from the what-free-speech? dept
Elon Musk has once again threatened to sue for a speech he didn’t like – this time, over headlines about a deadly explosion involving a Tesla Cybertruck. But not liking how the story is framed does not constitute defamation. For a statement to be defamatory, it must be false, defamatory, and published with “reckless disregard for the truth” (effectively meaning “knowing it is false when you decide to publish it”). None of this applies here.
Poor portrayal, or factual framing that some feel is “misleading” is not defamation.
Musk’s legal threats over the title are not only pointless, they’re dangerous. They show a disregard for freedom of speech and an attempt to intimidate the press. And unfortunately, they are not the only ones pushing this censorial theory.
Back in 2020, you may remember that we criticized Larry Lessig for trying to make what he called “Clickbait Defamation” a thing. The argument is that correct headlines framed to reflect what is perceived to be unfair should be considered defamatory. That, of course, is not how true slander works. Lessig eventually dropped his lawsuit after the NY Times changed the headline he didn’t like, but it appears that others are now picking up on this theory, with Elon Musk leading the charge.
As you may have heard, yesterday, a US Army special forces operations sergeant allegedly drove a rented Tesla Cybertruck loaded with explosives/fireworks in the bed, and parked it in front of the Trump Hotel in Las Vegas, where there were explosives in the trunk. then exploded, killing the driver and injuring several bystanders.
As with many news stories, the details of the story are not known at first, with the main facts at first being (1) the Trump Hotel in Vegas, (2) the Tesla Cybertruck, and (3) the explosion.
Since there have been so many stories in the past year about Cybertrucks catching fire, including one just a few days ago, many people thought this was just another incident. Another, noting the close relationship between Donald Trump and Elon Musk suggests that the image of the Cybertruck burning in front of the Trump Hotel could be used as a metaphor for world news, but also suggests something more deliberate. Investigators are still working on the details.
But, either way, the inclusion of Cybertruck and the explosion in the title is factual. However, Elon Musk suggests that he can claim the title:
But, for there in fact defamation, there must be a false statement of fact (and, possibly, published knowing or previously suspecting that it is false). Nothing in the headline: “Tesla Cybertruck explosion in front of Trump hotel in Las Vegas leaves 1 dead, 7 injured” is fake. 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 had to fall, allowing Musk to claim the same headlines:
I mean, first of all, Elon Musk wasn’t mentioned, so it’s hard to say that this would be defamation of Elon. Second, this is the original AP headline, right after the event happened, when most everyone knows: The Cybertruck actually caught fire outside the Trump Hotel. It was not known at the time that the bed was full of explosives.
But also, everything in there is real.
And, yes, you can argue that the framing is ultimately misleading or even unfair. But free speech methods work. There are many titles that people feel are wrong or unfair. I called him out, and I also got accused of misleading the title. That’s how free speech works. Sometimes people don’t like the way other people make things or headlines.
But there is no slander.
Indeed, if Mike Lee is so concerned about the use of the passive voice in headlines, when are we going to see him claim that the traditional passive voice “police-involved shooting” is also defamatory?
Some may argue (and some people shouted at me on Bluesky about this!) that other incidents involving cars, including the attack in New Orleans on the same day, did not focus on the car model involved (Ford F-). 150 Lightning, if you were wondering).
But that’s understandable. Again, before anyone knew the details of what happened in Vegas, all they knew were three simple facts reported in the headlines. Furthermore, the make and model of the car is very good in this story because of Musk’s close association with Trump, which certainly suggests that there is a relationship to be told.
That was not true in the New Orleans case (although some news stories talked about the Ford truck and how heavy it was, it probably caused the damage).
Either way, it’s another case of so-called “free speech absolutist” Elon Musk appearing to threaten legal action over speech he doesn’t like, which isn’t in the same zip code as defamation.
Whether or not they actually demand it, it shows an attitude of intimidation: if you don’t cover the story in a way that makes me look good, I can sue you and drag you into costly and resource-intensive lawsuits, no matter how preposterous the claims may be.
Real free speech means that public figures, like Elon Musk, need to have a thicker skin. They need to understand that not everyone is going to publish something that pleases them, and sometimes you just have to suck it up and take it. Or use the fact that you have one of the biggest megaphones in the world to… use your own voice to respond. Instead of threatening legal recourse. That’s how free speech works.
This is also why we need stronger anti-SLAPP laws in every state and federal anti-SLAPP laws. Because we know that the rich and powerful have no problem blaming the judicial system for burdening the media with a fun SLAPP suit as a form of intimidation.
Filed Under: 1st amendment, clickbait defamation, defamation, donald trump, elon musk, framing, free speech, las vegas, lawsuits, mike lee
Company: Tesla
