawyer: “I’m trying to figure out in my mind how that’s possibly true.”
It looks like Elon Musk may lose X’s lawsuit against hate speech researchers who encouraged a major brand boycott after flagging ads appearing next to extremist content on X, the social media site formerly known as Twitter.
X is trying to argue that the Center for Countering Digital Hate (CCDH) violated the site’s terms of service and illegally accessed non-public data to conduct its reporting, allegedly posing a security risk for X. The boycott, X alleged, cost the company tens of millions of dollars by spooking advertisers, while X contends that the CCDH’s reporting is misleading and ads are rarely served on extremist content.
But at a hearing Thursday, US district judge Charles Breyer told the CCDH that he would consider dismissing X’s lawsuit, repeatedly appearing to mock X’s decision to file it in the first place.
Seemingly skeptical of X’s entire argument, Breyer appeared particularly focused on how X intended to prove that the CCDH could have known that its reporting would trigger such substantial financial losses, as the lawsuit hinges on whether the alleged damages were “foreseeable,” NPR reported.
X’s lawyer, Jon Hawk, argued that when the CCDH joined Twitter in 2019, the group agreed to terms of service that noted those terms could change. So when Musk purchased Twitter and updated rules to reinstate accounts spreading hate speech, the CCDH should have been able to foresee those changes in terms and therefore anticipate that any reporting on spikes in hate speech would cause financial losses.Advertisement
According to CNN, this is where Breyer became frustrated, telling Hawk, “I’m trying to figure out in my mind how that’s possibly true, because I don’t think it is.”
“What you have to tell me is, why is it foreseeable?” Breyer said. “That they should have understood that, at the time they entered the terms of service, that Twitter would then change its policy and allow this type of material to be disseminated?
“That, of course, reduces foreseeability to one of the most vapid extensions of law I’ve ever heard,” Breyer added. “‘Oh, what’s foreseeable is that things can change, and therefore, if there’s a change, it’s ‘foreseeable.’ I mean, that argument is truly remarkable.”
According to NPR, Breyer suggested that X was trying to “shoehorn” its legal theory by using language from a breach of contract claim, when what the company actually appeared to be alleging was defamation.
“You could’ve brought a defamation case; you didn’t bring a defamation case,” Breyer said. “And that’s significant.”
Breyer directly noted that one reason why X might not bring a defamation suit was if the CCDH’s reporting was accurate, NPR reported.
CCDH’s CEO and founder, Imran Ahmed, provided a statement to Ars, confirming that the group is “very pleased with how yesterday’s argument went, including many of the questions and comments from the court.”
“We remain confident in the strength of our arguments for dismissal,” Ahmed said.
X dinged for “silencing people”
Filing an anti-SLAPP motion used to discourage frivolous lawsuits, the CCDH called Musk a “thin-skinned tyrant” and moved to dismiss the lawsuit last November, claiming there was a “fundamental flaw” in X’s case:
At its core, X Corp.’s grievance is not that the CCDH gathered public data in violation of obscure (and largely imagined) contract terms, but that they criticized X Corp. (forcefully) to the public. In essence, X Corp. seeks to dodge the requirements that the First Amendment imposes on defamation claims by asserting other claims that are no less entwined with the CCDH’s speech.
At the hearing, the CCDH’s lawyer, John Quinn, said that X’s claim that the CCDH gained unauthorized access to non-public data was “implausible” and that advertisers made their own decisions when pausing spending on X, Reuters reported.
Last year, a former Twitter ad exec, AJ Brown, suggested that the advertiser boycott was attributable to Musk deciding to “limit [the] reach” of offensive content rather than remove it. This “made it challenging to convince brands” that X “was safe for ads,” Brown said. And last November, Musk’s tweet endorsing an antisemitic conspiracy theory drew a rebuke from the White House, causing even more brands, including IBM, to pull out.
“CCDH used a tool that runs searches for certain people to see what public tweets are being put out, and then they commented on it,” Quinn told the court. “X didn’t have any issues with that until advertisers reacted to the content of the report.”Advertisement
Ahmed told Ars that “X Corp. really had no response to our assertion that Musk changed X’s policies to reinstate white supremacists, neo-Nazis, misogynists, and other propagators of hateful and toxic content.” Instead, X sought to blame the CCDH for causing losses just for scrutinizing that content, Ahmed said.
“We were particularly surprised by the implication in X Corp.’s argument” that “it thinks that CCDH should somehow be on the hook for paying for X Corp. to help neo-Nazis, white supremacists, and misogynists escape scrutiny of their reprehensible posts,” Ahmed said.
If the court entertained X’s lawsuit, Quinn argued, it might give X “the power to say, ‘anybody who uses our search function and looks at tweets, if you use an automated tool in any way, we can come after you, sue you, drag you into court,'” and that “runs straight into speech principles.” (More than 100 researchers have already said they stopped studying X, fearing Musk might sue them.)
Hawk tried to insist that the lawsuit was not about “some of the content” that the CCDH may not want to see on X but about “the security of data.” Breyer seemed unconvinced.
“You put that in terms of safety, and I’ve got to tell you, I guess you can use that word, but I can’t think of anything basically more antithetical to the First Amendment than this process of silencing people from publicly disseminated information once it’s been published,” Breyer said.
There’s no telling when Breyer might issue his ruling, but the CCDH now anticipates that the law will come down on its side.
“We remain hopeful that this bullying and improper case will be brought to a swift and decisive end when the court grants our motion to dismiss,” Ahmed said.
