• by Wendy Davis , Staff Writer @wendyndavis, February 29, 2024

X Corp's lawsuit against the Center for Countering Digital Hate for allegedly scaring off advertisers met with a chilly reception Thursday, when the presiding judge strongly suggested he's skeptical of the platform's case.

In a remote hearing that lasted nearly two hours Thursday, U.S. District Court Judge Charles Breyer in the Northern District of California all but said X's main legal theory -- that the Center for Countering Digital Hate violated X's terms of service by scraping the information it cited in critical reports -- wouldn't entitle X to recoup a multi-million award for lost ad revenue.

Breyer told X attorney Jon Hawk that the platform could only recover for lost ad revenue if such damages were foreseeable when the Center for Countering Digital Hate agreed to X's terms of service.

“I think they weren't even remotely foreseeable,” Breyer said.

Breyer elaborated that the watchdog agreed to the terms of service before Elon Musk -- who has famously called himself a free speech absolutist -- purchased the platform.

“Twitter became X Corp. and changed its policies,” Breyer told Hawk, referring to moves such as Musk's reinstatement of accounts that had been banned for violating the former management's rules about acceptable content.

In essence, the judge said those policy changes meant the nonprofit couldn't have known when it agreed to the no-scraping terms that an alleged violation would uncover the kinds of problematic posts that advertisers want nothing to do with.

The watchdog's attorney, John Quinn, denied that the organization “scraped” data from X. Instead, Quinn argued, the group only used a search function on Twitter.com to find public posts.

Quinn also argued to Breyer that any loss of ad revenue was due to independent decisions by advertisers, and couldn't be attributed to the Center for Countering Digital Hate.

The hearing came in a suit brought by X against the ant-hate speech group last July, soon after the organization reported that the platform failed to remove objectionable speech -- including racist, homophobic and anti-Semitic comments -- posted by Twitter Blue subscribers. That report cited several examples, such as the posts “Diversity is a codeword for White Genocide,” and “Trannies are pedophiles.”

X didn't sue for defamation, in which case truth would have been a defense. Instead, the tech company alleged that the Center for Countering Digital hate engaged in “a series of unlawful acts designed to improperly gain access to protected X Corp. data.”

The tech platform said in its complaint that the watchdog's activity resulted in “at least tens of millions of dollars” in lost ad revenue and “other costs.”

Some of those other costs included implementing security measures “to deal with this incident,” Hawk told Breyer at the hearing.

The judge seemed to question why the supposed scraping could have threatened security, noting that even if the allegations were true, the information obtained by the Center for Countering Digital Hate had been posted publicly by X's users.

Breyer also appeared to be troubled by the free-speech implications of X's lawsuit, saying at one point: “I can't think of anything more antithetical to the First Amendment than silencing people from publishing this public information.”

The judge hasn't yet said when he'll issue a decision.