from the what-free-speech? dept

Elon Musk is once again threatening to sue over speech he dislikes — this time, over factual headlines about a deadly explosion involving a Tesla Cybertruck. But not liking how a story is framed doesn’t make it defamatory. For a statement to be defamatory, it must be false, damaging, and published with “reckless disregard for the truth” (effectively meaning “knowing it was false when you decided to publish”). None of that applies here.

Merely unflattering portrayals, or a factual framing that some feel is “misleading” is not defamatory.

Musk’s legal threats over these headlines are not just baseless, but dangerous. They show a disregard for free speech and an attempt to intimidate the press. And unfortunately, he’s not alone in pushing this censorial theory.

Back in 2020, you may recall that we criticized Larry Lessig for trying to make what he called “Clickbait Defamation” into a thing. His argument was that a fully truthful headline that is framed to imply something he felt was unfair should be considered defamatory. That, of course, is not how defamation actually works. Lessig eventually dropped his lawsuit after the NY Times changed the headline he disliked, but it appears that others are now picking up on this theory, with Elon Musk leading the charge.

As you have likely heard, yesterday, a US Army special forces operations sergeant allegedly drove a rented Tesla Cybertruck full of explosives/fireworks in the bed, and parked it in front of the Trump Hotel in Las Vegas, where the explosives in the trunk were then detonated, killing the driver and injuring a few people nearby.

As with many breaking news stories, the details of the story were not known at first, with the salient facts at the beginning being (1) Trump Hotel in Vegas, (2) Tesla Cybertruck, and (3) explosion.

Given that there have been multiple stories in the past year of Cybertrucks catching fire, including one from just a few days ago, many people initially wondered if this was just another case of that happening. Others, noting the close relationship between Donald Trump and Elon Musk suggested that the imagery of a burning Cybertruck in front of the Trump Hotel worked as a metaphor for world news, but also suggested something more deliberate. Investigators are still working out the details.

But, either way, including Cybertruck and explosion in a headline is totally factual. Yet, Elon Musk is suggesting that he might sue over such headlines:

But, for there to be actual defamation, there needs to be a false statement of fact (and, likely, published knowing or deeply suspecting it was false). Nothing in the headline: “Tesla Cybertruck explosion in front of Trump hotel in Las Vegas leaves 1 dead, 7 injured” is false. It’s all factual.

Senator Mike Lee, who once presented himself as a supporter of free speech and the First Amendment, also jumped into the fray suggesting the NYT v. Sullivan’s “actual malice” standard should fall, allowing Musk to sue over similar headlines:

I mean, first of all, Elon Musk isn’t even mentioned, so it’s difficult to say that this would be defamation against Elon. Second, that was the original AP headline, right after the event occurred, when that was basically all that was known: a Cybertruck did, indeed, catch fire outside of the Trump Hotel. At that moment it wasn’t even known that the bed was full of explosive materials.

But also, everything in there is factual.

And, yes, you can argue that the eventual framing is misleading or even unfair. But that’s how free speech works. There are tons of headlines that people feel are misleading or unfair. I call them out, and I also get accused of misleading headlines. That’s how free speech works. People sometimes don’t like the way other people frame things or title things.

But none of that is defamatory.

Indeed, if Mike Lee is so concerned about the use of the passive voice in headlines, when will we see him claiming that the traditional passive voice of “police-involved shooting” is defamatory as well?

Some could argue (and a few people did yell at me on Bluesky about this!) that other incidents involving cars, including the attack in New Orleans the same day, didn’t focus on the model of the car involved (a Ford F-150 Lightning, if you’re wondering).

But that’s understandable. Again, before anyone knew the details of what happened in Vegas, all that was known were the three simple facts that were reported in those headlines. Furthermore, the make and model of the car actually was perfectly newsworthy in this story because of Musk’s close association with Trump, which certainly suggested there may have been a connection worth mentioning.

That wasn’t true in the New Orleans case (though certainly some news stories talked about the Ford truck and how heavy it was, likely contributing to the damage caused).

Either way, this is yet another case where the self-described “free speech absolutist” Elon Musk seems to be threatening legal action over speech he dislikes, which isn’t even in the same zip code as defamation.

Whether or not he actually sues, it suggests an intimidation stance: if you don’t cover stories in a way that makes me look good, I may sue you and drag you into a costly and resource-intensive lawsuit, no matter how preposterous the claims may be.

Actual free speech means that public figures, like Elon Musk, need to have a thicker skin. They need to recognize that not everyone will publish things that are flattering, and sometimes you just have to suck it up and take it. Or use the fact that you have one of the world’s largest megaphones to… use your own voice to respond. Rather than threatening legal recourse. That’s how free speech works.

This is also why we need stronger anti-SLAPP laws in every state and a federal anti-SLAPP law. Because we know that the rich and powerful have no problem abusing the judicial system to burden the media with vexatious SLAPP suits as a method of intimidation.

Filed Under: 1st amendment, clickbait defamation, defamation, donald trump, elon musk, framing, free speech, las vegas, lawsuits, mike lee

Companies: tesla