Twitter (the company that Elon Musk emphatically calls “X”) seems to be hemorrhaging advertisers. And in response to these lost revenues, the company has sued a prominent critic of the increasingly right-wing social media website: Media Matters, a left-wing organization known for criticizing conservative and Republican media.
Normally, this lawsuit would be the kind of stunt that legal observers could probably ignore. The First Amendment provides extremely robust protection against lawsuits targeting speech.
But the cause was just reassigned to Judge Reed O’Connor, a notoriously partisan former Republican Senate staffer known for issuing poorly informed opinions that deliver major policy victories for right-wing litigants. O’Connor is regularly reversed by the Supreme Court, even though this Court is also quite conservative.
To be fair, Media Matters has a number of tools it can use to limit O’Connor’s ability to shape the outcome of this lawsuit – most importantly, it can demand that the case be heard by a jury. But judges have a lot of authority to manipulate who sits on a jury and what evidence the jury sees. And judges, not juries, will decide legal questions such as whether Twitter’s lawsuit is barred by the First Amendment.
So 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 making dubiously motivated decisions in favor of right-wing litigants and lawsuits suggests he could do the same in the Media matters court case.
Worse, O’Connor’s decisions appeal to the U.S. 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 may be forced to spend hundreds of thousands of dollars in legal bills litigating this case before some of the country’s most partisan judges before the case is ultimately appealed at the Supreme Court. .
And if Twitter’s attempt to drag one of its critics before a partisan tribunal succeeds, copycat lawsuits against other left-wing media 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 who will preside over their lawsuit.
So if this lawsuit against Media Matters is successful, other wealthy individuals looking to take down left-wing media outlets will likely be able to emulate Twitter’s success.
The Media matters In other words, a lawsuit should terrify anyone who works in the media or politics, and anyone who cares about freedom of expression. If Twitter can rely on highly partisan judges like O’Connor to embarrass its critics, so can other prominent figures on the political right. And even if these lawsuits ultimately fail at the Supreme Court, left-wing media outlets could be hit with legal bills that will take away their money as surely as a loss in court.
So what is this lawsuit about?
The lawsuit stems from a short piece that Media Matters published on its website on November 16, headlined: ‘While Musk Endorses Anti-Semitic Conspiracy Theory, contents. .”
As that headline suggests, Media Matters published its piece shortly after Musk appeared to endorse the anti-Semitic idea that “Jewish communities” support “hatred of whites,” and that Jewish Americans are somehow responsible for “hordes of minorities” rushing to emigrate to the United States. .
The Media Matters piece at the heart of Twitter’s lawsuit against it is short. 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 standing next to’ potentially toxic content.” Media Matters attempted to refute that claim by publishing several screenshots of ads that appeared on Twitter next to content promoting Adolf Hitler or Nazis.
In its complaint against Media Matters, Twitter admits that these contradictions between Twitter advertisers and Nazis did indeed occur. But it claims they are not representative of what most users would see on Twitter.
The focus of Twitter’s complaint is that Media Matters allegedly “crafted images side-by-side with images of advertiser messages… alongside neo-Nazi and white nationalist fringe content.” Twitter claims that Media Matters created a Twitter account that “followed only 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] major advertisers.”
Twitter claims that Media Matters must compensate it for lost advertising revenue, that it must pay Twitter’s attorneys’ fees, and that O’Connor must order Media Matters to “immediately delete, delete or otherwise dispose of” 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 disputed piece. The First Amendment gives media organizations extremely strong protection against defamation lawsuits that attempt to silence that organization. To avoid 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 for whether it was false or not.”
That’s a difficult barrier to break in a defamation lawsuit. And it’s an especially difficult bar because Twitter doesn’t actually claim that the Media Matters piece contained fake screenshots. Instead, it claims that most Twitter users won’t see ads next to photos 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 that sought to repeal the Affordable Care Act in its entirety. That decision was widely criticized, even by conservative critics of Obamacare. The Wall Street Journal editorial board called O’Connor’s decision the “Texas Obamacare Blunder.” Yuval Levin, a prominent conservative policymaker, wrote in the National Review that O’Connor’s decision “isn’t even worth calling stupid. It is ridiculous.”
The Supreme Court ultimately overturned O’Connor’s ruling in a 7-2 decision stating that the far-right judge didn’t even have jurisdiction over the case to begin with.
Moreover, the Court’s Obamacare decision is one of a series of rulings that contradict O’Connor’s creative interpretations of the law. Last August, for example, the Supreme Court blocked an O’Connor decision that, among other things, would have allowed many gun buyers to avoid background checks required by federal law. After a defiant O’Connor partially reinstated his gun decision, the Supreme Court struck him down again in October.
Similarly, in early 2022, O’Connor ruled that several military service members could ignore a direct order to take the Covid-19 vaccine. The Supreme Court had to intervene again, with Justice Brett Kavanaugh writing that O’Connor had improperly inserted himself “into the Navy’s chain of command, overruling the professional military judgments of military commanders.”
O’Connor also has an anti-LGBTQ record.
There was a brief period, shortly before the Supreme Court ruled Obergefell vs. Hodges (2015) that all fifty states must recognize same-sex marriage, although many states and the federal government did recognize these marriages. During this period, the Obama administration issued a rule allowing married same-sex couples living in states that did not recognize their marriage to take a leave of absence from work under the Family Medical Leave Act. O’Connor blocked this rule in a March 2015 order.
In reaching this conclusion, O’Connor had to specifically establish that the parties challenging this rule had a “substantial likelihood of success on the merits.” A month after O’Connor made his anti-LGBTQ ruling, the Supreme Court ruled Obergefell – a clear refutation of O’Connor’s legal conclusion.
O’Connor thus has an extensive record of ignoring the law and precedent in favor of right-wing litigants. And now he’s hearing a case brought by an increasingly right-wing media company against a well-known left-wing organization.
Media Matters cannot possibly expect fair treatment in the courtroom of this highly partisan judge.