Deep Pockets and Defamation

Elon Musk brings up the possibility of suing the ADL for defamation:

While the ADL is obviously vulnerable on the issue of defamation, and has previously lost defamation cases, I think Musk and many others would actually have a much stronger case concerning tortious interference. The ADL literally raises money on the basis of its successful interference in contracts between third parties to which it has no relation, and its entire modus operandi is based on tortious interference for the purposes of harming the party it is targeting.

And while defamation is extremely hard for a public figure to prove, tortious interference is usually an easily established matter of record. In the case of the ADL’s interference with X’s advertising contracts, all of the elements are observably there and could be easily proven using the communications between the ADL and the advertisers.

  • The existence of a contractual relationship or beneficial business relationship between two parties.
  • Knowledge of that relationship by a third party.
  • Intent of the third party to induce a party to the relationship to breach the relationship.
  • Lack of any privilege on the part of the third party to induce such a breach.
  • The contractual relationship is breached.
  • Damage to the party against whom the breach occurs.

If Musk actually follows through with his musings with a lawsuit for tortious interference, and if Facebook, which was also targeted by the ADL, followed suit, there is a very good chance that the ADL would be financially ruined. Which would be ironic, given how many other organizations and individuals it has attempted to ruin financially. #BantheADL

UPDATE: I am very skeptical that Musk is genuinely serious about this. Among other things, he hasn’t fired his ADL-friendly CEO, Linda Yaccarino, yet.

UPDATE: On the other hand, the mainstream media is already rushing to misdirect the public and provide cover for the ADL, which tends to suggest that they are afraid the threat is real.

It’s unclear what kind of communications Musk is referring to, but a successful defamation suit would require him to prove that the ADL has been making false claims about him and his company. Musk and X did not immediately respond to a question from NBC News as to whether a complaint had been drafted. The ADL told NBC News on Monday that as a matter of policy it does not comment on legal threats.

The ADL’s publicly shared research and its criticisms of antisemitism on Musk’s platform in recent months are grounded in evidence. In March, the group flagged specific examples of antisemitic hate speech and tropes, and it criticized X for failing to remove posts in accordance with X’s own policies that prohibit hateful conduct, threats or incitement to violence based on individual or group identities. And in May, the ADL posted a report that documented examples of how antisemitic harassment networks are flourishing on the platform. Some of the ADL’s methodology seems unclear to me, and the organization also has a history of sometimes defining antisemitism in ways that conflate it with anti-Zionism. But the ADL flagged persuasive examples in its posts, and anyone who spends time on X knows the site is brimming with hate speech directed at all kinds of minority communities. One might also note that in these posts and in its report, the ADL is not calling Musk or X itself antisemitic, but the group is critiquing the company for failing to take action against antisemitic speech. Musk said on Monday that he was “pro free speech, but against anti-Semitism of any kind.”

Musk’s decision to single out the ADL is odd. As I noted, the ADL is just one voice among scores of civil rights-oriented organizations, research groups and media commentators that have criticized Musk’s laissez-faire attitudes toward hate speech. That’s to say nothing of the possibility that advertisers may choose to pull back on their spending on a platform without any pressure from activist groups or critics, and simply out of the calculation that the platform might be risky for their reputation in the future.

The twisted logic of Elon Musk’s defamation threat against the Anti-Defamation League, MSNBC, 6 September 2023

Notice how there is no mention of tortious interference, and yet the last sentence is specifically phrased to provide a hypothetical defense against the possibility that X advertisers were contacted by the ADL and pressured to stop advertising on X. And it is those communications between the ADL and the advertisers it is believed to have pressured are presumably the kind of communications to which Musk was referring.