from the free-speech-matters dept

The Subtweet Defense Wins: Elon Musk Cleared In Defamation Case

A little over a year ago when cave diver Vern Unsworth sued Elon Musk for defamation, we noted that (unlike many defamation cases), it did not appear to be an out-and-out SLAPP case. That said, we noted that many of the claims in the lawsuit did not look to be about defamatory speech at all, and that would make much of the lawsuit an uphill battle. The part that appeared to be the most problematic for Musk, however, was the emails he had sent to Buzzfeed reporter Ryan Mac after the initial tweets, in which he made more detailed accusations, including what appeared to be factual statements implying deeper knowledge about Unsworth.

However, as the case played out, Unsworth dropped any defamation claims regarding the emails. It appears that Musk had hit back on those claims by suggesting that if they were defamatory, they were actually Buzzfeed defaming Unsworth, since it was Buzzfeed that had published Musk's quotes. Perhaps to avoid getting bogged down in that fight, Unsworth's legal team chose to focus just on the tweets, and not the email -- even though the email seemed to go closest to the line (if not over) of defamation. Musk's legal team still then asked for the Buzzfeed emails evidence to be excluded from any damages calculation, which the judge allowed. In the end, the focus was just on his tweets, and that allowed for a courtroom explanation of how insults fly freely on Twitter, suggesting that most people engaged on Twitter know better than to take random accusations and insults as factual statements.

In the end, the jury sided with Musk with the reasoning more or less being the "subtweet defense." Because Musk didn't directly name Unsworth in his tweets, they couldn't reach the high bar of defamation:

One juror told BuzzFeed News the decision came down to the notion that a reasonable person could not read Musk's "pedo guy" tweet and determine that it was associated with Unsworth. “The judge laid out five points for defamation as soon as we got to point two, which was about being acquainted [with the defamed person], we decided,” said Carl Shusterman, a Los Angeles attorney who served on the jury. “The people that read Musk's tweet wouldn’t have known who he was talking about.”

That... is actually a bit surprising. Because it was pretty clear who Musk was referring to with those tweets (and the fact that he doubled down later confirmed that). Still, on the whole this was a good thing for free speech and the 1st Amendment. Insults do fly pretty freely on Twitter, and it's good to see a jury recognizing that you shouldn't automatically accept any random insult as a factual statement about someone. Indeed, it seems reasonable to think that few, if any, people actually believed Musk's statements about Unsworth were true -- and rather assumed that Musk was just mouthing off without much self-control.