• by Wendy Davis  @wendyndavis, March 25, 2024

A federal judge has thrown out X Corp.'s claims against the watchdog Center for Countering Digital hate, ruling that the tech company filed suit in order to penalize the watchdog for issuing critical reports.

“This case is about punishing the defendants for their speech,” U.S. District Court Judge Charles Breyer wrote in an opinion issued Monday.

The decision comes in a lawsuit brought by X last August over reports about offensive speech posted by users. One of those reports, issued several week before X sued, accused the company of failing to remove racist, homophobic and antisemitic 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 -- which has lost significant ad revenue since its 2022 acquisition by self-labeled “free speech absolutist” Elon Musk -- claimed that the anti-hate speech group's reports scared away advertisers.

The company alleged in its lawsuit that the nonprofit violated the platform's terms of service by “scraping” the data that informed the reports. X also claimed that the watchdog violated an anti-hacking law.

The nonprofit urged Breyer to throw out the lawsuit at an early stage for several reasons. The group argued that even if the allegations were true, they wouldn't give X grounds for a breach of contract suit or a suit over the anti-hacking law.

What's more, the group argued that the allegations centered on “quintessential newsgathering activity,” and should therefore be thrown out under California's anti-SLAPP (strategic litigation against public participation) law.

That statute entitles defendants to fast dismissals of claims based on statements about matters of public interest, and also allows defendants to recover attorneys' fees.

Breyer agreed with the nonprofit's arguments and dismissed the suit under the anti-SLAPP law.

“X Corp.’s motivation in bringing this case is evident,” Breyer wrote in the 52-page opinion. “X Corp. has brought this case in order to punish CCDH for CCDH publications that criticized X Corp. -- and perhaps in order to dissuade others who might wish to engage in such criticism.”

Breyer also noted that X is separately suing the watchdog Media Matters over its reports about content on the platform.

“If there is any question about the 'punishing” part, X Corp. filed a similar suit ... in November of 2023 against Media Matters, another non-profit media watchdog,” Breyer wrote.

“Prior to doing so, Musk threatened a 'thermonuclear lawsuit' against Media Matters,” Breyer added, quoting from Musk's tweet about the suit. “Musk’s post also claimed, remarkably, that the lawsuit was furthering X Corp.’s efforts 'to protect[] free speech.'”

The ruling comes several weeks after Breyer suggested at a hearing that he was skeptical of X's claims.

At that hearing, Breyer told X attorney Jon Hawk that the platform couldn't obtain damages for lost ad revenue, unless those 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 at that hearing.

The judge elaborated that the watchdog agreed to the terms of service before Musk purchased the platform and revised its approach to content moderation; among other moves, Musk reinstated accounts that had been banned.

John Quinn, who represented the Center for Countering Digital Hate, 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.