re: X sues Media Matters after report about ads next to antisemitic content

Very thorough analysis of X’s suit against MM. Examples of precedent and why it was filed in Texas.

LINK

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The Legal Merits

Does X have a case? Assuming that it can prove the facts alleged in its complaint, and that those facts will be judged under Texas law, it would seem likely that the case can survive a motion to dismiss and get to trial.

A pair of defamation suits against Dateline NBC provide examples of how these kinds of cases can go. In 1993, NBC settled a lawsuit filed by General Motors after a Dateline program about allegedly unsafe GM pickup trucks featured a test in which a crash caused a truck to catch fire.

NBC insisted that its report was accurate: It showed a real GM pickup truck, it really did catch fire, and (said NBC) GM’s pickups really were prone to that sort of fire. What NBC didn’t tell viewers was that its test rigged the truck by replacing the gas cap with remote-controlled incendiary model-rocket engines. What deceived the viewers was the rigged nature of the test...

Media Matters may argue here that its reports were in some sense literally true: It did manage to get the ads paired with extremist content, as reflected in the screenshots, and this proved that it was possible for this to happen. But then, Dateline tried that same argument, and the fact that it hid the rocket engines from its audience was its downfall.

The thrust of X’s lawsuit is the concealment of the rigged nature of the test and the use of that test to convey a false impression about the likelihood that X users would encounter ads from these companies paired with extremist content. That likelihood is precisely the important part for advertisers.

To say that Media Matters “found” these ad pairings is akin to saying that a cop who plants drugs in your car “found” the drugs there...

Under Texas law, a defamation or business-disparagement case can be based on a report that uses literally true words or images if the report omits facts, or juxtaposes them in misleading ways, in order to create a false impression.

The leading case is the Texas Supreme Court’s decision in Turner v. KTRK Television, Inc. (2000). Turner involved a television report about Sylvester Turner, who was then running for mayor of Houston (a job he holds today); his campaign dropped like a rock after the report, and he lost the race.

It involved his legal representation of a man who committed insurance fraud by loading up on insurance policies while under criminal investigation and then faking his own death. Turner prepared the man’s will.
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Because a publication’s meaning depends on its effect on an ordinary person’s perception, courts have held that under Texas law a publication can convey a false and defamatory meaning by omitting or juxtaposing facts, even though all the story’s individual statements considered in isolation were literally true or non-defamatory. . . .

Just as the substantial truth doctrine precludes liability for a publication that correctly conveys a story’s “gist” or “sting” although erring in the details, these cases permit liability for the publication that gets the details right but fails to put them in the proper context and thereby gets the story’s “gist” wrong.

This is consistent with a broader principle of law that I have written about on many occasions: The law of fraud and false statements, which appears in different guises in the civil and criminal law, is centrally concerned with materiality and deception. In other words, it’s not a game of “gotcha” to find false statements; the point is to punish those who actually convince others of something false (or at least say things likely to do so), on an important matter that might change their behavior, where the audience doesn’t have its own access to the truth.

It is common throughout different areas of false-statement and fraud law to rule that literally true statements can be misleading and fraudulent because they omitted crucial context. It is also common to read statements and documents as a whole, in light of the evidence available to the ordinary reader, in order to assess their message. Rigged tests and deceptive editing of actual words are in the heartland of these doctrines.

Texas cases show a variety of ways in which this rule (allowing suits for things such as “defamation as a whole” and “libel by implication”) has been applied in defamation and business disparagement suits:

The Texas Supreme Court, in In re Lipsky (2015), allowed a claim by a drilling company against a homeowner who blamed the company for flammable gas in his well. His public statements omitted details about the nature of the drilling, the characteristics of the gas, and the details of regulatory proceedings, all of which combined to produce a false impression of the drilling company’s culpability.

A Texas appeals court, in Memorial Hermann Health Sys. v. Gomez (2019), upheld a jury verdict for a heart surgeon who said his hospital had defamed him to referring physicians by spreading unreliable data accusing him of having high patient-mortality rates.

The federal district court in the Western District of Texas, in Kinect Solar LLC v. Panasonic Corp. (2020), allowed a claim to go forward against Panasonic by a company selling second-hand Tesla solar panels custom-made for Panasonic, in competition with its own products. Panasonic had warned customers that the seller was misrepresenting the panels as being backed by “any warranty whatsoever by Panasonic Life Solutions Company of America.” That was true but omitted that they were backed by a warranty from a different Panasonic entity.

The Texas Supreme Court, in Bentley v. Bunton (2003), found that a public-access host had defamed a judge he labeled as “corrupt” in good part because he claimed to know this from documents he reviewed and people he interviewed at the courthouse. These were not just statements of opinion because he did not provide his viewers access to the evidence.

The First Amendment doesn’t prevent states from punishing defamation based on omissions and context rather than literal falsity. In Masson v. New Yorker Magazine (1991), the Supreme Court allowed a magazine to be sued for falsely attributing a statement to a person, “regardless of the truth or falsity of the factual matters asserted within the quoted statement.” That’s not so far from accusing X of placing these ads in the ordinary course of its business, given how hard

Media Matters worked to put them in the company’s mouth. In Milkovich v. Lorain Journal (1990), the Court concluded that accusations — in that case, perjury in a judicial proceeding — are not always constitutionally protected opinion if they imply facts that are false and defamatory.

This kind of lawsuit is very hard to win, and in a society that promotes robust public debate and hard-hitting investigative journalism, it should be hard to win. But X has alleged facts that make for a potentially strong case — and that should give readers of Media Matters pause in accepting its charges in the future.

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