Elon Musk’s attempt to silence his critics will be heard by one of America’s worst judges

Elon Musk laughing.
Elon Musk laughs during an in-conversation event with Britain’s Prime Minister Rishi Sunak in London on November 2, 2023, following the UK Artificial Intelligence Safety Summit. | Kirsty Wigglesworth/POOL/AFP via Getty Images

Reed O’Connor is one of the most unapologetic Republican partisans in the entire federal judiciary.

Twitter (the company that Elon Musk insists upon calling “X”) appears to be hemorrhaging advertisers. And it’s responded to this lost revenue by suing a prominent critic of the increasingly right-wing social media website: Media Matters, a left-leaning organization known for criticizing conservative and GOP-aligned outlets.

Ordinarily, this lawsuit would be the kind of stunt that legal observers could probably ignore. The First Amendment provides extraordinarily robust protections against lawsuits that target speech.

But the case was just reassigned to Judge Reed O’Connor, a notoriously partisan former Republican Senate staffer, known for handing down poorly reasoned opinions giving major policy victories to right-wing litigants. O’Connor is frequently reversed by the Supreme Court, even though this Court is also quite conservative.

In fairness, Media Matters does have some tools it can use to mitigate O’Connor’s ability to shape the outcome of this lawsuit — most significantly, it can demand that the case be heard by a jury. But trial judges have a great deal of authority to manipulate who sits on a jury and what evidence that jury sees. And judges, not juries, decide legal questions such as whether Twitter’s lawsuit is barred by the First Amendment.

Thus Twitter’s suit, known as X v. Media Matters, is now a potentially very expensive threat to Media Matters. O’Connor’s long record of handing down dubiously reasoned decisions benefitting right-wing litigants and causes suggests that he could do the same in the Media Matters lawsuit.

Worse, O’Connor’s decisions appeal to the United States Court of Appeals for the Fifth Circuit, a far-right court dominated by Trump appointees and other MAGA loyalists who share O’Connor’s penchant for manipulating the law to achieve right-wing results. So, even if Media Matters ultimately prevails in this lawsuit, it could be forced to spend hundreds of thousands of dollars in legal bills litigating this case before some of the most partisan judges in the country, before the case is ultimately appealed to the Supreme Court.

And, if Twitter’s attempt to haul one of its critics before a partisan tribunal succeeds, copycat lawsuits targeting other left-leaning media outlets could soon follow. That’s because federal courts in Texas (including O’Connor’s court) give plaintiffs an unusual amount of control over which judge will hear their case. In many cases, it is possible for litigants to choose the specific judge that will preside over their lawsuit.

So, if this suit against Media Matters succeeds, other wealthy individuals who wish to bring down left-leaning media outlets will likely be able to recreate Twitter’s success.

The Media Matters lawsuit, in other words, should frighten anyone who works in media or politics — and anyone who cares about free speech. If Twitter can call upon highly partisan judges like O’Connor to immiserate its critics, so can other prominent figures on the political right. And even if those lawsuits ultimately fail in the Supreme Court, left-leaning media outlets could be hit with legal bills that will drain their funds as surely as a loss in court.

So what is this lawsuit about?

The suit arises out of a brief piece that Media Matters published on its website on November 16, headlined “As Musk endorses antisemitic conspiracy theory, X has been placing ads for Apple, Bravo, IBM, Oracle, and Xfinity next to pro-Nazi content.”

As that headline suggests, Media Matters ran its piece shortly after Musk seemed to endorse the antisemitic idea that “Jewish communities” support “hatred against whites,” and that Jewish Americans are somehow to blame for “hordes of minorities” immigrating to the United States.

The Media Matters piece at the heart of Twitter’s lawsuit against it is brief. It notes that Twitter’s nominal CEO, Linda Yaccarino, has encouraged companies to advertise on Twitter by claiming that “brands are now ‘protected from the risk of being next to’ potentially toxic content.” Media Matters sought to rebut that claim by publishing several screenshots of ads appearing on Twitter next to content touting Adolf Hitler or Nazis.

A tweet reading “What people think a spiritual awakening is like vs what it’s actually like.” Below the text is first a photo of a woman doing yoga in a peaceful environment, followed by a photo of Hitler other Nazis.
Media Matters
One of several Twitter screenshots, published by Media Matters, that shows an advertisement appearing next to Nazi content.

In its complaint against Media Matters, Twitter admits that these juxtapositions between Twitter’s advertisers and Nazis did occur. But it claims that they are unrepresentative of what most users would see on Twitter.

The gravamen of Twitter’s complaint is that Media Matters allegedly “manufactured side-by-side images depicting advertisers posts … beside Neo-Nazi and white-nationalist fringe content.” Twitter claims that Media Matters created a Twitter account that “exclusively followed a small subset of users consisting entirely of accounts in one of two categories: those known to produce extreme, fringe content, and accounts owned by [Twitter’s] big-name advertisers.”

Twitter claims that Media Matters should compensate it for lost ad revenue, that it should pay Twitter’s attorneys fees, and that O’Connor should order Media Matters to “immediately delete, take down, or otherwise remove” the article containing the screenshots.

Realistically, Twitter would struggle to win such a lawsuit even if it could prove that Media Matters made false statements in the contested piece. The First Amendment gives media organizations extremely strong protections against defamation lawsuits seeking to silence that organization. To overcome the First Amendment, Twitter would have to show that Media Matters made false claims about Twitter “with knowledge that it was false or with reckless disregard of whether it was false or not.”

That’s a tough bar to clear in any defamation lawsuit. And it’s an especially tough bar because Twitter doesn’t actually claim that the Media Matters piece included false screenshots. Instead, it claims that most Twitter users will not see advertisements next to pictures of Hitler.

But, in Reed O’Connor’s courtroom, the law often takes a back seat to right-wing interests.

Reed O’Connor is too right-wing even for other right-wing judges

O’Connor is probably best known for a 2018 decision attempting to repeal the Affordable Care Act in its entirety. That decision was widely criticized even by conservative critics of Obamacare. The Wall Street Journal’s editorial board labeled O’Connor’s decision the “Texas Obamacare Blunder.” Yuval Levin, a prominent conservative policy wonk, wrote in the National Review that O’Connor’s decision “doesn’t even merit being called silly. It’s ridiculous.”

The Supreme Court eventually tossed out O’Connor’s ruling in a 7-2 decision holding that the far-right judge didn’t even have jurisdiction over the case to begin with.

The Court’s Obamacare decision, moreover, is one of a series of rulings disagreeing with O’Connor’s creative interpretations of the law. Last August, for example, the Supreme Court blocked a decision by O’Connor that, among other things, would have allowed many gun buyers to evade background checks required by federal law. After a defiant O’Connor partially reinstated his guns decision, the Supreme Court smacked him down again in October.

Similarly, in early 2022, O’Connor ruled that several military servicemembers could defy a direct order to take the Covid-19 vaccine. The Supreme Court had to intervene again, with Justice Brett Kavanaugh writing that O’Connor wrongly inserted himself “into the Navy’s chain of command, overriding military commanders’ professional military judgments.”

O’Connor also has an anti-LGBTQ record.

There was a brief period, shortly before the Supreme Court ruled in Obergefell v. Hodges (2015) that all 50 states must recognize same-sex marriages, when many states and the federal government did recognize these marriages. During this period, the Obama administration issued a rule permitting same-sex married couples who lived in states that did not recognize their marriage to take leave from work under the Family Medical Leave Act. O’Connor blocked this rule in a March 2015 order.

Notably, in order to reach this conclusion, O’Connor had to determine that the parties challenging this rule had a “substantial likelihood of success on the merits.” One month after O’Connor handed down his anti-LGBTQ decision, the Supreme Court handed down Obergefell — a clear rebuttal to O’Connor’s legal conclusion.

So O’Connor has an extensive record of disregarding the law and precedent to benefit right-wing litigants. And now he’s hearing a case brought by an increasingly right-wing media company against a well-known left-leaning organization.

Media Matters cannot possibly expect to receive a fair hearing in this highly partisan judge’s courtroom.

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