Supporting Free Speech Means Supporting Victims Of SLAPP Suits, Even If You Disagree With The Speakers
When Elon filed his recent ridiculous SLAPP suit against Media Matters, it was noteworthy (but not surprising) to me to see people who not only claimed to be free speech supporters," but who made that a key part of their persona, cheering on the lawsuit, even though its only purpose was to use the power of the state to stifle and suppress free speech.
Matt Taibbi, for example, has spent the last year insisting that the Twitter Files, which he has totally misread and misrepresented, are one of the biggest free speech" stories of our times. Indeed, he just won some made up new award worth $100k for excellence in investigative journalism," and in his acceptance speech" he argued about how free speech was under attack and needed to be defended.
Just a few weeks later, he was cheering on Musk's decision to sue Media Matters over journalism Taibbi didn't like and didn't support. Taibbi argues that the lawsuit is okay because it accuses Media Matters of creating a news story, reporting on it, then propagandizing it to willing partners in the mainstream media." Except, um, dude, that's exactly the same thing you did with the Twitter Files story, propagandizing it to Fox News and other nonsense peddling networks.
Of course, Taibbi has every right to be terrible at the job of being a journalist. He has every right to not understand the documents put in front of him. He has every right to leave out the important context that explains what he's seeing (either because he's too clueless to understand it, or because of motivated reasoning and the need to feed an audience of ignorant clods who pay him). He even has every right to make the many, many factual mistakes he made in his reporting, which undermine the central premise of that reporting. That's free speech.
If Taibbi were sued over his reporting, I'd stand up and point out how ridiculous it is and how such a lawsuit is an attack on his free speech rights, and a clear SLAPP suit. Taibbi may deserve to be ridiculed for his ignorance and credulity, but he should never face legal consequences for it.
But, according to Taibbi himself, it's okay for someone who is the victim of that kind of bad reporting to sue and run journalists through the destructive process of a SLAPP suit, because if a story is propagandized" then it's fair game. He even seems kinda gleeful about it, suggesting that all sorts of reporting from the past few years deserves similar treatment, whether it was reporting about Donald Trump's alleged connections to Russia or things about COVID - that all of it is now fair game if it was misleadingly sensationalized (again, the very same thing he, himself, has been doing, just for a different team).
That's not supporting free speech. That's exactly what they accuse others of doing: of only supporting free speech when you agree with it. And it's cheering on an actual, blatant, obvious abuse of the state to try to stifle speech.
So, let's go back to Musk's other SLAPP suit, which he filed earlier this year against the Center for Countering Digital Hate, claiming that their reporting about hateful content on ExTwitter somehow violated a contract (originally, Musk's personal lawyer threatened CCDH with defamation, but that's not what they filed).
As I made clear at the time, I think CCDH is awful. I think their research methodologies are terrible. I think they play fast and loose with the details in their rush to blame social media for all sorts of ills in the world. Hell, just weeks before the lawsuit I dismantled a CCDH study that was being relied upon by California legislators to try to pass a terrible bill regarding kids and social media. The study was egregiously bad, to the point of arguing that photos of gum on social media were eating disorder content."
I would never trust anything that CCDH puts out. I think that their slipshod methodology undermines everything they do to the point that I'd never rely on anything they said as being accurate, because they have zero credibility with me.
But, unlike Taibbi, I would never cheer on a SLAPP suit against them. I still stand up for CCDH's free speech rights to publish the studies they publish and to speak up about what they believe without then being sued and facing legal consequences for stating their opinions.
That's why I was happy that the Public Participation Project, a non-profit working to pass more anti-SLAPP laws across the country, where I am a board member, decided to work with the Harvard Cyberlaw clinic to file an amicus brief in support of CCDH, calling out how Musk's lawsuit against them is an obvious SLAPP suit. Full disclosure: the Public Participation Project did ask me how I felt about the organization submitting this brief before deciding to take it on, knowing my own reservations about CCDH's work. I told them I supported the filing wholeheartedly and am proud to see the organization doing the right thing and standing up against a SLAPP suit, even if (perhaps especially because!) I disagree with what CCDH says.
The filing, written by the amazing Kendra Albert, makes some key points. The original lawsuit was framed as a breach of contract" lawsuit in a thinly veiled attempt to avoid an anti-SLAPP claim, since ExTwitter will certainly claim contract issues have nothing to do with speech.
But as the Public Participation Project's filing makes clear, there is no way to read that lawsuit without realizing it's an attempt to punish CCDH for its speech and silence similar such speech:
By suing the Center for Countering Digital Hate (CCDH"), X Corp. (formerly Twitter), seeks to silence critique rather than to counter it. X Corp.'s claims may sound in breach of contract, intentional interference with contractual relations, and inducing breach of contract (hereinafter state law claims"), rather than being explicitly about CCDH's speech. But its arguments and its damages calculations rest on the decisions of advertisers to no longer work with X Corp. as a result of CCDH's First Amendment protected activity. In brief, this is a classic Strategic Lawsuit Against Public Participation (SLAPP). X Corp. aims not to win but to chill.
Fortunately, the California anti-SLAPP statute, Cal. Civ. Proc. Code 425.16, provides protection against abuse of the legal system with the goal of suppressing speech. X Corp.'s claims arise from CCDH's protected activity and relate to a matter of public interest, making it appropriate for the anti-SLAPP statute to apply. Indeed, the anti-SLAPP statute's purpose requires its application to these claims.
No doubt recognizing this, X Corp. seeks to do through haphazardly constructed contractual claims what the First Amendment does not permit it to do through speech torts. The harm that the anti-SLAPP statute aims to prevent will be realized if this court allows X Corp.'s claims to continue. The statute provides little help if plaintiffs can easily plead around it.
Indeed, X Corp.'s legal theories, if accepted by this court, could chill broad swathes of speech. If large online platforms can weaponize their terms of service against researchers and commentators they dislike, they may turn any contract of adhesion into a SLAPP trap." Organizations of all types could hold their critics liable for loss of revenue from the organization's own bad acts, so long as a contractual breach might have occurred somewhere in the causal chain.
X Corp.'s behavior has already substantially chilled researchers and advocates, and it shows no signs of stopping. Since this litigation was filed, its Chief Technology Officer has threatened organizations with litigation because they have commented on X Corp.'s policies in a way that he dislikes. And on November 20, 2023, X Corp. filed another lawsuit against a non-profit organization for reporting its findings about hate speech on X. Organizations and individuals must be able to engage in research around the harms and benefits of social media platforms and they must be able to publish that research without fear of a federal lawsuit if their message is too successful.
Standing up for free speech means standing up against using the power of the state, including the courts, to attack and suppress speech you dislike. As much as I disagree with CCDH's conclusions and the methodology behind many of its reports, unlike supposed free speech warriors" cheering on Musk's lawsuits against the likes of CCDH and Media Matters, I'm proud that an organization I'm associated with is willing to stand on principle and argue for actual free speech.
Hopefully, the courts will recognize this as well. And hopefully more people will begin to realize just how thin and fake the claims of other free speech" supporters are. Not through lawsuits, but just by seeing what they actually do in practice when true threats to free speech arrive.