X's lawsuit against Media Matters may come down to intent, proof of damages, legal experts say

The company has asked the court to order the deletion of the original Media Matters article, that they pay X the cost of litigation, and to award X actual and consequential damages. That last part may be Musk's highest hurdle.

Published: November 27, 2023 11:00pm

Last week, X owner Elon Musk made good on his promise to go "thermonuclear" on Media Matters for America (MMFA) after the self-described watchdog group published an article asserting that the company was positioning ads for major companies next to pro-Nazi and otherwise hateful content.

Earlier this month, Media Matters for America published an article titled "As Musk endorses antisemitic conspiracy theory, X has been placing ads for Apple, Bravo, IBM, Oracle, and Xfinity next to pro-Nazi content." Included in the piece were screenshots of ads for X's major advertisers, including Apple, Comcast, Oracle, and IBM, next to explicitly pro-Nazi or otherwise offensive material.

X subsequently filed suit, alleging that MMFA deliberately manipulated its algorithms to bypass existing safeguards for advertisers to prevent such pairings and instead intentionally created the false impression that such occurrences were pervasive on the platform. MMFA omitted its manicured search methodology from the article.

Neither X nor MMFA have replied to a request for comment from Just the News as of press time.

The Claim: MMFA Gamed the Algorithm and Omitted its Methods to Mislead Advertisers and Readers

X claimed that MMFA used accounts that were more than 30 days old (and therefore not subject to new user ad filters) to curate selective feeds designed to pair ads for major firms next to objectionable content specifically for the purpose of creating negative imaging with which to scare off X's advertisers. To that end, MMFA allegedly followed a narrow group of accounts, which included profiles known to produce incendiary material and those belonging to major X advertisers. MMFA then allegedly refreshed its feeds over and over until producing the ad pairings it desired.

"Media Matters generated a specific, intended result that was not only inorganic, but exceedingly (and demonstrably) rare, all while taking specific steps to obscure this in its November 16, 2023 article," the suit claims. "The overall effect on advertisers and users was to create the false, misleading perception that these types of pairings were common, widespread, and alarming. Media Matters hid its manipulations through omissions, deceptive image selections, misrepresentations, and secrecy settings."

X's suit, filed in the United States District Court for the Northern District of Texas, Fort Worth Division, specifically accuses MMFA of interference with contract, business disparagement, and interference with prospective economic advantage. The company has asked the court to order the deletion of the original MMFA article, that MMFA pay the cost of litigation, and to award X actual and consequential damages.

X Doesn't Deny the Posts Were Authentic

"Media Matters did not find pairings that X passively allowed on the platform," the suit read. "Media Matters created these pairings in secrecy, to manufacture the harmful perception that X is at best an incompetent content moderator (a harmful accusation for any social media platform), or even worse that X was somehow indifferent or even encouraging Nazi and racist ideology."

MMFA's pinned post on X currently includes a statement from CEO Angelo Carusone posted prior to the filing of the suit, which says "[f]ar from the free speech advocate he claims to be, Musk is a bully who threatens meritless lawsuits in an attempt to silence reporting that he even confirmed is accurate. Musk admitted the ads at issue ran alongside the pro-Nazi content we identified. If he does sue us, we will win."

That the suit itself appears to acknowledge that the ads in question did indeed appear alongside the pro-Nazi content in the article – despite the alleged manipulation – will likely form a key point of defense for MMFA in court.

Los Angeles-based entertainment and First Amendment attorney Lincoln Bandlow told Just the News that, while the suit does not include defamation among its cause of actions, the suit will likely witness similar lines of argument to such legal proceedings.

"His main claim is that Media Matters is attempting to interfere with his existing business relations by making false statements about the content of X platforms," Bandlow said. "Those kinds of claims are typically subject to the same kinds of First Amendment defenses that come up in defamation suits."

Nevada-based First Amendment Attorney Marc Randazza shared that sentiment, telling Just the News that "At its simplest point of analysis… it's a defamation case. If something is true, it’s not defamatory. You can tell a lie with technical truths and that's what they’ve done here."

Randazza further opined that the technical veracity of MMFA's reporting would provide an avenue for a judge to dismiss the case were the judge inclined to rebuke Musk but that both the district and specific judge offered X a chance to make their broader case.

X's suit was assigned to U.S. District Judge Mark Pittman, a Trump appointee, CNN reported.

"If the judge was appointed by Biden, I guarantee you the judge will say 'well it's technically true' game over," Randazza said. "That district tends to be pretty reasonable... that’s definitely where I would have filed."

"Mark Pittman is a good judge," he added. "Lucky him [Musk]." Randazza did, however, opine that "I don't think he's gonna rubber stamp anything."

Intent Matters

Should X manage to proceed clear that hurdle, both attorneys pointed to the intent element of the company's claims as pivotal in making the argument.

Bandlow asserted that while MMFA was likely to argue free speech under the First Amendment, "[t]he response to that will be [that] 'knowingly, intentionally false speech is not protected by the First Amendment.'" To that point, the company's claims about MMFA's intent to create a false impression about the pervasive nature of advertising next to bigoted content will be a key factor.

"I think they’re trying to convey the message that that’s a natural phenomenon," he said with respect to the original MMFA article. X, he asserted, would therefore need to allege MMFA had "sort of a bad state of mind... [that they] knew these statements were false and [MMFA] made them specifically to interfere with business relations."

"You're trying to set up a result and then deceive viewers about what the result indicates. That's gonna be problematic," he added.

"Media Matters is trying to create this false impression that there are more economic benefits from so-called radicalism on Twitter [X] than there are out of a desire to harm Twitter [X] because it's now owned by someone who's not regime approved," Randazza stated. "It’s essentially like you're handing out copies of a newspaper to random people passing by and just waiting until you find somebody holding a pro-Hamas flag and saying 'wow look at how many pro-Hamas people read this publication.'"

Cause and Effect

Randazza told Just the News that he was "buying the theory that you can find liability there" but had doubts about damages claims stemming from advertisers leaving the platform over the article.

"Companies and organizations are dissociating themselves because they’ve been told which way the political winds are blowing and they had better do as they’re told," he said.

Senior Counsel at the civil rights group Free Press Nora Benavidez told CNN last week that the suit did not appear to conclusively prove a cause and effect relationship between the Media Matters article and advertiser withdrawal from the platform.

"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," she said. "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."

Musk, earlier this month, drew national flak for appearing to endorse claims that "Jewish communities have been pushing the exact kind of dialectical hatred against whites that they claim to want people to stop using against them." Musk's reply to that X post stated "you have said the actual truth."

Musk clarified that the claim was not applicable to all Jewish communities, but specifically highlighted the Anti-Defamation League, saying it "unjustly attacks the majority of the West, despite the majority of the West supporting the Jewish people and Israel. This is because they cannot, by their own tenets, criticize the minority groups who are their primary threat. It is not right and needs to stop."

Ben Whedon is an editor and reporter for Just the News. Follow him on X, formerly Twitter.

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