How Elon Musk Could Beat His Latest Defamation Lawsuit

Arguments on social media can be freewheeling and nasty; comments and accusations are often light on facts. The defamation suit filed this week against Elon Musk might test the limits of that rough-and-tumble. The lawsuit revolves around events of last June, when two far-right groups, the Proud Boys and the Rose City Nationalists, planned to protest Pride Night events in Portland, but wound up brawling with each other instead. In the course of the fighting, two members of Rose City were unmasked. A Twitter user posted a photograph of one of them alongside a photograph of a college student named Ben Brody. “Very odd,” Musk wrote back. Brody is now suing Musk, according to the complaint, for amplifying the original tweet and harming his reputation.

Brody was neither part of the brawl nor part of either group; in fact, he was not even present in Portland that night. Other users swiftly corrected the mistaken identification, but according to the lawsuit, the billionaire doubled down.

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If the allegations are true, this is nasty, reckless stuff, plainly harmful to Brody’s reputation — and reputation, although famously difficult to define, is what defamation law exists to protect. But social media is often a nasty and reckless forum, where insult and invention go hand in hand. For that reason, when facing claims that someone’s been defamed online, courts usually proceed with caution.

As news reports keep reminding us, Musk prevailed in a similar suit in 2019, when a jury rejected a claim that he’d defamed the plaintiff by calling him a “pedo guy” on Twitter (as it was then known). Musk could reuse the successful strategy from that earlier trial, which relied on a basic truism: We all understand that when arguing online, otherwise sensible people often post without thinking, a failure that can lead them to say stupid, insulting, offensive things. That’s why courts have long held that social media “hyperbole” must be read “in the context of the entire discussion.”

In 2021, for example, a federal court rejected a claim that a patient defamed a physician by writing on Yelp that he was not a “REAL and legitimate doctor.” The statement was false, the plaintiff argued, because he was properly licensed. But “viewed in their context,” the judge wrote, the defendant’s assertions “are unactionable figurative and hyperbolic statements.”

Another federal case decided the same year involved online statements that the defendant was racist and a “snake-oil salesman with nothing to sell.” The court dismissed the defamation claim because “apparent statements of fact may assume the character of statements of opinion” when “made on free-wheeling internet fora.”

And just this past August, yet another federal court rejected a libel suit arising from an accusation made on Instagram. Again, the judge’s ruling rested on the notion that social media users assume they’re being presented not with facts but with opinion.

The cases go on and on. What they suggest is an overall view by judges that language that might be defamatory in other contexts might not be on social media. When users vent their feelings, they’re not paying much attention to the “truth” of what they’re saying.

None of this should be taken to mean that a suit alleging defamation on social media can’t be won; what these and many other cases do suggest is that plaintiffs will have a tough go.

Which brings us back to the latest suit against Musk. The initial “very odd” tweet seems a weak reed on which to hang a defamation claim. Instead, the suit is more likely to turn on whether, after being warned by users that Brody had been misidentified, Musk indeed doubled down.

That second tweet responded to a claim that the unmasked brawler was “a suspected fed” — that is, an agent provocateur. Musk responded: “Looks like one is a college student (who wants to join the govt) and another is maybe an Antifa member, but nonetheless a probable false flag situation.” The complaint tells us that users connected this post with the earlier one, and thus reasonably took Musk to be talking about Brody, even after the avalanche of evidence that he wasn’t the extremist in the photograph. That potentially makes Musk’s challenge greater. It’s one thing to make an accusation in the heat of the moment; it’s something else to repeat it when faced with overwhelming evidence of falsity.

I’m not saying a jury will necessarily interpret Musk’s second tweet the way the complaint does. The plaintiff will face enormous judicial resistance. Few people read all the responses to their own posts, and Musk is probably an “@” on as many tweets as anyone in the world. (Literally.) So it’s plausible that he missed the corrections. Moreover, if the case survives a motion to dismiss — and if it’s not settled — the billionaire will doubtless testify that he wrote in the heat of the moment and, once again, apologize from the witness stand.

If he does, it will represent another truism of our age: Tweet in haste, and you might wind up repenting in court.

Stephen L. Carter is a Bloomberg Opinion columnist, a professor of law at Yale University and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

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