There is no doubt that Elon Musk is the visionary of our age, changing the world with technologies that none of us ever dreamed could exist. Musk has led with his chin in the world of shooting off his mouth, as any self-respecting cave-diving teacher will tell you. Though largely, Musk is on the defensive—ably assisted by the very well-funded Alex Spiro—constructing a ropey, knee-jerk defamation against the ADL, a non-profit committed to stamping out all forms of racism, including antisemitism. One of the great ironies is that Musk would try to win a defamation suit against a charity whose very name is committed to the opposite: the Anti-Defamation League. This would be a complete pretzel of a suit and one destined for failure.
Why? At first blush, sympathies do not lie with Musk. A vast for-profit (X) bullying a non-profit (ADL) in the courtroom is facially unattractive to a judge or jury. Also, causation would be a complete nightmare.
Musk’s main complaint is the ADL’s accusation that X—the platform formerly known as Twitter (Prince vibes?)—hasn’t done enough to tackle antisemitism on its platform and that this alone has caused advertising sales to drop 60 percent. Even if Musk could prove liability on a strained theory and hyperbolic “expert” evidence, where this case comes back to reality is in proving causation. There are a host of reasons for X’s advertising revenue dropping, including:
- The farce with the acquisition of Twitter and Musk trying to back out not once, but three times;
- The public and well-documented axing of swathes of staff;
- The culture shift in the company which led long-time staffers to leave;
- The messing around with blue check marks and premium subscriptions which the world at large sees as money grabbing by an already massively wealthy bloke;
- The rebranding of Twitter to X, which only makes sense if your favorite letter is X (see also: breaking what didn’t need fixing);
- The launch of Threads which made Mark Zuckerberg cool for once in his life as the Meta (META)-made anti-X managed to gain some counter-culture traction.
I could go on, but nowhere near the top-200 list does the ADL feature.
There is a difference between validly pointing out flaws and defamation, and there is a great deal that X should do to clean up its act on antisemitism. As one who fights that fight on a daily basis for the Association of Jewish Lawyers, I neither discount nor reject Musk’s personal protestations that he is not a hater of Jews. That said, his platform ostensibly is a safe haven for Jew hate, and this is where—if such a ridiculous case ever got past a motion to dismiss—the ADL would surely win.
Musk would have to prove the falsity of ADL’s statements and that they were made with actual malice. All the ADL would have to do is point to any musical artist who announces that they are going to Israel to perform and the vitriol that ensues is rampant. The ADL could also cite the rants of Kanye West and his welcome back to X as a prime example of forgiveness of a person who called for violence against Jews. The message that Musk gave there is that antisemitism is a lesser form of racism that can be tolerated if you are important enough to Musk’s worldview or bottom line.
A fascinating study from the University of Indiana by Gunther Jikeli and Katharina Soemer entitled “Conversations About Jews on Twitter: Recent Developments Since Elon Musk’s Takeover” notes that the Anti-Defamation League has been watching Twitter/X very closely and noted that there was a “61.3% increase in the volume of tweets (excluding retweets) referencing “Jews” or “Judaism” with an antisemitic sentiment in the two weeks following Musk’s Twitter takeover, compared to the two weeks prior.” Importantly, it highlights that after Musk took the helm “one popular message implicitly claimed that measures against Ye proved that he was right in saying that Jews control everything. It was retweeted more than 10,000 times and accounted for 5.5% of all top 20 retweets alone.”
In defamation, truth is the ultimate defense and Musk would have to shoulder the reverse burden in court and demonstrate that X is doing more to combat antisemitism than it shows on the face of the statistics. Absent that, a lawsuit against the ADL would just denude a non-profit of funds that it sorely needs to fight the antisemitism that X has failed to do.
On September 4, 2023, Musk
tweeted dodged: “To be super clear, I’m pro free speech, but against anti-Semitism of any kind.”
What does that mean? Is he in favor of free hate speech? Will he regulate antisemitic speech? If so, what algorithmic response is Musk going to employ that does the job better than he has done over the last 6 months? Does valid criticism of Musk also constitute free speech? Frankly, I care about action and not blithe statements and maybe that is why X is foundering. It has no soul.
Robert Garson is Chair of GS2Law and is a First Amendment and Intellectual Property litigator. He also serves as President of the American Association of Jewish Lawyers and Jurists.