CCDH seeks dismissal of X’s defamation case under Calif.’s anti-SLAPP law

The ruling could determine how legal threats are a powerful weapon for groups and scholars that call out lies and propaganda on social media platforms ahead of the 2024 election.

CCDH and its attorneys — who include Roberta Kaplan, fresh from her victories against former president Donald Trump on behalf of writer E. Jean Carroll — say the case is about a man who holds himself out as the world’s greatest defender of free speech trying to suppress speech he doesn’t like, by CCDH and others worried that they could be next.

“We’re living in an age of bullies, and it’s social media that gives them the power that they have today,” Kaplan told The Washington Post. The case, she said, is about “standing up to bullies.”

“Elon Musk and X Corp. are trying to intimidate and censor a nonprofit that had the courage to speak the truth about the hate that proliferates on X’s platform,” she said in an email. “We are proud to stand with CCDH.”

X has also sued left-leaning Media Matters in Texas, where Musk has multiple businesses and where, unlike California, the state’s anti-SLAPP law doesn’t apply in federal courts. Musk also threatened to sue the Anti-Defamation League (ADL), which complained loudly about antisemitism on the platform. Relations eased after ADL praised Musk for agreeing to ban the Palestinian phrase “from the river to the sea” as hate speech.

The prospect of being in litigation with one of the world’s richest people has unnerved small nonprofits as well as academics who might not be able to count on their universities for complete backing. Researchers and advocates are also under fire from activist lawsuits and probes by politicians including Rep. Jim Jordan (R-Ohio), the Republican chair of the House Judiciary Committee, who demanded CCDH documents a month after X sued it.

“People are clearly scared about doing research right now, which is particularly worrying in an election year,” CCDH chief executive Imran Ahmed said in an interview. “If we go down, no one will do any more research on X. It will be far too dangerous.”

A survey of 167 X researchers conducted for Reuters last year found that 104 were concerned about being sued over their work. Less than half of their research projects were continuing as of September, Reuters reported, though the respondents also cited X’s decision to charge for access to data as a factor.

That survey was cited in a brief filed in support of CCDH by multiple groups, including the American Civil Liberties Union, the Electronic Frontier Foundation and the Knight First Amendment Institute at Columbia University.

X said the case is about CCDH improperly scraping posts and reactions from its site. The company said the group violated its terms of service, improperly used a tool giving subscribers to advertising services from Brandwatch greater visibility into the site’s activity, and violated the Computer Fraud and Abuse Act’s provision against unauthorized access to machines and data.

The “claims are based on the Defendants’ course of conduct that resulted in CCDH gaining unauthorized access to nonpublic data that X Corp. licensed to Brandwatch, and on CCDH … breaching its agreement with X Corp. by scraping data from the X platform,” X wrote in December.

What particularly upset Musk, the lawsuit suggests, is what CCDH did with that information, which was to publish reports that spooked advertisers.

X said CCDH’s report and call for advertisers to quit cost it “tens of millions” of dollars in revenue. “It cherry-picked from the hundreds of millions of posts made each day on X, and used the data to falsely claim that it had statistical support showing X is overwhelmed by harmful content,” the company wrote.

Looking at the number of impressions being generated by 10 problematic accounts Musk reinstated, CCDH estimated ads on them would generate about $19 million in annual revenue for the company. The accounts that CCDH focused on included neo-Nazi Andrew Anglin, a doctor who asserted coronavirus vaccines did not work, and erstwhile Newsmax correspondent Emerald Robinson, who claimed the vaccine included a satanic bioluminescent marker.

In a mirror image of what CCDH sees as the issue, X claims the result is about more than money: “X Corp. has been harmed in its mission to establish X as an open marketplace for the exchange of ideas, free from censorship.” X and its attorney in the San Francisco case, Jonathan Hawk, did not respond to requests for comment.

It made similar arguments in its suit against Media Matters in November, after the nonprofit showed screenshots of ads from Apple, IBM and others next to pro-Hitler posts, prompting those two companies to stop buying ads.

In the Texas case, the company accused Media Matters of disparagement and interference with X’s contracts with advertisers. X said Media Matters followed white supremacists to trigger the ads. Texas Attorney General Ken Paxton (R) then said he would investigate the nonprofit for fraud.

X’s case is in the Fort Worth division of the Northern District of Texas, where it is being heard by George W. Bush appointee and conservative favorite U.S. District Judge Reed O’Connor, whose rulings include one, later reversed, that found the Affordable Care Act unconstitutional.

With the prospects in Texas more in Musk’s favor, the founder of a federal anti-SLAPP coalition said it was even more important for CCDH to win dismissal in San Francisco and avoid trial.

“If one believes in free speech and that it’s desirable be able to hold platforms accountable and be critical, it’s especially criticism of large and powerful and wealthy public entities that is most important,” said Mark Goldowitz, founder of the Public Participation Project.