FREE SPEECH ABSOLUTIST OR HATE SPEECH SUPPORTER? MUSK’S LATEST TEMPER TANTRUM

Author: Matthew Wesolowski, Associate Editor

After purchasing Twitter (now known as “X”) for 44 billion dollars, Elon Musk limited moderation of hateful conduct and misinformation on the platform.[i] In response, brands stopped purchasing advertising space on X.[ii] As opposed to reinstating the moderation policies from the pre-Musk era, X sued the World Federation of Advertisers (“WFA”).[iii] WFA is a network of marketers that includes the six largest advertising agencies on the planet.[iv]  The Global Alliance for Responsible Media (“GARM”) is an initiative at WFA to set baseline brand safety standards for platforms that WFA members advertise on.[v] Post-Musk, X did not meet the standards established by GARM.[vi] Since the standards were not met, many of WFA’s members told their clients to suspend purchasing advertisements on X.[vii] X’s complaint against the WFA alleges that, by instigating the suspension of advertisements, WFA and its members conspired to boycott X.[viii]

1. Current Hate Speech on X, The Everything App

X continues to bleed money after Musk’s purchase in 2022.[ix] Most of X’s revenue comes from selling advertisement placement on the platform, which has rapidly decreased as advertisers pulled out from the platform.[x] Since Musk’s takeover, posts using slurs against gay men and Black Americans have nearly doubled.[xi] X has not taken any measures to prevent these posts from appearing on its website next to advertisements.[xii] Antisemitic posts increased by 61% during the same period.[xiii] GARM’s baseline standards state that content dehumanizing individuals based on race, religion or sexual orientation is not appropriate for any advertisement.[xiv] There are no current safeguards in place to prevent advertisements from appearing next to posts promoting hate speech on the website.[xv] Musk, as CEO of X, posted a video claiming that the Democratic Party is inviting illegal immigrants into America to increase their polling numbers[xvi] and even personally reinstated Donald Trump’s account[xvii] who incited a riot at the U.S. Capitol.[xviii] Incitement of violence is not appropriate for any advertising under GARM’s standards.[xix] Reinstating a person whose account incited violence at the Capitol is the opposite of prohibiting violent speech.[xx] Elon Musk has not come close to meeting GARM’s minimum standards, which provides WFA’s advertisers with a legitimate motive for refusing to purchase advertising space—not wanting their advertisements to appear next to inappropriate content.[xxi]

2. X’s Theory of Liability

X asserts that they were forced to lower the purchase price of advertising space because of WFA’s boycott.[xxii] When X reduced the price of advertising space to be lower than its competitors, the brands listed in the complaint still refused to purchase any advertisements.[xxiii] Most member advertisers of WFA were adhering to the boycott and chose not to continue buying advertisement space.[xxiv] X claims that the advertisers ignored a valuable opportunity when prices were low, which was not in the best interest of WFA members.[xxv] The complaint contends these actions were not in a reasonable advertisers’ best interests because one should have seen the cheaper advertising space on X, which is similar to platforms it already advertises on, and jump at the opportunity to purchase the space.[xxvi]

X contends that WFA’s refusal to purchase advertising space is a violation of the Sherman Act.[xxvii] Historically, the Sherman Act is applicable when competitors in the same field conspire to fix the price of a commodity.[xxviii] In this case, the commodity is the advertising space.[xxix] X’s line of thinking is that if they can prove a correlation between the boycott and X being forced to lower the price of advertising space, that would be considered price fixing of a commodity.[xxx] According to the Sherman Act, price fixing a commodity between competitors is illegal on its face.[xxxi]

3. Conclusion

Elon Musk seems to believe that free speech only applies to him. He forgets that the First Amendment to free speech also includes the right not to speak.[xxxii] Even if, for some reason, X were to win this case, advertisers are not running back to the platform that sued them. At most, X will receive damages for its estimated losses for lack of revenue, and at worst it burns all of its bridges to its former advertisers. This lawsuit may be Musk’s worst mistake since buying Twitter and turning it into X.

[i] Kate Conger & Lauren Hirsch, Elon Musk Completes $44 Billion Deal to Own Twitter, N.Y. TIMES (Oct. 27, 2022), https://www.nytimes.com/2022/10/27/technology/elon-musk-twitter-deal-complete.html.

[ii] Kate Conger & Tiffany Hsu, Advertising Coalition Shuts Down After X, Owned by Elon Musk, Sues, N.Y. TIMES (Aug. 8, 2024), https://www.nytimes.com/2024/08/08/technology/elon-musk-x-advertisers-boycott.html.

[iii] Complaint at 1, X Corp. v. World Federation of Advertisers et al., No. 7:24cv114 (N.D. Tex. Aug. 6, 2024).

[iv] Id. at 27.

[v] Id. at 12.

[vi] See id. at 38, 39.

[vii] Complaint at 35, X Corp. v. World Federation of Advertisers et al., No. 7:24cv114 (N.D. Tex. Aug. 6, 2024).

[viii] Id. at 23.

[ix] David Ingram, Fewer People are Using Elon Musk’s X as the Platform Struggles to Attract and Keep Users, According to Analysts, NBC NEWS (Mar. 22, 2024), https://www.nbcnews.com/tech/tech-news/fewer-people-using-elon-musks-x-struggles-keep-users-rcna144115.

[x] Id.

[xi] Sheera Frenkel & Kate Conger, Hate Speech’s Rise on Twitter Is Unprecedented, Researchers Find, N.Y. TIMES (Dec. 2, 2022), https://www.nytimes.com/2022/12/02/technology/twitter-hate-speech.html.

[xii] Ingram, supra note ix.

[xiii] Frenkel & Conger, supra note xi.

[xiv] GARM, Brand Safety Floor + Suitability Framework, 3 (last updated June 2022), https://wfanet.org/l/library/download/urn:uuid:7d484745-41cd-4cce-a1b9-a1b4e30928ea/garm+brand+safety+floor+suitability+framework+23+sept.pdf.

[xv] David Ingram, Elon Musk's X App Ran Ads on #Whitepower and Other Hateful Hashtags, NBC NEWS (June 6, 2024), https://www.nbcnews.com/tech/social-media/elon-musk-x-twitter-antisemitism-hashtags-trending-hate-rcna151945.

[xvi] @elonmusk, X (Mar. 19, 2024, 6:11 AM), https://x.com/elonmusk/status/1770030227390914624.

[xvii] Ryan Mac and Kellen Browning, Elon Musk Reinstates Trump’s Twitter Account, N.Y. TIMES (Nov. 19, 2022), https://www.nytimes.com/2022/11/19/technology/trump-twitter-musk.html.

[xviii] H.R. Rep. No. 117-000, at 232 (2022).

[xix] GARM, supra note 14, at iii.

[xx] See Mac & Browning, supra note xvi.

[xxi] See Complaint, supra note iii, at 38.

[xxii] Id.

[xxiii] Id.

[xxiv] Id. at 32-39.

[xxv] Id. at 38.

[xxvi] Id. at 38, 39.

[xxvii] Complaint, supra note iii, at 41.

[xxviii] See U.S. v. Socony-Vacuum, 310 U.S. 150, 205 (1940).

[xxix] See Complaint, supra note iii, at 38, 39, 42.

[xxx] Complaint, supra note iii, at 32-40.

[xxxi] Standard Oil Co. v. U.S., 221 U.S. 1, 88 (1911).

[xxxii] W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 645 (1943).