Federal judge mocks Elon Musk’s X lawsuit targeting hate speech researchers

A high-profile lawsuit filed by Elon Musk’s X targeting hate speech researchers appeared to stumble on Thursday as a federal judge sounded a skeptical note on many of the lawsuit’s allegations, suggesting that the company formerly known as Twitter hasn’t done enough to establish its claims.

The judge in the case signaled he may toss out X’s claims but appeared undecided on whether to let the company amend and refile the suit.

The lawsuit by X against the Center for Countering Digital Hate (CCDH), a nonprofit watchdog group, has been viewed as a bellwether for third parties’ ability to study online platforms and to publish research holding them accountable. The case has raised questions about Musk’s claim to be a “free-speech absolutist” and also of his hopes that “even my worst critics remain on Twitter, because that is what free speech means.”

X has accused CCDH of violating the platform’s terms of service and of engaging in illegal hacking in response to research the group published criticizing X’s handling of pro-Nazi and other hateful content. X has also blamed CCDH’s reports, which showcase the prevalence of hate speech on the platform, for amplifying brand safety concerns and driving advertisers away from the site.

But on Thursday in a San Francisco federal court, Senior District Judge Charles Breyer repeatedly interrupted X’s attorney as he pointed out the company failed to clear a key legal threshold to assert damages and that it ignored an opportunity to bring a defamation case.

“You could have brought a defamation case; you didn’t bring a defamation case,” Breyer told X attorney Jonathan Hawk. “And that’s significant. That’s significant.”

The judge’s remarks highlighted perceived weaknesses of X’s complaint including an apparent failure to allege a breach of contract.

Elon Musk, owner of X, attends the Viva Technology conference at the Porte de Versailles exhibition centre in Paris, France, June 16, 2023. – Gonzalo Fuentes/Reuters

Breyer told Hawk that “in order for you to collect one dime” of the tens of millions of dollars in damages the company says it suffered from CCDH’s alleged terms of service violations, X must prove that CCDH could have foreseen that X’s terms of service would change to allow “neo-Nazi, white supremacist, misogynist and spreaders of dangerous conspiracy theories” back onto the site.

“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?”

Breyer added: “I’m trying to figure out in my mind how that’s possibly true, because I don’t think it is.”

Hawk replied that users agree to changes in X’s terms of service by continuing to use the platform after the terms change.

That, Breyer said, is “one of the most vapid extensions of law that I’ve ever heard…. ‘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, is truly remarkable.”

“That argument is not going to get [X] anywhere,” Breyer said to John Quinn, an attorney for CCDH.

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