The courts must decide between Elon Musk and the First Amendment
On Feb. 3, while Elon Musk was “feeding USAID into the wood chipper,” the names of six of his DOGE helpers were posted on X. Musk, a self-described free speech crusader, asserted on X, “You have committed a crime,” and the user’s account was suspended.
To be clear, posting the names of public employees on social media is protected by the First Amendment. But the next day, President Trump’s newly appointed federal prosecutor in Washington said in a letter to Musk that his office would investigate anyone who “impedes your work or threatens your people.”
Musk’s efforts to silence those whose speech he dislikes are not limited to posting to his 200 million followers on the social media platform he owns. Increasingly, Musk is using the courts to punish his critics.
On two recent occasions, X sued journalists and researchers for asserting that extremist content had been appearing on the platform with much greater frequency since Musk bought it. X also sued advertisers for cutting ties with the company because of the proliferation of extremist content.
As Musk’s power and influence grow — he now heads Trump’s Department of Government Efficiency, which is feverishly dismantling core federal programs and agencies — there is a risk he will make even greater use of the courts to stifle dissent and undermine democratic discourse. The courts need to ensure that these kinds of cases are tossed out quickly.
Most striking is Musk’s legal war against Media Matters, a progressive watchdog group. In 2023, Media Matters published a report stating that ads on X (formerly known as Twitter) were appearing alongside pro-Nazi content and that Musk had used his X account to endorse an antisemitic conspiracy theory.
Musk lashed out by calling Media Matters an “evil propaganda machine” that he hopes will “go to hell.” He didn’t stop there — he threatened a "thermonuclear lawsuit" against Media Matters and its donors.
It was not an idle threat. Two days later, X sued Media Matters in federal court in Texas, alleging that its reporting misrepresented the typical experience on X “with the intention of harming X and its business.”
In a disturbing twist, Musk is using the lawsuit to find out the names and street addresses of the organization's donors. That data is highly sensitive and has little if any relevance to the lawsuit. It is also particularly ironic, in light of Musk’s threats over the release of the names of his DOGE helpers, who are public employees, not private citizens.
Even so, the judge overseeing the case ordered Media Matters to turn over the information; Media Matters is appealing the order.
This case goes beyond typical corporate hardball tactics. The stakes are enormous because it is critically important for the public to understand how social media platforms control what users post. Musk’s tactics, particularly if adopted by other tech giants, may effectively silence the watchdog organizations that do this essential work.
It should probably come as no surprise that what Musk does, Trump amplifies. The day after Musk threatened his "thermonuclear" lawsuit, Stephen Miller, an official in the first Trump administration and now the White House deputy chief of staff for policy, urged conservative state attorneys general to investigate Media Matters.
Musk quickly endorsed the idea. Within hours Missouri Attorney General Andrew Bailey (R) and Texas Attorney General Ken Paxton (R) announced investigations. They too are seeking Media Matters donor records, among other internal documents. A federal judge ruled that the state investigations violated the First Amendment.
Musk’s legal strategy is a direct assault on the First Amendment. Several months before suing Media Matters, X sued the Center for Countering Digital Hate and its donors after the organization published a report about ad revenue X was earning from previously banned neo-Nazi and white supremacist accounts that Musk had reinstated. The suit was quickly thrown out on First Amendment grounds.
In dismissing the case, the judge said X’s lawsuit was clearly aimed at “punishing defendants for their speech.” X has appealed that ruling. (My organization has filed an amicus brief in support of the Center for Countering Digital Hate, and a separate one in support of Media Matters.)
Musk’s expose-the-donors tactic has a disreputable pedigree. Its legal precedent comes from the 1950s, when Alabama’s attorney general sued the NAACP in state court and obtained a court order compelling the disclosure of its list of members in Alabama. The Supreme Court struck down the state court order as violating NAACP members’ freedom of association because releasing their names to the public would expose them to economic reprisals and physical violence.
While the contexts differ, Musk’s efforts similarly aim to intimidate and silence dissent through the threat of economic and social reprisals.
The chilling effect of his legal strategy is already evident. Last year, after the names of Media Matters’ largest donors were leaked online and reposted by Musk, X users responded with a torrent of abuse and harassment, calling for the donors to be arrested, tried for treason and given the death penalty. Unsurprisingly, donations to Media Matters decreased.
In short, Musk’s targeting of researchers and donors is proving to be an effective way to silence dissenting views.
With Musk’s growing power in Washington, we could see an escalation of coordinated legal and political efforts to intimidate his critics. The tools that defendants typically rely on to deter that kind of abuse may not stand a chance against people as rich and powerful as Musk.
We should try to find longer term solutions, but in the meantime, we need a federal judiciary that is willing to call out this kind of abuse.
Scott Wilkens is senior counsel at the Knight First Amendment Institute.
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