X's legal eagles swoop on Media Matters over antisemitic content row

Case filed in Texas, where anti-SLAPP provisions don't apply in federal court

Elon Musk has made good on threats to take legal action against Media Matters over its reports alleging high-profile ads are being served next to antisemitic posts, filing a suit yesterday in Texas.

According to X's lawyers, Media Matters manufactured the ad placements it reported last week that caused IBM and other high-profile advertisers to suspend ad spending on Musk's social media platform.

"Media Matters knowingly and maliciously manufactured side-by-side images depicting advertisers' posts on X Corp.'s social media platform beside Neo-Nazi and white-nationalist fringe content and then portrayed these manufactured images as if they were what typical X users experience on the platform," X argued in its complaint [PDF]. 

Per the suit, and expanding on what The Register was previously told by X, Media Matters allegedly created an account that exclusively followed "fringe accounts" and those associated with large brands advertising on X.

"Through intentionally evading X's multiple safeguards by curating the content on its feed and then repeatedly attempting to create pairings of advertisements for major brands with controversial content, Media Matters finally achieved its goal," X claimed in its filing. That goal, the company claims, was to get ads from IBM, Apple, Bravo, Xfinity, and Oracle "to appear adjacent to inflammatory, fringe content."

X claimed those posts were "not only inorganic, but exceedingly (and demonstrably) rare," yet the lawsuit is still an admission that the ads were served. The suit also reveals that, of all the companies mentioned in the Media Matters lawsuit (IBM, Comcast, NBCUniversal, Apple, and Oracle), only Oracle hasn't withdrawn advertising. X also stated that Lionsgate, Warner Brothers Discovery, Paramount, and Sony had all withdrawn ads alongside those listed in Media Matters report.

X is accusing Media Matters of interfering with advertiser contracts, business disparagement, and interference with prospective economic advantage. X seeks unspecified damages and to force Media Matters to remove its article alleging the posting of ads adjacent to antisemitic content.

"This is a frivolous lawsuit meant to bully X's critics into silence. Media Matters stands behind its reporting and looks forward to winning in court," Media Matters president Angelo Carusone said of the filing.

X and its lawyers didn't respond to questions for this story.

Anti-SLAPP rules

Though they vary from state to state, the US has laws designed to protect publishers from printing negative publicity about individuals and companies, which are generally referred to as strategic lawsuits against public participation, or SLAPP suits.

"People bring SLAPP suits because they can either temporarily prevent their critics from making public statements against them or more commonly to make critics spend all of their time and resources defending the SLAPP suits," Cornell University's Legal Information Institute says. "By definition, SLAPP suits do not have any true legal claims against the critics."

Whether that's true of the case in X's case against Media Matters will be up to the courts to decide, but by choosing to file its lawsuit in Texas's 5th District court, as opposed to the 9th District where X is headquartered, Musk's lawyers are suing Media Matters where there are rules against anti-SLAPP lawsuits.

The Fifth Circuit Court of Appeals ruled in 2019 that Texas's anti-SLAPP rules don't apply to federal cases, meaning Media Matters won't be able to move to dismiss the case on the basis that it's a SLAPP suit, which is exactly what the Center for Countering Digital Hate (CCDH) moved to do in the suit X filed against it in August.

In a filing [PDF] last week, the CCDH alleged that X's case hinged on the fact that it was publicly criticized, not that the CCDH violated any of its rules. Federal courts in California, where the CCDH case was filed, accept anti-SLAPP charges unlike Texas's 5th District. The judge in the CCDH suit has yet to decide on the dismissal.

"The 5th Circuit is one of the most conservative courts in the country and likely to be more receptive to First Amendment arguments that take a broad approach to its applicability," Colin Levy, a lawyer specializing in the intersection of law and technology, told The Register. "As to whether the suit has merit, that depends on what precise data X can show in court."

Musk has also threatened to sue the Anti-Defamation League as a source of X's sinking advertising revenue, though that lawsuit doesn't appear to have materialized.

In an all-hands meeting at X yesterday, CEO Linda Yaccarino reportedly told employees to "put your heads together to bring new revenue into the company," while also urging staff to "be as fiscally responsible as possible" as X's revenue slips further and further from the break-even point Musk claimed the company was approaching. ®

This lawsuit is X Corp v. Media Matters for America, case number 4:23-cv-1175 in the US District Court for the Northern District of Texas.

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