The Subtweet Defense Wins: Elon Musk Cleared In Defamation Case
from the free-speech-matters dept
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.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 1st amendment, defamation, elon musk, free speech, rhetorical hyperbole, ryan mac, subtweet, vernon unsworth
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
I just felt a disturbance in the farce
As if a thousand childish haters and braindead shorters cried out in childish jealous and were suddenly louder.
[ link to this | view in chronology ]
Elon’s not going to give you a Cybertruck because you kissed his ass, you know.
[ link to this | view in chronology ]
Re: I just felt a disturbance in the farce
Yes it is true that humans could stand to be a bit more civil. However if you try and force it. The bad behavior just goes "underground", and possibly gets worse.
IMHO the best way to deal with it is remaining calm, and possibly have someone the offender trusts explain things reasonably to them. Mean while the rest of us merely need to be adults, and tolerate the childish behavior of children, as childish behavior. Something to be pushed back against with appropriate measure (hint appropriate measures are related to the very actions being taken).
[ link to this | view in chronology ]
Re: Re: I just felt a disturbance in the farce
Ah the reduction of issues and missing the balance of power when it came to the musky asshole who has a massive following, claims someone a pedophile out of anger. I really love the twist and bends of free speech hard liners. /s for the last sentence
[ link to this | view in chronology ]
Re: I just a disturbed a zof when I flushed
Can you please at least try to use complete sentences when you amateurishly insult your betters.
[ link to this | view in chronology ]
Re: Zof accidentally hit my nerve
Short selling electric cars has been an American pastime for a hundred years, Bloomberg states that 23%, or $8.1 billion of Tesla's stock was making bank on Musk's electric car company failing in October of 2019.
GM locked up the whole idea with dozens of patents in the late 1980's, for example GM sued and stopped Toyota from building cars with "Their" battery chemistry in the 1990s. GM oddly failed to pay the $Chump-change to renew those patents in 2000. Ford built thousands of pure-electric PU trucks in the 1980's, no hint exist on the web of this FIRST electric "Ranger".
Edison built a Ni-Iron battery for Henry Ford's first production car, unknown persons burned Edison's battery lab down and Ford went with the IC engine, based on mash alcohol as fuel. Bob Lutz of BMW & Ford & Chrysler quit GM and bought Exide Battery in Los Angeles, scuttling their new iron-nickel (Edison type) battery and poisoning 100 square miles of homes in South Central with lead and cadmium. A report was released that said the company had dumped 1,500 pounds of lead into the L.A. River watershed over three previous years... AND THEN BOB LUTZ WALKED AWAY https://ktla.com/2019/05/07/lead-found-in-children-in-communities-near-former-exide-battery-plant-in -vernon-usc-study/
Disclaimer; I built a factory to manufacture one-a-month all-electric limousine in 1995 to shame the rich, as Musk shamed them with his $125,000 sports car ten years later. Ford and Hughes (GM) demanded three more years before selling their motor package, the Pittsburgh mining equipment OEMs promised me 15kva to 25kva brushless DC or three-phase-AC controller, oil or water-cooled, regenerative or not motor delivery... in six weeks!
[ link to this | view in chronology ]
Re: Re: Zof accidentally hit my nerve
I think your foil hat needs tightening down a little!
[ link to this | view in chronology ]
Re: Re: Re: the foil hit my nerve
The State of California had a public meeting on the mitigation of Exide's damage Tuesday night, 1316 S. Herbert Ave, 90023. I didn't see you there. Bob Lutz spent ten years trashing Musk and his e-car, reversing himself only this year.
I bought two Hughes/GM 15Kva 3ph AC oil-cooled motor-controller units, in their original wood crates from a surplus store in El Monte in 2000.
GM built 1,117 EV-1 in 1996-98 and sold zero of their e-market-killing suppositories. GM sold over 150 thousand Saturn coupe in the same years.
Did you check on Tesla short sellers, or anything i presented, or are you calling me a foot-lover?
I suggest "Climate of Concern"; Royal Dutch Shell (1991) https://www.youtube.com/watch?v=0VOWi8oVXmo to see how we are being sold short, or you can stuff your faraday hat up your arse.
[ link to this | view in chronology ]
Re: I just felt a disturbance in the farce
Merimac?
[ link to this | view in chronology ]
Unsworth shot himself in the foot
...by asking for $190M for something that was in the grey area between a rude insult and defamation.
If I were a juror, I'd have been inclined to award Unsworth a mostly-symbolic victory - a few thousand dollars - mainly to make him feel better after being picked on by a really famous guy who should know better. (The fact that Unsworth started the insult exchange for no good reason didn't work in his favor, but as a very public personality Musk should have been more careful.)
But when I saw Unsworth was looking for $190M, I lost all sympathy for him. He clearly was looking to cash in, not to be compensated fairly.
It wouldn't surprise me if some jurors thought the same way.
[ link to this | view in chronology ]
Re: Unsworth shot himself in the foot
Announcer: "We're sorry you didn't win the Libel Lottery gameshow. Our hostess has some lovely parting gifts for you, including a nice legal bill."
[ link to this | view in chronology ]
Re: Unsworth shot himself in the foot
On the one hand, I kind of understand that.
But, on the other hand - we have a perfectly innocent man who made a heat-of-the-moment comment about an area in which he was intimately involved and professionally expert, telling an arrogant publicity seeker to stay out of an operation that claimed the life of a similarly expert friend. In response to that, he was publicly attacked as a paedophile, had vile lies about him and his wife spread, was the target of a private investigation funded by Musk and ultimately only filed suit after being further publicly goaded with the implication that not suing meant he was admitting to being a paedophile.
If this was over a mere tweet, it would be excessive, but asking for a large payout from the billionaire bully who had so needlessly attacked him is not necessarily bad. Especially given that he would not have had direct knowledge of the US legal system and may have just been accepting whatever advice he got from his legal counsel.
'The fact that Unsworth started the insult exchange for no good reason"
For no good reason? The guy was trying to save lives that were immediately in peril, and knew that there wasn't a chance Musk's vanity project would have worked. He might have been a little harsh, but there was definitely a good reason to tell Musk to leave it to the professionals.
[ link to this | view in chronology ]
Re: Re: Unsworth shot himself in the foot
I think we all owe each other a little benefit of the doubt, and a little charity re imputing motives. (At least, the world would be a nicer place if we did that.)
Yes, Musk loves publicity. But I'm fairly sure he also thought his submarine thing might really work, and he surely spent a lot of money and effort on it. There are worse motives than wanting to reap glory from saving the lives of kids.
Telling the guy to go away and "leave it to the professionals" - fine.
Telling him to shove it up his ass, in a very public way - unjustified insult.
As I said, Musk's "pedo guy" response was way over the top - and as a celebrity he ought to know better and control himself - but still understandable as an emotional reaction to being insulted for trying to help (however impractically).
I'm just imagining what was going on in the mind of the jurors. I think Unsworth and his lawyer made a big tactical error in asking for $190M. If he'd asked for $190k, he might have got it.
[ link to this | view in chronology ]
LIke responding to a 'fuck you' with a gun
As I said, Musk's "pedo guy" response was way over the top - and as a celebrity he ought to know better and control himself - but still understandable as an emotional reaction to being insulted for trying to help (however impractically).
It really wasn't though. 'I was only trying to help, you asshole' would have been an understandable reaction to a public insult. Accusing someone of being a pedophile and then double and tripling-down when called on it? That is most certain not an 'understandable reaction', that's being a petty, vindictive jackass because you can.
From the original article:
In response to this Musk engaged in a truly bizarre series of emails with Mac, in which he not only reiterated some of his claims about Unsworth, but went even further, claiming Unsworth had moved to Thailand "for a child bride who was about 12 years old at the time" and also telling Mac to "stop defending child rapists."
Someone responding to an insult by firing one back? That's understandable.
Someone responding to an insult by accusing the other person of fucking/raping kids? Not so much.
[ link to this | view in chronology ]
Re: lIke responding, like anyone
Elon was, and is, raising four (five, one died) boys all about the same age as the kids in the cave. Would YOU be ridiculed as an ambulance chaser for walking down the street to assist in a neighborhood accident?
To anyone with a $70m G650ER, the world is kind of local
[ link to this | view in chronology ]
Re: Re: lIke responding, like anyone
... what?
Would YOU be ridiculed as an ambulance chaser for walking down the street to assist in a neighborhood accident?
If I was I'd simply point out that the other person was wrong as demonstrated by my actions, I wouldn't accuse them of wanting to rape kids and then when called out on it insist that the original accusation was correct.
However you care to spin it Musk's response here was well beyond proportional, and honestly flat out indefensible. Making a stupid mistake/statement in the heat of the moment can be understood to an extent, but that excuse doesn't cover everything, and it certainly doesn't cover double/tripling-down later on rather than owning your actions and admitting to going overboard.
[ link to this | view in chronology ]
Re: Re: Re: lIke responding, like anyone
The world is swimming in great solutions driven by smart people; Musk's flim-flamm attitude is why he has 500,000 r/spacex subscribers and gets 250,000 $deposits for an outlandish electric pickup truck (2022 delivery) in just 4 days. Anti-social nerds never have gotten their nose far enough under the tent to make a difference, no matter how usefull their solution. A gentle Musk would be right where my electric car factory ended up: closed, no product, licking the wounds.
The Tucker might have been an exception, had he not crossed a US Senator.
[ link to this | view in chronology ]
Re: Re: Re: Re: lIke responding, like anyone
And once again, what.
If you're trying to argue that a non-asshole Musk would be a useless Musk then I'm pretty sure the number of people out there that have invented impressive things and yet not accused someone who was mean to them of raping kids nicely shoots that one down.
Creativity is not fueled by repulsive behavior, Musk did not in any way need to accuse someone who insulted them of a disgusting thing, he chose to do so.
[ link to this | view in chronology ]
Re: Re: Re: Unsworth shot himself in the foot
"But I'm fairly sure he also thought his submarine thing might really work"
Maybe he did. But, he responded poorly to people who knew way more about the subject telling him that it wouldn't.
"Telling him to shove it up his ass, in a very public way - unjustified insult."
It was an emotional time, the emotion made worse by someone unqualified trying to get their oar in. Remember, this was an internationally watched operation that ultimately cost one of his friends his life. No matter whether you think he was polite enough, it's perfectly understandable why he's feel the need to be such.
"I'm just imagining what was going on in the mind of the juror"
From what I understand, the lawyers he hired chose the wrong method to present the case, and it was something that Musk's lawyers easily presented doubt against. Not surprising, since one party is a billionaire with a lot of experience fighting in the courtroom, and the other is a foreign national living on the other side of the world who was reluctant to enter a court room until Musk decided to tell the world that him not fighting in court was admission that he was a paedophile.
[ link to this | view in chronology ]
Re: Re: Re: Re: Unsworth shot himself in the foot
He got bored and made the submarine anyway. It actually works.
Everything else you say is about right though.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Unsworth shot himself in the foot
"He got bored and made the submarine anyway. It actually works"
Does it? It "works" in the sense that it's a working submersible vessel, but my understanding is that it's the layout of the cave system that would have made it impossible for that vessel to navigate safely. Which is why Unsworth was telling Musk to shove it up his arse rather than waste time trying to use it.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Unsworth shot himself in the foot
From what I saw it would work but was not the only solution.
idc in the slightest about musks online feud with some random person from the internet.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Unsworth shot himself in the foot
"idc in the slightest about musks online feud with some random person from the internet."
Neither did his target until he started hiring P.I.s to get fake info to spread about him and assert that him not suing was admission that he was a pedo.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
The issue is that first reports said the children could not swim, and the water level, percolating into the dry cave from early monsoons, was rapidly changing: the kids had bicycled in. If the cave had been filled during the ultimate removals, perhaps the sub would have been useful, instead they chose to drug the children. The children could swim, a large part of the Thia retail economy is conducted on the water.
[ link to this | view in chronology ]
Yeah. It seemed to me that the only reputation that was damaged by those tweets was the reputation of Musk himself.
[ link to this | view in chronology ]
Re: Why Care?
Most of the powerful people i have dealt with in seventy years were jerks to those close, and their "reputations" were only salvaged by their contributions to bettering the world. Thus we have People magazine for those who follow reputations, and have a couthless US President for those who don't care.
[ link to this | view in chronology ]
Plenty believed it
"it seems reasonable to think that few, if any, people actually believed Musk's statements about Unsworth were true"
"few" can be argued but that no one believed it? That's stretching reality to fit the narrative for why this is a good win at the end. Go to the many discussions about the topic to see rabid fans claiming that Musk obviously(!) knows something and will soon reveal what he found out.
Good win it maybe, but it does not mean there weren't actually negative consequences to Unsworth.
[ link to this | view in chronology ]
Re: Plenty believed it
Which... would not have happened had Unsworth not chosen to escalate.
[ link to this | view in chronology ]
Re: Re: Plenty believed it
Very true, but Musk is a prick who tried to use poor kids stuck in a cave as a PR stunt.
The situation was under control by experienced cave rescuers and this ass-hole weighs in to try and promote his company instead of just letting them get on with their work. When challanged he starts throwing around accusations of paedophilia based on someones appearance.
The truth is that Unsworth could never match Musks money/lawyers so he should never have filed a lawsuit. Maybe he got talked into it by a "no win no fee" lawyer.
[ link to this | view in chronology ]
Re: Re: Re: Plenty believed it
The truth is that Unsworth could never match Musks money/lawyers so he should never have filed a lawsuit. Maybe he got talked into it by a "no win no fee" lawyer.
Based upon the original article it looks like he sued because Musk doubled-down on being a jackass and made the argument that he hadn't sued because the accusations were correct. At that point Unsworth was basically in a lose-lose situation, where he either files a lawsuit against someone who can basically spend his way to legal victory and the odds of winning are slim to none, or he doesn't sue and Musk's claims are not only allowed to stand but given an undeserved veneer of validation.
In August, when someone reminded him of his comments, Musk suggested he actually stood by his original comments by implying the lack of a defamation lawsuit suggested the original statements were true:
'You don't think it's strange he hasn't sued me? He was offered free legal services.'
[ link to this | view in chronology ]
Re: Re: Plenty believed it
"Which... would not have happened had Unsworth not chosen to escalate."
Umm... what? Now you are just making up the timeline for no reason.Must lovers believed with the first post and follow-up post, long before any lawsuit. Try reading the posts about the matter on gizmodo prior to the lawsuit date.
[ link to this | view in chronology ]
Lots to believe here
Ever been to Thailand for a month to get laid? I Have.
Thia families had a dozen children to support them in old age, but with thousands of US personal arriving in Bangkok for 'R&R' each week and a falling infant mortality, in these last decades they have sent their children into the city to send money home.
My long ago neighbor, a skilled lifetime fighter pilot that flew his own P-51 in the Reno air races, at 60 he gave another WWII aircraft to an Arizona 14 year old, married her and, sick of public ridicule, sold his self-built hilltop castle in Phoenix and they moved to New Zealand.
https://www.youtube.com/watch?v=tqyKI98slUk
Is Vern 'Cave Diver' Unsworth more skilled than Musk or a lifelong fighter pilot, and therefor above ridicule? No one is.
Disclaimer; My cousin, Janet Lewis, was UN Director Of Information SE Asia, her office was in Bangkok for six years.
[ link to this | view in chronology ]
Re: Lots to believe here
My internet connection is being consistently hacked but I can't find any records of that office from google right now.
Google (or at least the google version being sent to my computer) is also being hacked. I don't know if it's a mitm or google's actual servers.
[ link to this | view in chronology ]
Re: Lots to believe here
"Ever been to Thailand for a month to get laid? I Have"
Good for you for having the way to exploit foreigners for your inability to get laid at home..
"Disclaimer; My cousin, Janet Lewis, was UN Director Of Information SE Asia, her office was in Bangkok for six years."
She must be so proud of you supporting the local sex tourism industry.
In the meantime, there is still no evidence of Musk's specific claims again Unsworth (that he's a pedo), and readily confirmed reality contradicts others (he claimed that Unsworth (Musk claimed he move to Thailand decades ago to marry a 12 year old, in fact he moved less than a decade ago and his wife was over 30 when they met).
[ link to this | view in chronology ]
Re: Re: Lots to believe here
Marriage at 14 is legal in Arizona, and as a very young US Army medic, i was not a tourist in any sense. Yes, Janet was heartbroken about the cost our War was having on the cultures of SE Asia & about her four years in Afghanistan. She was also a den-mother to a family that was living within a public restroom that we visited. Context is often sacrificed for righteousness.
[ link to this | view in chronology ]
Re: Re: Re: Lots to believe here
"Marriage at 14 is legal in Arizona"
Not currently. But, what does legal marriage age have to do with you screwing minors in a foreign country?
"Context is often sacrificed for righteousness."
The context you provided was "Ever been to Thailand for a month to get laid? I Have" and I responded to that. If you don't want to be thought of as a pedo sex tourist, you should maybe not present yourself as one.
[ link to this | view in chronology ]
like
when you try to sue that rich dude and it all just falls apart...
Jus gimmie the triangle truck so I can get outta here!
[ link to this | view in chronology ]
I've always thought Elon looked kinda Pedo. Still do.
[ link to this | view in chronology ]
Re:
Just no. It was bad and uncalled for when Musk did it, doing the same to him doesn't make it any better.
[ link to this | view in chronology ]
Too bad that James Woods' suit couldn't have gone to a jury.
[ link to this | view in chronology ]
Lol defending the narrow view of “free speech” at any cost, has always been bizarre to me. That and the softly peddled trickle down economics Mike like’s to peddle from time to time.
[ link to this | view in chronology ]