Elon Musk and the Three Libel Suits

Elon Musk
Photo by Lambert/ullstein bild via Getty Images
Eriq Gardner
April 11, 2022

Now that Elon Musk has become the largest shareholder in Twitter, he threatens to command even greater influence over what circulates online. Musk, after all, is perhaps the social network’s most enthusiastic user, following the defenestration of Donald Trump, and certainly its foremost advocate for unencumbered shitposting. Now, with his $3 billion, 9.1 percent stake, it’s widely expected that Musk will steer the social media giant towards a lighter touch with respect to speech regulation.

It’s something of a coup for Musk, who was to be assigned a corporate babysitter after claiming in a 2018 tweet that he had secured funding to take Tesla private. (He hadn’t, and was fined $40 million by the S.E.C.) Last week, Musk and Twitter C.E.O. Parag Agrawal said that Musk would be joining the board. By Sunday evening, both had backtracked: Agrawal announced that Musk had changed his mind about the seat, which was contingent on a background check and a 14.9 percent cap on his stake in the company. Now, in theory, Musk could either dump his stake or build an even larger position, without the same fiduciary requirements.

Before he confronts the boardroom, though, Musk could find himself testifying in a different venue. That’s because Musk is on the celebrity-studded witness list for Johnny Depp’s defamation trial in Virginia against ex-wife Amber Heard. The proceeding began today and will focus on how Heard presented herself as the victim of domestic abuse in a 2018 Washington Post column. Over the years, Musk has been a good friend of Heard’s—the two dated for several months after she split from Depp in 2016—and so the Tesla chief had a first-hand look at one of the most combustible relationships in Hollywood history. 

Depp filed his libel suit in March 2019 and demanded $50 million in damages over Heard’s abuse allegation, which seems to have derailed a once stratospheric career. (Depp’s last big movie was in 2018; his only notable acting credit in the past two years has been as a voice actor on a “mobile-first” animated series about puffins.) Heard then filed counterclaims over what Depp’s attorney told the press about her story of domestic abuse and demanded $100 million in damages. Depp was unsuccessful in stopping those counterclaims under a new anti-SLAPP statute, aimed at stopping First Amendment-chilling litigation. Meanwhile, Heard couldn’t stop his claims from moving to trial either, despite arguing that Depp had already pursued—and lost—a defamation case over their marriage. (A U.K. judge ruled in 2020 that calling him a “wife beater” was “substantially true.”) She was also unsuccessful in trying to get the case moved out of Virginia, where the Washington Post column was published, to a friendlier venue in California.

One thing that will be missing from the proceedings, however, is a counterclaim that Depp violated the Virginia Computer Crimes Act by coordinating a huge number of social media bots to harass Heard and interfere with her career in Hollywood. The judge wouldn’t allow Heard’s legal team to raise that issue—not because Depp leading a bot army on Twitter and Instagram was necessarily false, but rather because Heard hadn’t sufficiently alleged all the elements of a computer crime under Virginia law, in particular that obscene, profane, or vulgar language was communicated over a computer network to harass her. But for the lack of identified curse words, Musk might also have had a front-row seat to see how the company that he now partly owns has allegedly been weaponized. 

If Musk does take the witness stand—according to court documents, he plans to join other potential star witnesses like James Franco and Paul Bettany in testifying via a video link—he could be asked about once offering Heard “24/7 security” after she told him of a desire to get a restraining order against Depp. (That detail was featured at the U.K. trial.) On cross-examination, Depp’s lawyers might also attempt to get Musk to admit that he made charitable donations to cover for Heard, who upon her divorce, suggested in the press that she intended to give away her $7 million divorce settlement. If they do so, the point would be to impugn Heard’s honesty and integrity—and by extension, Musk’s, too.

The Whole “Pedo” Mess

Amazingly, this isn’t Musk’s first or even second legal adventure involving a major libel showdown. The first dates back to 2002, when Martin Eberhard and Marc Tarpenning co-founded Tesla. In 2004, Musk took a major stake in the electric carmaker and joined the company’s board. Thereafter, Eberhard was ousted. That led to litigation, including a 2009 suit in California state court (here’s the complaint) where Eberhard objected to how Musk had been “re-writ[ing] history by falsely claiming that he was the founder or the creator of Tesla Motors, [and] by falsely accusing Eberhard of being principally responsible for the Roadster’s production delays and for Tesla Motors’ financial instability.” Musk and Eberhard settled, with Musk reserving for himself the right to call himself a co-founder. In the years since, Musk has continued the feud, once tweeting that the “founding story of Tesla as portrayed by Eberhard is patently false.” 

Musk’s second big adventure on the libel front came in 2019,  right in the middle of the Trump presidency. As the president railed against so-called “fake news,” Musk earned the distinction of becoming the first individual in the U.S. to go to a libel trial over something he tweeted. Specifically, British cave explorer Vernon Unsworth alleged that he was defamed when, after leading the rescue of 12 boys trapped in a Thai cave in June 2018, Musk called him a “pedo guy” on Twitter. Unsworth sought $190 million in damages and was represented by L. Lin Wood, who ironically would gain even more infamy a few years later peddling pro-Trump, stolen-election conspiracy nonsense.

The clash was primarily a case of bruised egos: Unsworth had criticized Musk for involving himself in the cave rescue, Musk’s lawyers argued, and the billionaire simply responded with the sort of hyperbolic, internet chatroom rhetoric that is common on Twitter. And Musk prevailed. At trial, his attorneys successfully kept Unsworth’s damages expert from testifying, allowing them to ridicule the plaintiff’s huge financial demand during closing arguments. Musk’s lawyers also viciously attacked Unsworth’s character by presenting him to the jury as an attention-seeking racist via lengthy text conversations that had surfaced during discovery.  

Libel Season

The Depp trial comes amid a banner season for libel litigation—the year began with Sarah Palin’s trial against The New York Times, and it might end with a forthcoming trial where pop producer Lukasz Gottwald (a.k.a. Dr. Luke) is suing pop singer Kesha over her public allegation that he drugged and raped her. Plus, there’s an ever-expanding docket of potentially significant, precedent-setting libel actions—from the Ruth Shalit case to the “Shitty Media Men” suit, I’m doing my best to keep up. 

There are probably good explanations for why so many individuals are now pursuing defamation claims. For starters, Trump famously campaigned on loosening libel laws and his constant war against the news media may have influenced followers like Palin to take up the cause. That may have opened the door to ballot tech companies Smartmatic and Dominion Voting Systems filing multi-billion dollar defamation suits against Fox News, too. Other suits represent the legal fallout from the #MeToo movement, which inspired many women (and some men) to lob accusations of sexual misconduct; now, as I reported last week, some of those targets are fighting back. Meanwhile, the speed and reach of social media have created a dynamic where whispers can be amplified to a reputation-destroying decibel. Indeed, the televised event starring Depp could be a harbinger of more to come. 

The powerful have always wielded the law as a financial weapon, or an instrument of political warfare, but these days, it’s also increasingly the system through which we litigate the limits of speech, too. Musk, a self-described “free speech absolutist,” may ultimately push Twitter toward a more laissez faire regime, allowing more misinformation and harassment. He may even encourage the company to reinstate political arsonists like Trump, Milo Yiannopoulos, and yes, Adam Waldman, Depp’s own lawyer, who was suspended for violating Twitter’s privacy policy after vigorously using the forum to litigate the case against Heard. But that doesn’t mean there won’t ever be consequences for bad speech. A lack of checks and balances on the front-end of Twitter could mean that legal bills pile up as more aggrieved individuals go to court to fight falsity, harassment, and other misdeeds. In other words, get ready for the Musk era where free speech ain’t really that free.