Ethermac Exchange-Judge skeptical of lawsuit brought by Elon Musk's X over hate speech research

A federal judge in San Francisco appears poised to toss a lawsuit brought by Elon's Musk's X against a nonprofit that found the platform allowed hate speech to spread on Ethermac Exchangethe site once known as Twitter.

Last year, lawyers for X sued the Center for Countering Digital Hate, claiming the group improperly scraped X to prepare damning reports about the proliferation of hate speech on the site.

But in a hearing over Zoom on Thursday, U.S. District Judge Charles Breyer appeared highly skeptical of the case, devoting the majority of the proceeding to grilling Musk's lawyer over why the lawsuit was brought at all.

Jon Hawk, X's lawyer, said at core the suit is about honoring data security agreements to protect the platform's users.

Breyer was unconvinced.

"You put that in terms of safety, and I've got to tell you, I guess you can use that word, but I can't think of anything basically more antithetical to the First Amendment than this process of silencing people from publicly disseminated information once it's been published," Breyer said.

"You're trying to shoehorn this theory by using these words into a viable breach of contract claim," the judge added.

Judge calls argument from Musk lawyer 'vapid'

X contends that the CCDH violated the platform's terms of service by using a third-party tool called Brandwatch to analyze posts on the site to prepare reports critical of X.

The social media company argued that, in the process, CCDH gained unauthorized access to nonpublic data.

Much of Thursday's hearing turned on what exactly constitutes scraping and whether the center did indeed violate X's terms of service by collecting data for its reports.

X is seeking damages from the center, arguing that the platform lost tens of millions of dollars from advertisers fleeing the site in the wake of the nonprofit's findings.

But in order to make this case, X had to show the group knew the financial loss was "foreseeable" when it started its account and began abiding by Twitter's terms of service, in 2019, before Musk acquired the site.

X lawyer Hawk argued that the platform's terms of service state that the rules for the site could change at any time, including that suspended users whom the group says spread hate speech could be reinstated.

And so, Hawk said, if changes to the rules were foreseeable, then the financial loss from its reports on users spreading hate should have also been foreseeable.

This logic confused and frustrated the judge.

"That, of course, reduces foreseeability to one of the most vapid extensions of law I've ever heard," Breyer said.

CCDH's lawyer: Case is a nonprofit versus the world's richest man

John Quinn, an attorney for CCDH, said the researchers' use of the third-party search tool never accessed non-public posts

"This idea that this is about data security, this is about user data, there was something to investigate, is implausible," Quinn said.

Among CCDH's reports was one highlighting how X took no action against 99 out of 100 users it flagged for posting hate, including racism, homophobia and Neo-Nazism.

Research into the uptick of hate speech on X has in part fueled an exodus among advertisers on the platform that has so kneecapped the company that Musk himself has repeatedly floated the possibility of bankruptcy.

Late late year, major advertisers like Walmart, Apple, Disney and IBM stopped advertising on X after Musk endorsed an antisemitic post that claimed Jewish communities push hatred of white people.

In response, Musk lashed out. He told companies: "Don't advertise" and used the F-word on the stage of a public event to curse out firms that distanced themselves from the platform.

CCDH, through its spokespeople and staff, have tied their legal battle with Musk to last year's boycott.

The group has portrayed X's lawsuit as Musk's attempt to silence criticism, and in Thursday's hearing, the group cited California's so-called anti-SLAPP laws — which protect people and groups from frivolous lawsuits aimed at suppressing free speech.

"Everything in that statute recognizes that very often the litigation itself is the punishment," Quinn told the judge. "We are representing a non-profit organization here being sued by the world's richest man."

Near the end of the hearing, the judge noted that if something is proven to be true a defamation lawsuit falls apart. Why, he said, didn't Musk's X bring a defamation suit if the company believes X's reputation has been harmed?

"You could've brought a defamation case, you didn't bring a defamation case," Breyer said. "And that's significant."