Page

Writing

I Don't Think Elon Likes Me
Elon Musk is suing me.

April 16, 2023

Topics = { First Amendment + Libel + Technology }

The world's richest man and foremost self-described "free speech absolutist" is suing me for accurately publishing his own words. To the best of my knowledge, it's the first time Elon Musk has ever sued one of his critics. To be fair, he has outed one (who wrote under a pseudonym), subpoenaed one (and he's doing that to me now, too), and he has been sued by others—so far as I can tell, more than any other person in history for securities fraud—but never before has he actually filed a lawsuit against someone who stood up to him. So as I see it, I must be doing something right.

How we got here

I've lived in the San Francisco Bay Area since 2006, but for most of that time I thought of Tesla as an esoteric car company for rich people who had extremely poor design sense. (The original Model S was just not my cup of tea. Not a huge fan of the Model 3 or Y, either. Sorry. The Model X looks cool, though!) When I saw Martin Eberhard speak at Stanford in 2007 about the company's travails with the Roadster, which involved using a Lotus sports car frame and essentially tacking on some batteries and trim, I thought it was interesting, but there were always a lot of interesting, quirky things people were doing at Stanford. I enjoyed the talk but didn't give it much thought.

That changed in mid-2018, when Tesla was starting to look overvalued by markets, and soon thereafter Elon Musk and Tesla were charged with securities fraud by the SEC. I had been researching corporate fraud for the better part of the past decade, the natural consequence of starting my career in the shadow of Facebook, the 2008 financial crisis, and the lobbyists who made the mobile payment system I built after settling with Facebook spontaneously illegal. Nothing about being a technology entrepreneur had ever been easy or straightforward for me, and the reason why usually involved lawyers and opacity. So I began to work on PlainSite.

With PlainSite, I wanted to make the legal system more accessible to people, but I also wanted to connect the dots that were still on their own even after every court document was posted. With my colleagues, I began researching and publishing "Reality Check" reports on companies that seemed to have serious legal and ethical concerns, such as Herbalife, Credit Acceptance, and of course, Facebook. Sometimes, I also took short positions in these companies.

I had no intention of writing a report on Tesla at first. The news moved too fast and it seemed like the SEC had done its job by stepping in and holding Elon Musk to account. I even made some money on my short position. But then, as I learned more about the company, filing dozens of FOIA and public records requests, traveling around to different courts to find paper documents tucked away in filing cabinets, and even filing requests in court to make documents public in some cases, I began to realize that the SEC had only begun to scratch the surface. By late 2019, major media outlets were relying on PlainSite for information about Tesla on a regular basis. I was also finding myself the target of an increasing amount of internet harassment, especially on Twitter.

At the beginning of 2020, I was myself overwhelmed by the amount of information about what was really going on at Tesla, and decided that it was finally sensible to organize it in a report. I published my Tesla report on PlainSite on January 7, 2020. Around the same time, two things happened: Tesla's stock price began to skyrocket, and the harassment did as well.

By May 2020, I realized that ignoring the harassment problem wasn't going to make it to go away on its own, and that it was closely connected to the rise of Tesla's stock price. By discrediting my research, Elon Musk and Tesla hoped the company's problems (and Elon's lies about everything from calling used cars "deliveries" to "Full Self-Driving" to his many ties to Jeffrey Epstein and Ghislaine Maxwell) would go unnoticed. Finally, concerned for my safety, I sued, and unfortunately ended up with a federal judge who was not inclined to believe what I had to say. That case is now on appeal.

This is all to say that my public questioning of Elon Musk goes back a few years now. Elon likes to say that he values negative feedback, but so far as I can tell, he values it because it helps him figure out who to target next.

E-Mailing Elon

Back in December, when NPR was still on Twitter, Twitter, Inc. was still a company that existed, and we were wondering what strange new twists the year 2023 would bring, Elon Musk was busy. Yes, he was busy Sleeping At The Office And Making Sure You Knew About It—this time, the office of the company he'd just hilariously-but-also-tragically spent $44 billion on against his will—but also with other things. (Elon seems to think that sleeping at the office is a painful, presumptively sacrificial act that demonstrates how hard the office sleeper works and fixes all the problems. This is one of many views Elon holds that I question.) One of those other things was finding someone else to take the blame for a 2019 interview which was kind of blowing up in his face because he decided to equate one of his critics with murder in an on-the-record e-mail conversation.

Let us pause. However much most CEOs hate their critics—and surely some hate them a great deal—something that basically never happens is that they write about them, on the record, to a journalist, in such a way that you'd hear about it at all. For you to hear that a CEO personally considers a critic a near-murderer, well, there must have been some pretty astounding critiquing going on. Actually, in this case, Elon's critic, whose name is easily findable but shall remain nameless here, was simply letting people know the truth about what Tesla was up to. Elon's response was hyperbolic, overly aggressive, and completely unnecessary as per usual. Harassment ensued. So the critic understandably filed a libel lawsuit against Elon just before the one-year statute of limitations expired in 2020.

It surprised me as much as anyone when that lawsuit was filed. I wasn't sure Elon had said enough that was horrible enough for there to be a libel claim at all. According to a judge in Alameda County, however, it was indeed horrible enough, and that made Elon upset. So he filed an anti-SLAPP motion to try to make the lawsuit go away.

Strategic Lawsuits Against Public Participation, or "SLAPPs" as they are called in the business, are the scourge of good journalism. They are a big problem in the United Kingdom, where reporting on something responsibly and saying the thing that is actually true that people need to know inevitably leads to some wealthy oligarch with an inflated sense of self filing a SLAPP against the reporter. In California, however, the legislature was forward-thinking enough to foresee this possibility and actually passed a law to preclude it. Consequently, California has one of the strongest anti-SLAPP laws in the country, if not the world.

Naturally, Elon went and tried to use it backwards.

Instead of the journalist filing the anti-SLAPP motion against the angry oligarch the way the legislature intended (although that is just one of many possible uses), here, the angry oligarch filed an anti-SLAPP motion against the citizen journalist. Elon essentially argued that it was his First Amendment right to libel his critics. Somewhat predictably, Elon lost. The judge ruled that his insulting a critic was neither in the public interest, nor protected by the First Amendment. So Elon asked his favorite lawyer and law firm to appeal that ruling. And then he really lost, with all three judges on the appellate panel unanimously agreeing that his arguments made no sense.

Elon once for some reason admitted on Twitter that it "might be true" that he is "a narcissist." While we can't be sure if he is or he isn't, he thinks he might be, and what does a narcissist do when he finds himself cornered? He thinks a bit, points his finger at someone else nearby, and shrieks as loudly as possible. Getting the case teed up for those three California appellate judges took some time, and their decision was finally rendered on December 20, 2021. As he thought about what to do, Elon waited a full year before hiring new lawyers to replace the prior star lawyers who were either fired or quit, and then he pointed his finger—at me.

The Finger Is Pointed

At which point the shrieking began. On December 8, 2022, Elon asked the judge overseeing his critic's libel lawsuit to allow him to drag me (and my company) into the case, because my company runs PlainSite, I'm the one to whom he was replying when he potentially libeled his critic, and I posted that conversation on PlainSite. Therefore, Elon argues, it is my fault that his critic was publicly shamed. But for the publication of the e-mail conversation (which he knew or should have known would be published), there would have been no harm to anyone.

Well, as it happens, the judge disagreed on my being dragged in. The judge first pointed out that he waited too long to make this fascinating request. Elon's lawyers filed it nearly four years after the conversation was published, and more importantly for the purposes of California law, well after a trial date was already scheduled in the libel action. Elon's lawyers pressed further, asking for oral argument. Oral argument was held, and a few minutes later, the judge still said no.

The judge also dropped some hints that this all sounded ridiculous to her, and that although Elon could always file a separate lawsuit, she would definitely want to know about it if and when that happened. So Elon went and filed a separate lawsuit. Against me. Not for what I wrote, but for publishing exactly what he said.

Let's pause right here once again to consider that this does not often happen. It does not often happen that CEOs of publicly traded corporations get sued for libel. It does not often happen that said CEOs attempt to file cross-claims against journalists for publishing their own words. It does not often happen that once such attempts are shot down, twice, by a judge, the CEOs still press onward and file separate legal actions to lay fault at someone else's feet for publishing their own statements. How do I know this, you might ask? Well, I run a legal transparency service that is used for legal research. So I've done a bit of research. Not since 1987 has a situation looking much like this one come up in the California courts. That plaintiff lost, and then lost again on appeal.

Fast forward to present day, and we have one Elon Reeve Musk, suing Aaron Jacob Greenspan (that's me) and Think Computer Corporation for two things and two things only: 1) equitable indemnification and 2) contribution, for accurately publishing Elon's words on PlainSite. The separate complaint—so now it's a whole new lawsuit—was filed on February 24, 2023. It's what Elon would likely call Version 2.0, because even though the two claims are exactly the same, it includes a whole lot of new "facts" that were not in the December 8, 2022 version that got shot down twice. Suffice it to say that we have extremely different views on the allegations in the complaint.

The funniest thing about this case is that by Elon's own logic, I should assign the legal liability right back to him. He is suing me because I run Think Computer Corporation, and Think owns PlainSite. Well, guess what Elon owns? His own legal documents in the underlying libel lawsuit bemoan the fact that his statements were shared on Twitter. Isn't the owner of Twitter the one who is really responsible here?

The Finger Will Never Stop Pointing

Aside from Elon inventing the concept of an infinite loop of legal liability, why does it matter that he is picking on an independent data journalist? Well, he's vowed publicly to do this kind of thing more often. So this is perhaps a sort of trial balloon to see if persistent abuse of the legal system targeted at the press will be tolerated. Given the number of lawyers who have turned their noses up at this case—some of them avowed Elon Musk critics themselves—it seems like it very well might. And given that the vast majority of the press hasn't even noticed that they are being attacked by the world's richest man, it's not a promising sign for its ability to cover Elon's endless legal tricks in this domain and others going forward.

Stay tuned. And be careful with that retweet button on the website formerly run by Twitter, Inc. One click, and a "free speech absolutist" might send a trio of litigators after you. But if and when that happens, just know that Elon Musk says that according to the legal principle of equitable indemnification, it's actually his own fault for publishing it in the first place.

8,688 Views


Add your comment in the box below.
Name*
E-Mail*
Web Site
Comment*
What is the total when you put 7 and 5 together and add one hundred?
 *

1

Nick
June 19, 2023 at 5:50 PM EDT

*Clapping hands*
Will stay tuned.


2

Marcin
November 10, 2023 at 11:55 AM EST

I wish you well Aaron - I really hope you will succeed !


3

Jake
June 17, 2023 at 11:51 PM EDT

Bravo


4

Nick
June 19, 2023 at 5:49 PM EDT

?
Will stay tuned.

About | Writing | Technology

Copyright © 2001-2023 Aaron Greenspan. All Rights Reserved.