Elon Musk’s Supreme Court Endgame in Defamation Lawsuit

Late last year, Elon Musk sued nonprofit media watchdog Media Matters for America for defamation. That complaint, filed Nov. 20, alleges that an article by Media Matters showing that X had paired high-profile company ads with pro-Nazi content was somehow contrived, false. By suing, Musk aims to deter Media Matters and other organizations not just from publicizing X’s advertising practices but from fighting disinformation generally. Musk’s suit against Media Matters presents a genuine threat—to the watchdog, of course, but also to the First Amendment itself.

In legal parlance, Musk’s suit against MMFA is a textbook SLAPP suit—an intimidation lawsuit, brought not on merits but as a way to coerce critics into backing down by crushing them with frivolous and expensive civil litigation. Such suits are prohibited in many states for their chilling effects on speech. But there is no overarching federal anti-SLAPP law and no consensus among courts when it comes to applying individual states’ anti-SLAPP laws.

X filed its suit against Media Matters in a federal court friendly to right-wing ideologues and their political plays. The choice of venue is telling: X is based in Nevada, but MMFA is based in Washington—and the reporter who wrote the MMFA report, also named in the complaint, is based in Maryland. And Musk filed suit in the Northern District of Texas. Although changes announced this month by the federal judiciary may prevent such venue shopping in the future, X successfully bid for, and received, assignment of its case to a politically sympathetic judge.

Judge Reed O’Connor is notorious for his 2018 ruling attempting to overturn the Affordable Care Act, a decision tossed by the Supreme Court because O’Connor didn’t have jurisdiction to begin with. He was likewise overruled by that court after ruling that members of the military could defy orders surrounding COVID vaccination, with Justice Brett Kavanaugh writing that O’Connor had wrongly inserted himself “into the Navy’s chain of command.”

The home-court advantages don’t end there. Texas, along with Louisiana and Mississippi, falls under the jurisdiction of the far-right U.S. Court of Appeals for the 5^th Circuit, which has barred the application of Texas’ anti-SLAPP law in federal court. Of its 17 active judges, 12 are Republican appointees—and six of those 12 are Trump appointees.

Texas, to which Musk has relocated and is attempting to move as many of his business ventures as possible, has rolled out the red carpet for X Corporation. The day X filed its complaint, Texas Attorney General Ken Paxton announced a complementary fraud investigation into Media Matters. No wonder: X has hired three former Paxton lieutenants to handle the Media Matters case. Judd Stone II is the former state solicitor general, a former law clerk of Justice Antonin Scalia, and a former chief counsel for Sen. Ted Cruz.

In going after Media Matters, X means to weaponize the First Amendment against its critics. Musk has long reveled in alleging liberal-led censorship, even as he censors liberal accounts. Shortly after taking over Twitter, Musk gutted its content moderation infrastructure. He staged a circus by releasing pre-acquisition internal files and claiming that the U.S. government conspired to censor conservatives and, inter alia, cover up the crimes of Hunter Biden. It was all a conspiracy, he said, against “free speech.”

Even in Texas, Musk’s suit would founder before an impartial judge. X’s complaint blames Media Matters for advertisers—among them Apple, Comcast, NBC Universal, and IBM—ending relationships with X Corporation. Musk’s legal manipulations and bombastic attacks on the organization make clear that his intent is to punish Media Matters, driving up legal fees, and deter other journalists from reporting on X.

Even if the Northern District of Texas did have jurisdiction, that court should not find any merit in X’s suit. Whether unable to rebut the Media Matters report or unwilling to settle for citing facts in X’s favor, if any exist, the X complaint instead advances claims almost certain to be proved false.

X asserts that Media Matters “manufactured” white-nationalist content juxtaposed with advertisements and fraudulently portrayed it as X’s doing. Yet, critically, X’s complaint does not deny the heart of Media Matters’ assertion: Users on X could see top advertisers’ content next to hate speech. That’s a major problem for X: In defamation cases, the truth is an absolute defense in every federal court of appeals in the country save one. (The U.S. Court of Appeals for the 1^st Circuit alone has held that deploying truth maliciously may still be defamatory.)

X also fails to effectively allege malice. According to X’s legal team, it was just Media Matters, as a result of its “manipulation” of X’s algorithms—and, at most, one other X user, the complaint notes in a throwaway aside—that arrived at pairings of ads with racist, antisemitic, and other white nationalist content. The organization should instead have reported, X claims, on “real users” and “the actual, organic production of content and advertisement pairings.” The claim amounts to arguing that by using X the way a “real” user might, just more efficiently and at scale, and by failing to conform to X’s preferences and parrot its representations—that is, by reporting—Media Matters acted maliciously.

In X and Musk’s version of reality, they are the arbiters and defenders of free speech. Their media strategy—threatening reporters and critics, following with legal action—buttresses that narrative. It’s all part of a more ambitious agenda. The suit should fail, but if ever there were a federal court where it might succeed, it’s the Northern District of Texas. Likewise, the 5^th Circuit has proved to be a hyperpartisan venue, the most likely of all appellate courts to allow Musk’s SLAPP suit to proceed. If that’s what happens, corporate titans and right-wing blowhards will be emboldened to weaponize “free speech” against critics, eroding actual freedom of speech.

X’s gambit against Media Matters must be recognized as the cynical trick it is. Musk’s endgame is getting to the Supreme Court. There, X could fight to push First Amendment jurisprudence further rightward, aiding both corporations averse to critique and purveyors of disinformation, giving them new paths to avoiding accountability and retaliating against journalists and watchdogs. For these reasons, among many others, X’s Texas suit against D.C.’s Media Matters poses a profound threat to journalism, the Constitution, and democracy nationwide.