Why Elon Musk Sued Media Matters in a North Texas Court, and What That Means

In this life, there are three universal truths: ginger is nature’s Zofran, Vince Vaughn is a terrible comedic actor and Elon Musk was born with a silver foot in his mouth.

In case you missed it: the vainglorious billionaire posted on X, “You have said the actual truth” in response to a post accusing Jewish people of “pushing the exact kind of dialectical hatred against whites that they claim to want people to stop using against them.” In the face of this, the news media correctly pointed out that Musk endorsed a flagrantly antisemitic tweet.

And even though Musk reportedly went on a damage control press tour in Israel with a meeting with Israeli President Isaac Herzog, Media Matters ran a story on Nov. 16 under the headline, “As Musk endorses antisemitic conspiracy theory, X has been placing ads for Apple, Bravo, IBM, Oracle, and Xfinity next to pro-Nazi content.” Juxtapositions of this sort have led companies such as NBCUniversal and IBM to stop advertising on X, the barren sepulcher of cool where Twitter once stood, the Associated Press reports.

Ever the eggshell-skinned manchild, Musk filed a defamation lawsuit against Media Matters’ parent company, Media Matters for America, in the Northern District of Texas’s Fort Worth Division court. Texas Attorney General Ken Paxton expressed fervent support of Musk’s crusade against Media Matters, announcing in a Nov. 20 press release that his office would be opening an investigation into the media company for what he alleges to be a possible violation of the Deceptive Trade Practices Act.

The press release called the Media Matters a “radical anti-free speech organization,” which is like Sam Kinison calling Al Pacino’s character in Scarface a coke addict, but we digress. So anyway, here are some details about the lawsuit given in FAQ format.

Is this lawsuit frivolous?
Yes. In fact, it’s quite obvious this lawsuit was an impotent tantrum on Musk’s part. But that’s not to say the court will agree, or at least find some issues of material fact.

The complaint alleges that Media Matters undertook many steps to manipulate its ad experience, to the point where it “created these pairings in secrecy” (emphasis not ours.) This, the complaint says, was done to harm X Corp’s profitability.

Musk’s legal team alleges that Media Matters committed tortious interferences with a contract and prospective economic advantage, and “business disparagement.”

Now, here’s where the legal mumbo jumbo starts. Business disparagement is a thing, and as the Texas Supreme Court said in Forbes, Inc. v. Granada Biosciences, Inc. (2003), the plaintiff in a business disparagement claim must prove the following: “(1) the defendant published false and disparaging information about it, (2) with malice, (3) without privilege, (4) that resulted in special damages to the plaintiff.”

The current complaint doesn’t point to any express falsehoods — it simply argues that the perception the story invited was misleading and false.

The dispositive statements in the story include, “We recently found ads for Apple, Bravo, Oracle, Xfinity, and IBM next to posts that tout Hitler and his Nazi Party on X” and “During all of this Musk-induced chaos, corporate advertisements have also been appearing on pro-Hitler, Holocaust denial, white nationalist, pro-violence, and neo-Nazi accounts.”

These statements are no doubt disparaging, but on their face, none of them are false (unless one were to have a strict interpretation of the meaning of the word “found,” which Musk’s legal team seems to advance). Taking everything the complaint says as true, the only thing false about the story is the impression it makes.

But making a factually true statement that invites people to make untoward inferences, while potentially actionable, is not itself a tortious act. As the third element of business disparagement states, it requires malice.

Now, this is a high standard, and it doesn’t simply mean that the person saying the statement intended to scathe. “Actual malice” is a legal term of art that came to fruition in the 1964 Supreme Court decision New York Times v. Sullivan, and it basically means that the person who made the defamatory statement against a public figure either knew for certain that it was false or knew that was a considerable possibility and just said, “Eh, fuck it” and went full speed with publishing it.

That’s a high standard because the statement in question (or at least the impression it made) must be objectively and demonstrably false; even more than that, it’s hard to prove what somebody intended. That’s why internal text messages and emails are usually crucial to plaintiffs proving actual malice in news media libel lawsuits, and even then, they rarely rise to the level of incrimination of Fox News’ communications.

The reason actual malice imposes a cumbersome burden on the plaintiff is because the judiciary understands that we wouldn’t really have a free press if billionaires and politicians were able to use the arm of the state to punch news companies for saying things they don’t much care for. Most billionaires have the tact and charisma to cultivate press loyalty by making themselves essential to the journalistic process, but since Musk has neither tact nor charisma, this is what he’s resorting to.

Why was this lawsuit filed in Texas?
It was filed in the Northern District of Texas because Musk engaged in what is called “forum shopping.” Even though X Corp. is a California-based company incorporated in Nevada, Media Matters For America is a Washington, D.C.-based nonprofit, and Eric Hananoki (the writer of the article) is a citizen of Maryland, this was a strategic move to get this case before a court that they think will be more likely to administer a more favorable outcome. The two judges for the Northern District’s Fort Worth Division are Reed O’Connor, a George W. Bush appointee, and Mark T. Pittman, a Donald Trump appointee.

Forum shopping of this nature is quite common, and part of the reason it happens so easily is because of the Supreme Court decision International Shoe Co. v. Washington (1945). Basically, in order to compel someone to answer to a lawsuit in a state they don’t live in, the plaintiff needs to prove that the defendant has what are called “minimum contacts” with the state. In other words, you need to have some contact with the state you’re getting sued in, and that contact needs to be relevant to the case at hand. That was the holding in International Shoe.

Media Matters has readers (presumably) in all 50 states, including Texas. As for whether its readership and patronage in Texas are enough to satisfy “minimum contacts” is a matter up to the court’s discretion. (We won’t go into it, but there’s something called the “Zippo test,” which is a sliding scale test named after some random-ass federal court case in Pennsylvania from 1997.)

What can Media Matters do?
It can file a motion to dismiss, a motion to transfer venue (basically saying that going to a different court is more fair, or the plaintiff did not abide the rules in picking this court), or other motions.

It can either file a motion of this sort or an answer to the complaint, giving the company an opportunity to present its version of the facts and an explanation why its entitled to a dismissal, an affirmative defense or the like. If and when Media Matters files an answer, it will need to deny every single allegation it intends to deny; otherwise, the court will accept the allegations as true, and Media Matters will not have any chance to contest them at any point in the litigation.

Texas is one of many states that has anti-SLAPP laws (“SLAPP” being an acronym for “strategic lawsuit against public participation”), the chief among these being the Texas Citizens Participation Act (TCPA), which makes dismissal of these lawsuits easier.

This would all be great for Media Matters had the Fifth Circuit not held in Klocke v. Watson (2019) that TCPA doesn’t apply to federal lawsuits based on diversity jurisdiction. This is one of those lawsuits, so Media Matters will not be able to obtain dismissal under TCPA.

What are First Amendment lawyers saying about this case?
Virtually nobody is asking this question, so the “F” in “FAQ” won’t be doing any lifting here, but it still needs to be answered.

People who are experts on First Amendment jurisprudence have, by and large, said something to the effect of, “Elon Musk is a petulant pissant who is using the legal system to retaliate against someone who said something he didn’t like, so him being a self-acclaimed champion of free speech is laughable.”

“Musk is also a fan of the theory that when he speaks, your criticism of him violates his rights,” said Ken White, a California-based First Amendment litigator who runs the Popehat blog. “Some might suggest that suing journalists to defend free speech sounds Orwellian and even unhinged. That’s because you haven’t considered that free speech also requires that journalists be prosecuted for fraud.” (Yes, Musk deadass said that Media Matters committed a crime in the commission of this alleged tort.)

Ari Cohn, a Chicago-based attorney who works as the “free speech counsel” for tech policy thinktank TechFreedom, posted on X regarding Paxton’s press release, “The absolute chutzpah of this creep calling anyone else ‘anti-free speech’ while launching a government investigation in retaliation for protected speech is gobsmacking.” (In case you’re not reading carefully: he’s saying that Media Matters’ story was protected by the First Amendment.)

The Foundation for Individual Rights and Expression (FIRE), a First Amendment advocacy organization, said in a press release, “[B]ecause it was filed in a north Texas jurisdiction with no substantial relationship to the parties or the case, it illustrates the need for a federal anti-SLAPP statute."

FIRE continued, “The Texas Attorney General’s initiation of an investigation into Media Matters’ protected expression is equally troubling. Ostensibly launched to protect the public against being ‘deceived,’ the Attorney General’s investigation springs from the dubious rationale that law enforcement, not the public, is best equipped to decide what’s true and what isn’t. That’s a deeply misguided presumption — and this investigation will result in the exact chilling effect on free speech it claims to deter.”