• by Wendy Davis  @wendyndavis, October 1, 2024

Free speech watchdogs are urging a federal appellate court to reject Elon Musk's attempt to revive a lawsuit against the nonprofit Center for Countering Digital Hate over reports about offensive posts on X Corp.

Musk's effort, if successful, “could set a dangerous precedent by blocking newsgathering, research, and public commentary about digital tools and platforms on which we all rely every day,” the American Civil Liberties Union, Electronic Frontier Foundation and Knight First Amendment Institute at Columbia University argue in a friend-of-the-court brief filed late last week with the 9th Circuit Court of Appeals.

Their brief comes in a battle dating to last year, soon after the Center for Countering Digital Hate issued a report accusing the platform of failing to remove racist, homophobic and antisemitic comments posted by Twitter Blue subscribers. That report mentioned several examples, including the posts “Diversity is a codeword for White Genocide,” and “Trannies are pedophiles.”

Musk's X -- which has lost significant ad revenue since he acquired it in 2022 -- responded by suing the nonprofit for allegedly scaring away advertisers.

The suit included a breach-of-contract claim based on allegations that the Center for Countering Digital Hate nonprofit violated Twitter's terms of service by “scraping” the data that informed the reports. The complaint also claimed that the organization violated an anti-hacking law.

Although X's complaint was tied to the group's reports, the company did not allege it was defamed.

U.S. District Court Judge Charles Breyer in the Northern District of California threw out the complaint under California's anti-SLAPP (strategic litigation against public participation) law, which enables defendants to obtain rapid dismissals of claims based on statements about matters of public interest.

“This case is about punishing the defendants for their speech,” Breyer wrote.

X recently appealed that decision to the 9th Circuit Court of Appeals, arguing that the lawsuit focused on “data security,” not speech.

The ACLU and other free speech advocates argue that X is attempting to “misuse claims under contract law” and the anti-hacking law to suppress criticism.

“Courts cannot, and should not, allow private companies like X to wield breach of contract and computer intrusion claims as weapons to punish criticism,” they argue.