Exploring Potential Outcomes of Elon Musk’s Defamation Case

The defamation lawsuit recently filed against Elon Musk could potentially challenge the boundaries of the unfiltered and aggressive nature of arguments on social media, where comments and accusations often lack substantial evidence.

The trial revolves around the events of last June, when two far-right groups, the Proud Boys and the Rose City Nationalists, planned to protest Pride Night events in Portland but ended up fighting each other. During the battle, two members of Rose City were revealed. A Twitter user posted a photo of one of them alongside a photo of a student named Ben Brody. “Very strange,” Musk wrote back. Brody is now suing Musk for verifying the original tweet and damaging his reputation, according to the complaint.

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Brody was not part of the fight or either group; in fact, he wasn’t even present in Portland that night. Other users quickly corrected the misidentification, but the lawsuit claims the billionaire doubled down.

If the allegations are true, this is nasty, reckless stuff that clearly damages Brody’s reputation — and reputation, though notoriously difficult to define, is something that defamation law protects. But social media is often a mean and reckless forum where offense and invention go hand in hand. For this reason, courts generally exercise caution when faced with claims that someone has been defamed online.

As news reports keep reminding us, Musk won a similar lawsuit in 2019 when a jury dismissed a claim that he had defamed the plaintiff by calling him a “beast dude” on Twitter (as it was then known). Musk could reuse a successful strategy from that earlier lawsuit based on a basic truth: We all understand that when arguing online, otherwise sane people often post without thinking, a failure that can lead them to say stupid, hurtful, and insulting things. Therefore, courts have long held that social media “hyperbole” must be read “in the context of the entire conversation.”

For example, in 2021, a federal court dismissed a claim that a patient defamed a doctor by writing on Yelp that he was not a “REAL and legitimate doctor.” The statement was false, the plaintiff argued, because he had the proper authorization. But “taken in context,” the judge wrote, the defendant’s claims “are unrealizable figurative and hyperbolic statements.”

Another federal case decided that year involved online statements that accused the defendant of being a racist and a “snake oil salesman with nothing to sell.” The court dismissed the defamation claim because “obvious statements of fact may have the character of statements of opinion” when made “in open Internet forums.”

And just last August, another federal court dismissed a defamation lawsuit stemming from an Instagram accusation. The judge’s decision was again based on the notion that social media users assume they are being presented with opinions rather than facts.

The cases go on and on. They suggest a general view among judges that language that might be defamatory in other contexts is not necessarily defamatory on social media. When users vent their emotions, they don’t pay much attention to the “truth” of their words.

None of this should be taken to mean that a social media defamation claim cannot be won; these and many other cases suggest that plaintiffs are in for a tough time.

Which brings us back to the latest lawsuits against Musk. The original “very odd” tweet seems like a weak reed on which to hang a defamation claim. Instead, the suit is more likely to be triggered by whether Musk actually doubled down after users alerted him that Brody had been misidentified.

That second tweet responded to the claim that the undisclosed brawl was “suspectedly staged,” meaning agent provocateur. Musk responded: “It looks like one is a college student (who wants to join the board) and the other is possibly a member of Antifa, but still a likely false flag situation.” The complaint states that users linked this post to an earlier one, and thus rightly assumed Musk was talking about Brody, even after a flood of evidence that he was not the extremist in the photo. That could add to Musk’s challenge. It’s one thing to make an accusation in the heat of the moment; it’s something else to repeat it when faced with overwhelming evidence of falsity.

I’m not saying that the jury will necessarily interpret Musk’s second Tweet as a complaint. The plaintiff faces enormous legal opposition. Few people read all the replies to their own posts, and Musk is probably “@” in as many tweets as anyone else in the world. (Literally.) So it’s likely he missed the corrections. Also, if the case survives a motion to dismiss — and if it hasn’t — the billionaire will no doubt testify that he wrote it in the heat of the moment and once again apologize on the witness stand.

If he does, it represents another truth of our age: Tweet fast, and you might end up regretting it in court.

More from Stephen L. Carter at Bloomberg Opinion:

• Harvard Business School May Struggle to Win Professor’s Lawsuit
• Televising Trump’s trials is a mistake
• How to justify affirmative action in the workplace

This column does not necessarily reflect the opinion of the editorial board or of Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist, professor of law at Yale University, and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

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