Co-Presidents Donald Trump and Elon Musk have used their bully pulpits to put the issue of free speech front and center of late, whether we like it or not.1 From cartoonists and staff resigning at the Washington Post to Trump's media lawsuit du jour, the flip side of "free speech" is what makes it not so free: censorship by the government, or lawsuits by private parties. As a result, the right to sue over speech has become a rather hot topic as well.
One of the funny things about free speech is that lawsuits are themselves a form of speech. A complaint in a lawsuit is just a bunch of words on a page in a particular format, after all. There's also a category of lawsuit that describes litigation intended to limit the expression of other people's First Amendment rights in public forums: Strategic Lawsuits Against Public Participation, or SLAPPs.
SLAPPs can be a problem because they can discourage people from speaking up truthfully, candidly and accurately about important topics. They are roughly equivalent to "lawfare," where legal proceedings are used to achieve strategic objectives, such as causing a target financial distress, forcing a change to their behavior, or shutting them up to prevent certain facts from becoming known. Whether they target a reporter with an important story about a powerful individual or an average citizen who wants to state an unpopular opinion aloud at a town hall meeting, SLAPPs can be used to scare and intimidate.
Getting sued for defamation can be extremely expensive in terms of both time and money. It's common for such lawsuits to last for three or more years and cost hundreds of thousands of dollars due to attorney fees, aside from whatever a verdict might cost. In the infamous Bollea v. Gawker lawsuit which effectively ended that publication's existence, a jury awarded Terry Bollea, also known as Hulk Hogan, $115 million in compensatory damages and $25 million in punitive damages. And according to The Guardian, when Maltese journalist Daphne Caruana Galizia, who sounded the alarm in her country about information from ICIJ's Panama Papers project, was assassinated via car bomb in 2017, "she was fighting 47 civil and criminal defamation lawsuits from an array of business people and politicians, brought by multiple law firms." Her children established a non-profit organization in her memory to bring attention to the issue.
So, to try to level the playing field, several states have passed anti-SLAPP laws, which aim to streamline the process of getting rid of frivolous lawsuits based on speech. Generally, they work.
The Good
I've grown somewhat familiar with these laws. Not every state has them, and some are more effective than others. California is generally regarded as having the strongest anti-SLAPP law, though states such as New York have been catching up in recent years. That's because of what is known as a mandatory fee-shifting clause: the legal requirement that whoever loses an anti-SLAPP motion is required to pay the legal fees and costs of the winner. In California, if a "special motion to strike" under California Code of Civil Procedure § 425.16 is granted, then the claims at issue in the lawsuit's complaint (and often, it's all of them) effectively disappear, there's no more case to pursue on those claims, and the loser has to pay up. In this manner, frivolous lawsuits meeting the public interest criteria spelled out in the statute often meet a quick end.
Other states have been less successful, but it's still better to have something on the books than nothing. In a case I've been involved with in Maryland—a case so completely bonkers I made a podcast about it—invoking the Maryland Anti-SLAPP Statute had absolutely no effect, because the judge literally did not know what it was or what it was designed to do. To the dismay of the attorney arguing the motion, it appeared that she'd never heard a case involving an anti-SLAPP motion before. The law's requirement to hold a quick hearing went ignored, and even if the motion had been granted, the lack of any fee shifting means there's no practical deterrant. Still, with a different judge, the anti-SLAPP motion might have had more success. There have been efforts to lobby the Maryland legislature for improvements.
California's law is much more familiar to its state judges. I know this from experience. Earlier this week, I won a victory in a free speech case presided over by a Commissioner—more or less a temporary judge—who, despite not being a full-time judge, was still familiar with the California Anti-SLAPP Statute. In the specific case I was dealing with, a frequent litigant was upset that several of his legal proceedings were posted on PlainSite, the legal information service I have run since 2011. After several years of e-mails, telephone calls, a false report to the local Sheriff's Department, a false report to the FBI, and a false report to the California Attorney General, he decided to ask the Superior Court of Los Angeles County to seal one of his many cases. When the court denied his motion, he filed an appeal, and then after a few weeks, he gave up on it. With the court order denying his motion to seal set in stone, he decided that he still had one last option: filing for a civil restraining order.
Filing for a restraining order against the executive of a company that republishes public information is a bad idea for several reasons. First of all, it's most likely the company doing the publishing, not the person running it (though there can be exceptions), so the individual is likely the wrong defendant. Second of all, the California Anti-SLAPP Statute unquestionably applies to civil restraining orders. Third of all, there's a good chance that someone running such a company might have dealt with a situation like this before, which means that such an executive may actually know that the California Anti-SLAPP Statute applies to civil restraining orders.
So I filed my Special Motion to Strike pursuant to California Code of Civil Procedure § 425.16 and I argued the merits and won. I did so pro se, without the considerable expense of a lawyer, which minimized the financial impact. Glossing over some details of the case that aren't relevant, the fact that my opponent also prepared his attempt at an opposition brief pro se meant that the playing field was effectively level from a financial standpoint.
The Bad
I've now litigated or directed litigation of anti-SLAPP motions in multiple states, both as a plaintiff and as a defendant, against adversaries rich and poor. I've also seen what happens when litigation is filed in states with no anti-SLAPP law on the books: the bad guys win. Usually, the bad guys are the ones with more money, and they tend to be the ones saying and doing truly abhorrent things.
To clarify, when I say I've litigated against "rich" people, I'm referring to Mark Zuckerberg (although not in an anti-SLAPP context) and Elon Musk, who is not merely "rich," but is reportedly the wealthiest man on Earth at the moment, thanks to his incredible success at leveraging both consumer and securities fraud. So I have some experience not just with the legal principles at issue, and not just with the particular statutes involved, but also with the ways that real flesh-and-blood judges have reacted to various arguments, which have differed substantially from case to case.
People like Elon Musk are democracy hackers. Through their $1,500+-per-hour lawyers, they do to systems of laws and regulations what computer hackers do to systems of hardware and software: through motions in court (and outrageously illegal challenges to the rule of law, such as sponsorship of election-buying lotteries) instead of commands at a shell prompt, they ask questions that reveal flaws, and then they exploit those flaws to achieve their own ends. It should therefore be expected that any new law, and especially any law around free speech, will be subject to the kind of relentless hacking that Musk and his legal teams practice.
Think of it from Musk's perspective: the perspective of a bad-faith individual who, for various reasons, wants to shut up all opposition. Anti-SLAPP statutes are perfect tools. They are, by definition, legal—far less messy than pushing journalists out of windows, as tends to happen in the Russian Federation. The veneer of legitimacy can be compelling to many observers unfamiliar with Musk's tactics, notably including lawyers, who might even agree with efforts to clear courtrooms of annoying "fools"4 who, in their view, just clog up the gears of justice—those too poor, confused, or self-assured to secure legal representation. Needless to say, I do not share this view.
By labelling any political or business opposition a so-called "threat" to free speech, one can not only silence those critics who have had the temerity to file suit but preemptively cow others into submission simply through the threat of mandatory fee-shifting: giving judges no discretion as to whether the loser has to pay. It's automatic and required by law.
The problem is that while no fee-shifting (a la Maryland) doesn't work to accomplish anything, the anti-SLAPP math of mandatory fee-shifting doesn't work when the wealthy, and especially billionaires, are involved. The California legislature didn't account for bad-faith litigants with extravagant wealth when it drafted the state's anti-SLAPP statute; it assumed that each side would be subject to roughly the same financial incentives caused by fee-shifting. Yet when a billionaire with a massive legal team charging eye-watering hourly rates enters the equation, fee-shifting becomes an onerous and impossible burden on the other party; a pointless and unworkable scheme. One side has immense risk, and the other, practically none. In fact, in most states, courts insist that the time of hard-working people without lawyers is worth precisely zero—only the time of lawyers has value. This absurd construct means that in some cases, there is no financial risk at all for Goliaths, but even the exceedingly rare successful unrepresented David can expect no financial reward for their bravery. So why would anyone challenge a billionaire?
The Ugly
Elon Musk and his attorneys have figured out that he can systematically abuse the California Anti-SLAPP Statute, among others—and practically no one will even notice. They have, on Musk's behalf, been doing this for years.
The first example is the 2009 lawsuit that set the stage for Musk ultimately taking over Tesla, Eberhard v. Musk, where Musk lost an anti-SLAPP motion and was warned by a judge that "an anti-SLAPP motion is not the proper mechanism to use to contest the validity of this cause of action," where the particular claim involved was a claim for declaratory relief. When Musk lost that motion over 15 years ago, he was certainly wealthy, but so was his opponent—one of Tesla's actual founders and its founding CEO, Martin Eberhard—and he wasn't the kind of true oligarch that he is today. So perhaps Musk felt the sting of defeat for a while, and he didn't file any anti-SLAPP motions for several years.
Then something changed. Musk's nested frauds compounded one another, the SEC, FTC, NHTSA, CADMV, FBI, USDOJ, and Presidents Obama, Trump, and Biden all did next to nothing, and Musk was well on his way to becoming the richest man on Earth. In 2019, I e-mailed him some questions using my PlainSite e-mail address and PlainSite e-mail signature.2 He knew that by responding he was granting an on-the-record interview. After our conversation was finished, I published it.
Much to my surprise, that e-mail conversation led to a libel lawsuit against Musk because in the conversation, he falsely called short-seller Randeep Hothi someone who "almost killed Tesla employees." Musk apparently thought I had somehow masterminded this turn of events, even accusing me of having picked Randeep Hothi's attorney. None of this was true.
In that resulting libel suit, Hothi v. Musk, filed in the Superior Court of California for Alameda County, Musk filed an anti-SLAPP motion arguing that his criticism of short-sellers and various critics was an issue of public interest. He lost. Musk then appealed his loss. He lost again on appeal at the California Court of Appeals, with the panel of judges unanimously ruling against him. Even though Tesla was and is a publicly traded company, and even though Musk was and remains world-famous, the judges ruled that his insults were not of public interest, and crucially, not closely related enough to any issue that was of public interest. So the Hothi case proceeded, with Tesla then refusing to turn over discovery documents that would have been deeply incriminating.
In 2020, after enduring relentless harassment that included an attempt to frame me for possession of child pornography in response to my transparency work on Tesla and Musk, I sued one of Musk's biggest (now paid) promoters, as well as Musk and Tesla, Inc., for securities fraud, libel, and harassment. Musk's fan filed an anti-SLAPP motion in response to each of several versions of my complaint. Those motions went nowhere. Federal District Judge James Donato "terminated" the most recent one—the earlier verisons having already been rendered moot—neither granting nor denying it when he selectively declined supplemental jurisdiction in a confusing series of self-contradictory orders.3
By 2022, someone had whispered into his Musk's ear that he could use his newfound, illegally-obtained, superlative wealth to start shaping laws through litigation. After his declaration on Twitter that he was "out for blood," Musk's "Hardcore Litigation Department" was born.
Musk's first order of business with his new Hardcore Litigation Department—mostly just ex-Quinn Emanuel lawyers working for Tesla or outside firms—was to attempt to sue me. At first, this effort failed; the judge in the Hothi lawsuit denied Musk's motion for leave to file a cross-complaint. So he filed a separate complaint. Musk reasoned that the libel lawsuit, where his anti-SLAPP strategy had failed, was my fault. In response, I threatened to file an anti-SLAPP motion against him. He then voluntarily dismissed the case before I could even get around to it, on the day before my separate sanctions motion would have landed on the docket. (Sanctions motions are subject to a "cooling off" period.) Not so coincidentally, at the exact same time, Musk strong-armed Randeep Hothi into accepting a small settlement by invoking Section 998 of the California Code of Civil Procedure—another California statute with a fee-shifting clause. Had Randeep not accepted Musk's lowball settlement offer, he could have been forced by law to pay Musk's legal and expert witness fees later on in the event that he lost the case.
Hothi faced the dilemma that anyone litigating against a billionaire does, and he decided to make the agonizing decision to give up on a meritorious claim, risking even more harassment and libel, due to the power imbalance dramatically enhanced by state law. The math was stark. Who could blame him?
Musk's anti-SLAPP fetish then went into overdrive despite his professed love for the First Amendment and absolute freedom of speech. After my appeal was over and I went back to state court, Tesla and a number of the other defendants removed the case to federal court and filed an anti-SLAPP motion against me. Later, Musk, who had been evading service of process, joined in as well. X Corp. and Morgan Stanley filed their own separate motions, as well—a coordinated attempt to bankrupt a critic.
Meanwhile, in Lemon v. Musk, Musk also filed an anti-SLAPP motion against former CNN anchor Don Lemon, who began criticizing Musk after Musk unceremoniously fired him, just days after hiring him.
In Benjamin Brody v. Elon Musk, Musk filed an anti-SLAPP motion under Texas's anti-SLAPP law, the Texas Citizens Participation Act (TCPA), against a college student he allegedly libeled on Twitter. Unlike California's anti-SLAPP law, the TCPA does not mandate fee-shifting, but it does allow a judge to award reasonable attorney's fees. Musk lost the motion. Now he's filed an appeal.
And in Taylor et al v. Tesla, Inc., Tesla filed an anti-SLAPP motion because Tesla refused to comply with discovery, essentially asserting that the company had the right not to speak, and that any effort to force it to speak would violate the anti-SLAPP statute. This would be generously described as a bonkers argument. Tesla lost and then appealed. The California Court of Appeals ruled against Tesla, with its scathing opinion starting off by stating that there was "no merit to any of Tesla's arguments."
So, in total, that's seven anti-SLAPP motions filed to date by Musk and/or his companies:
- Eberhard v. Musk
- Hothi v. Musk
- Greenspan v. Musk (Musk/Tesla/other defendants combined)
- Greenspan v. Musk (X Corp.)
- Lemon v. Musk
- Brody v. Musk
- Taylor et al v. Tesla, Inc. (Tesla)
So far, Musk has prevailed on none of them. He has also never fully complied with the statute, having failed to report his anti-SLAPP filings to the Judicial Council as required by Section 425.16(j)(1). If you include the anti-SLAPP motion(s) Musk's paid promoter Omar Qazi filed in Greenspan v. Qazi, it's arguably eight that he's responsible for. All of this, coming from a self-described "free speech absolutist."
Whether or not one agrees with my personal take on Elon Musk, and whether or not one thinks my legal pleadings are competently drafted or deserving of scorn and derision, there is undeniably a pattern here.5 In many of these cases, anti-SLAPP motions were filed in parallel with motions to dismiss, which, if granted, would have had the same ultimate effect as striking claims anyway: whether a claim is dismissed or struck, it's inactive going forward. So the only actual purpose of Musk filing anti-SLAPP motions is scaring legal adversaries and potential adversaries with the threat of financial ruin.
And in addition to those anti-SLAPP motions, Musk has also been busy filing lawsuits that most would agree are themselves SLAPPs or at the very least intended to harass, if they have not been determined as such by a judge already—which at least one has. Those lawsuits are:
- Musk v. Greenspan
- X Corp. v. Center for Countering Digital Hate, Inc.
- X Corp v. Media Matters for America et al
- X Corp v. World Federation of Advertisers et al
Why does any of this matter?
If you're ever standing around the anti-SLAPP water cooler, you'll probably hear the argument that even if there are problems with anti-SLAPP laws, they are overall far better than not having any at all. And I completely agree. I am all for anti-SLAPP laws. As I mentioned, I've used them myself. I know journalists who have been targeted by the wealthy, and I've read stories about others who have suffered immensely due to frivolous lawsuits specifically intended to shut them up.
At the same time, I've seen up close how they can be abused, and even one extremely wealthy person abusing them can do immense harm to society at large. That's because the math of mandatory fee-shifting just does not work when extremely wealthy individuals are involved. If a person worth even a mere $50 million hires an army of lawyers at sky-high hourly rates and threatens an anti-SLAPP motion against a journalist making under $100,000 per year, who wins? It's an automatic victory for the wealthy party, even before a single page is filed in court. Instead of selecting for substantive merit, the law selects for cash.
It's also often the case that just one whistleblower is able to obtain and come forward with vital information about a given company. One person. No one else. If that one whistleblower is silenced or too scared to go to court and file suit because of the threat of paying a billionaire's attorneys' fees, that's a real problem. And it's just as big of a problem as the threat whistleblowers have traditionally faced when deciding whether to go to the media on the record because of the threat of libel suits.
It also matters because as we attempt to fix the problems with the patchwork of state laws, it's important to be aware of how new federal legislation might make that patchwork better or worse. I was impressed when I read the bill put forth by Congressman Jamie Raskin (D-MD), Congressman Kevin Kiley (R-CA), and Senator Ron Wyden (D-OR), called the Free Speech Protection Act (note, not at all the same as the Free Speech Protection Act sponsored earlier by Congressman Jim Jordan, H.R. 4791 of the 118th Congress). The Raskin/Kiley/Wyden bill does not contain a mandatory fee-shifting clause, which I view as a good thing because of the exceptional circumstances, e.g. vindictive billionaires, that make such clauses highly problematic.
The federal bill as written unfortunately does not pre-empt state law so far as I can tell, so even though using the proposed federal anti-SLAPP law would be less prone to abuse, bad-faith actors of considerable means would still have the option of using a state law like California's instead, which would still provide them with a mechanism to threaten their critics with bankruptcy. There's also the problem that no statute is immune from the whims of political activist judges or judges beholden to their financial holdings who refuse to divest. What one district judge calls "unreasonable" or "special circumstances"—both phrases that appear in the bill—might differ considerably from another. Is your opponent in court being worth $500 billion a "special circumstance?" In a perfect world with a rational Congress, it would be safer to address wealth disparities more directly in the text, or at least provide some clues as to what those terms should actually mean.
It should be noted that California's Anti-SLAPP Statute already has a provision about "SLAPPbacks," which are lawsuits for malicious prosecution filed in response to bad-faith SLAPP lawsuits. As it happens, I filed such a claim against Musk for malicious prosecution. However, since Musk voluntarily dismissed his malicious lawsuit before I could even file an anti-SLAPP motion, the SLAPPback provision does not apply—and now part of Musk's anti-SLAPP motion argues that my pursuing a malicious prosecution claim is purportedly an attempt to limit his ability to petition government. This is the very outcome the California legislature was trying to avoid with the SLAPPback provision, but it was drafted so narrowly that it rarely applies.
In my view, the biggest problem with anti-SLAPP laws in general is not that this clause or that clause needs refinement. It's that even after years of them being on the books in jurisdictions where major media publications are located, most notably California and New York, they have not succeeded in convincing media lawyers that publications and networks can be fearless. Today, mainstream media publications, e.g. The Washington Post, The Los Angeles Times, ABC News, etc., are seemingly more terrified than ever of allowing a single word in print that might offend powerful people. Donald Trump in particular is known for his habit of filing frivolous, and one might even argue vexatious, libel lawsuits. If media attorneys viewed anti-SLAPP laws as effective, at least prior to Trump's re-election, they would have had nothing to fear from such a threat. Yet I have spoken repeatedly to journalists at multiple publications in California and New York who have expressed newsroom concerns about getting sued for defamation that seem more acute than ever.
Perhaps it's because the threats seem more acute than ever. Elon Musk is just one billionaire and he's been using anti-SLAPP statutes and SLAPP lawsuits regularly to intimidate his adversaries of record in ongoing court cases, media outlets, non-profit organizations, and people you've never heard of who are now too afraid to come forward with valid legal claims—and rightly so. They risk losing everything, while Musk risks almost nothing as a proportion of his vast wealth. And he is not the only billionaire who has figured out how to game the system.
I believe, as I know others do, that a federal anti-SLAPP statute would be a major step forward. Defamation law—the simple threat of a libel lawsuit—has historically chilled speech. Yet our attempt to stymie that threat has wrapped back around on itself. Chilling effects that used to originate from one part of state law are now unintentionally emerging from other parts, and an ineffective federal "fix" could cement that worrisome dynamic for some time. Enthusiasm for forward momentum—and there has been real progress thanks to Congressman Raskin and Senator Wyden—should not blind us to real problems with and limitations of what has become the standard remedy. Free speech is a tricky subject even in the best of times, and it will require a lot of effort to balance equities and get it right, especially now. Because in a nation with a million lawyers, Elon Musk, a Nazi-saluting narcissistic sociopath taking orders from Vladimir Putin and Xi Jinping, just made it to the White House.
1 Neither Trump nor Musk is constitutionally eligible to be President.
2 I'm fairly certain that Musk was already familiar with PlainSite at that point from its Twitter account, which he later suspended.
3 Unrelated to the anti-SLAPP motion, Judge Donato dismissed my federal securities claims on the basis that the Private Securities Litigation Reform Act of 1995 (PSLRA) applied, which I appealed. After the appeal was fully briefed, he changed his mind about the PSLRA, but neglected to mention it on the docket in my case. The United States Court of Appeals for the Ninth Circuit upheld Donato’s ruling, ignoring his change of heart.
4 Over centuries, lawyers have deliberately constructed a justice system that serves their economic interests first and foremost, and then to literally add insult to injury, they ridicule those who cannot afford their often-mediocre, overpriced services by proclaiming that "one who represents himself has a fool for a client."
5 Some will inevitably see no abuse inherent in this pattern of conduct, arguing that Musk is simply taking advantage of the legal remedies available to any person, or that Musk is a target due to his fame and wealth. This myopic view ignores the commonalities between the types of Musk's targets, as well as the fact that none of the lawsuits against him involved are actually frivolous—which is why he keeps losing. Even if he manages to pull off a win in the future through forum shopping or deceiving a judge about his history, it will make his conduct no less abusive.