Judge’s stern rebuke of Elon Musk’s X gives researchers fresh hope

By Brian Fung and Clare Duffy, CNN

(CNN) — A federal judge’s decision this week reprimanding Elon Musk’s X will have reverberating effects on efforts to hold influential online platforms accountable, legal experts and advocacy groups say.

On Monday, District Judge Charles Breyer dismissed and excoriated a lawsuit by X against online watchdog group Center for Countering Digital Hate as an attempt to silence the non-profit group for sounding alarms about hate speech on the platform.

Breyer wrote in Monday’s order that the lawsuit was “unabashedly” about “punishing” reports written by CCDH, which X had accused of campaigning to drive away its advertisers. Breyer held that the reports were “unquestionably” protected by the group’s free speech rights.

Now, that decision could embolden other research groups and Musk critics who have faced legal threats from the billionaire.

The CCDH case — in the US District Court for the Northern District of California — has been widely viewed as a bellwether for research and accountability on X, where Musk has restored the accounts of previously banned White supremacists and spreaders of misinformation and where Musk himself has amplified various conspiracy theories.

And CCDH is not the only organization that has faced attacks by self-proclaimed “free speech absolutist” Musk after criticizing or raising concerns about his platform.

“This is an important decision that sees Elon Musk’s lawsuit for what it is — an effort to punish his critics for constitutionally protected speech and to deter researchers from studying his platform,” said Alex Abdo, litigation director of the Knight First Amendment Institute at Columbia University, which had filed a friend-of-the-court brief in the case arguing that private companies should not be allowed to use breach of contract claims to punish criticism.

“Society needs reliable and ethical research into social media platforms, and often that research relies on being able to study publicly available posts,” Abdo said.

X said it plans to appeal Breyer’s decision.

Musk’s threats against X critics

In his first year as owner of X, formerly known as Twitter, Musk threatened legal action against the Anti-Defamation League for defamation, as well as against Microsoft and Meta for allegedly improper data and trade secret access, respectively. None of those threats ever amounted to real lawsuits.

He did, however, sue the progressive media watchdog Media Matters over its analysis highlighting antisemitic and pro-Nazi content on X, alleging that the group’s testing methodology was not representative of how real users experience the site and that the report was designed to drive away advertisers. Legal experts have described that case as “weak” on the merits and as a “bogus” attempt to chill criticism of X.

This week’s court decision may be only a temporary setback in Musk’s wider plan to stifle criticism, said Media Matters CEO Angelo Carusone. Musk’s new playbook, Carusone said, enlists the help of sympathetic Republican attorneys general to investigate independent reporting organizations and tie them up in legal proceedings.

The states of Texas and Missouri each announced probes into Media Matters following X’s lawsuit against the group, to which Musk responded, “Great!”

As recently as Monday, Missouri Attorney General Andrew Bailey filed a petition in state court seeking to compel Media Matters’ cooperation with his investigation. The filing came a week after he appeared with Musk in a live event on X — which Carusone said shows how Musk hopes to deputize the power of government to silence his critics.

“They have every reason to do it,” Carusone said of the AGs’ investigations. “They get the political benefits, they get the attention. There doesn’t seem to be any cost to them yet. And if they are successful at developing this new playbook, this new terrain, legally, then it’s going to pave the way for them to just use this tool and tactic over and over and over again.”

A representative for X did not immediately respond to a request for comment about Carusone’s claims.

Researchers face hurdles to studying on-platform behavior

Researchers from non-profits and academic institutions have had a harder time studying X since Musk’s takeover in 2022. Academics need large samples of posts, shares, likes and other data to study social media trends in mis- and disinformation, public health, elections and other key topics. But one of Musk’s first changes at X was to put access to platform data behind a steep paywall.

Researchers and civil society groups said the new subscription fees — costing up to $2.5 million a year — were “outrageously expensive” and made it impossible to do their work, reducing transparency of a critical platform.

The change may have forced some researchers to rely more heavily on first-person observational data to draw conclusions about user behavior on X. Groups like CCDH have also used automated “scraping” of publicly viewable content from X rather than paying the company for data directly, a tactic that helped give rise to X’s initial lawsuit.

Efforts by X and other social media companies to limit research transparency makes them less accountable to the public at best and, at worst, could mask malicious behavior, said David Karpf, an associate professor in the School of Media and Public Affairs at George Washington University.

“We need independent research to have any real measure of what’s going on at X/Twitter. Musk is only ever going to release data that makes his company look good,” Karpf said. “These platforms are too big and too vital to the spread of information to be left unmonitored.”

“This is an election year,” Karpf added, “and the platforms are taking steps to make it harder to monitor how their services are used for malignant ends.”

Free Press, another media accountability organization that has been critical of Musk’s leadership of X and which called for advertisers to pause their spending on the platform shortly after his takeover, also celebrated Breyer’s ruling as potentially removing at least one hurdle that watchdog organizations face.

“The guardrails for democracy are hanging by a thread and we have dwindling insights into platform practices as researchers face lawsuits, congressional subpoenas and other scare tactics,” said Nora Benavidez, senior counsel and director of digital rights at Free Press.

Ultimately, Benavidez called the ruling “a reminder that platform accountability is essential and will inevitably prevail when up against bullies like Musk who try to silence us.”

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