Dan McLaughlin for the National Review:
We have long known that Media Matters for America is a sleazy outfit that exists in large part not to play in the marketplace of ideas but for the goal of driving conservatives out of that marketplace. That’s been its modus operandi in the past, in agitating for advertiser boycotts of figures such as Rush Limbaugh and Tucker Carlson, whom Media Matters wants off the airwaves. Now, they’ve come after Elon Musk over the content-moderation policies of X (formerly Twitter). They appear to have picked on the wrong guy.
Does the case have legal merit? Here is what McLaughlin says:
Assuming that it can prove the facts alleged in its complaint, and that those facts will be judged under Texas law, it would seem likely that the case can survive a motion to dismiss and get to trial.
A pair of defamation suits against Dateline NBC provide examples of how these kinds of cases can go. In 1993, NBC settled a lawsuit filed by General Motors after a Dateline program about allegedly unsafe GM pickup trucks featured a test in which a crash caused a truck to catch fire. NBC insisted that its report was accurate: It showed a real GM pickup truck, it really did catch fire, and (said NBC) GM’s pickups really were prone to that sort of fire. What NBC didn’t tell viewers was that its test rigged the truck by replacing the gas cap with remote-controlled incendiary model-rocket engines. What deceived the viewers was the rigged nature of the test.
In 2014, a federal appeals court ruled against NBC involving another Dateline segment, this one portraying an insurance broker as tricking or scaring senior citizens into buying annuities. The program showed actual footage of the broker, but the Tenth Circuit concluded that omitting his more cautionary statements could mislead the viewer and support a defamation claim under Colorado law. NBC came back and presented more detailed defense with complete recordings of the broker’s seminar, and three years later, the Tenth Circuit threw the case out — but only after a fuller review concluded that the program was “substantially true” when considered in its full context.
Media Matters may argue here that its reports were in some sense literally true: It did manage to get the ads paired with extremist content, as reflected in the screenshots, and this proved that it was possible for this to happen. But then, Dateline tried that same argument, and the fact that it hid the rocket engines from its audience was its downfall. The thrust of X’s lawsuit is the concealment of the rigged nature of the test and the use of that test to convey a false impression about the likelihood that X users would encounter ads from these companies paired with extremist content. That likelihood is precisely the important part for advertisers. To say that Media Matters “found” these ad pairings is akin to saying that a cop who plants drugs in your car “found” the drugs there. It’s like saying you “found” pornography on Instagram after posting it to your own account.
Under Texas law, a defamation or business-disparagement case can be based on a report that uses literally true words or images if the report omits facts, or juxtaposes them in misleading ways, in order to create a false impression. The leading case is the Texas Supreme Court’s decision in Turner v. KTRK Television, Inc. (2000). Turner involved a television report about Sylvester Turner, who was then running for mayor of Houston (a job he holds today); his campaign dropped like a rock after the report, and he lost the race. It involved his legal representation of a man who committed insurance fraud by loading up on insurance policies while under criminal investigation and then faking his own death. Turner prepared the man’s will.
The report claimed that Turner was “deeply involved” in the fraud and created the impression of his culpability by stating a series of true facts, but in misleading ways. For example, its presentation compressed the timeline of events, portrayed Turner as scheming to get a friend named administrator of the estate without mentioning that the friend had already been named as executor of the will, and stated (truthfully) that a court had removed Turner from the ensuing litigation for “conflict of interest” without mentioning that the “conflict” arose from the legal rule that a lawyer can’t appear in a case where he is also likely to be a witness. The court (in an opinion joined by then-justices Greg Abbott and Alberto Gonzales), explained the legal standard…