- Panfilo
- Aug 27, 2011
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Can't post for 3 days!
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https://twitter.com/KanekoaTheGreat/status/1728507048399409546?t=zLBP-714wqrrSPzj4YsNWQ&s=19
quote:
Excellent article & legal analysis by ex-lawyer @baseballcrank
The specific charge by X in its lawsuit is that Media Matters took extraordinary steps to game X’s system in order to evade all safeguards for placing big corporate sponsors’ ads next to extremist content.
According to X — which claims to have tracked what happened with an internal technical investigation — Media Matters was able to produce its examples of ads pairing with extremist content only by rigging its test with user behavior so atypical that no other user would encounter the same ad/X pairings. The alleged conduct is something on the order of a researcher forcing a lab rat to drink water until its stomach burst in order to prove that water is dangerous.
As the complaint’s allegations detail:
First, Media Matters accessed accounts that had been active for at least 30 days, bypassing X’s ad filter for new users. Media Matters then exclusively followed a small subset of users consisting entirely of accounts in one of two categories: those known to produce extreme, fringe content, and accounts owned by X’s big-name advertisers. The end result was a feed precision-designed by Media Matters for a single purpose: to produce side-by-side ad/content placements that it could screenshot in an effort to alienate advertisers.
But this activity still was not enough to create the pairings of advertisements and content that Media Matters aimed to produce. Media Matters therefore resorted to endlessly scrolling and refreshing its unrepresentative, hand-selected feed, generating between 13 and 15 times more advertisements per hour than viewed by the average X user repeating this inauthentic activity until it finally received pages containing the result it wanted: controversial content next to X’s largest advertisers’ paid posts.
How unrepresentative was this?
X’s internal user data tells the story of just how far Media Matters went to manufacture an inorganic user experience strictly aimed at creating an interaction between controversial content and big-name advertisers that was seen only by the Media Matters account and then published broadly. . . .
Media Matters set its account to follow only 30 users (far less than the average number of accounts followed by a typical active user, 219), severely limiting the amount and type of content featured on its feed. . . .
The representation put forth by Media Matters constituted 0.0000009090909 percent of impressions served on the day in question. Most or all of these pairings were not seen by literally anyone besides Media Matters’ own manipulated account, and no authentic user of the platform has been confirmed to have seen any of these pairings.
So, Media Matters proved that it was possible for an X user who used the platform for the sole purpose of seeing corporate ads matched with extremist content to see those pairings, if the user tried hard enough. It could have published findings showing this in order to argue that Musk’s safeguards were not 100 percent foolproof. That is not remotely what it did.
Here, instead, is how Media Matters portrayed its experiment in a pair of articles by Hananoki. The two key publications are a November 16 article titled “As Musk endorses antisemitic conspiracy theory, X has been placing ads for Apple, Bravo, IBM, Oracle, and Xfinity next to pro-Nazi content” and a November 17 article titled “X is placing ads for Amazon, NBA Mexico, NBCUniversal, and others next to content with white nationalist hashtags” (emphasis added).
In each case, the headline sets the tone by promising to show that such placements are an ongoing occurrence rather than something only Media Matters saw, and which was generated in an artificial experiment.
A sampling of what Media Matters wrote:
As X owner Elon Musk continues his descent into white nationalist and antisemitic conspiracy theories, his social media platform has been placing ads for major brands like Apple, Bravo (NBCUniversal), IBM, Oracle, and Xfinity (Comcast) next to content that touts Adolf Hitler and his Nazi Party. . . .
During all of this Musk-induced chaos, corporate advertisements have also been appearing on pro-Hitler, Holocaust denial, white nationalist, pro-violence, and neo-Nazi accounts. . . .
We recently found ads for Apple, Bravo, Oracle, Xfinity, and IBM next to posts that tout Hitler and his Nazi Party on X. . . .But as hateful rhetoric flourishes on X, the platform’s remaining advertisers are especially affected. [Emphasis added]
In other words, the thrust of the articles was to present these ad placements as an ongoing and recurring problem that Media Matters “found” rather than events it staged by an experiment to test the vulnerability of the system. The screenshots presented in the articles gave no indication of their provenance, suggesting to the ordinary reader that these were simply spotted by Media Matters personnel or sent to them by other users.
According to X’s complaint, which is consistent with the way the articles present the screenshots, Media Matters went out of its way to avoid transparency by conducting all of its experiments through a private account that could not be seen by other users:
Media Matters omitted in its entirety its process of manufacturing these ad pairings. It did not include in its article that it created a user that only followed 30 accounts that either belonged to fringe figures or major national brands. Neither readers nor advertisers had any way of knowing that the entire feed was orchestrated to generate the remarkably rare combinations.
Media Matters also omitted mentioning in its entirety its excessive scrolling and refreshing, allowing users to believe (falsely) that the “report” was produced under circumstances that were organic and unmanipulated. . . .Media Matters’ image choice in its smear also functioned to hide the true nature of its report.
All images selected contained only the ad and the controversial content, with all other posts absent from view. . . . Media Matters at no point includes images with any information about the account that was exposed to these images; the cropped nature of Media Matters’ deceptive screenshots leaves its profile picture out of frame.
Consistent with its past practice, Media Matters trumpeted the specific advertisers affected, in an open effort to get them to cancel business with X. Apple, IBM, Comcast, and NBCUniversal all appear to have canceled or suspended advertisements — results that Media Matters publicized and celebrated.
In the usual case of defamation or its commercial cousin, business disparagement (the main claim raised here by X), it can be difficult to meet the demanding threshold for proving “special damages” directly traced to the statement. Here, the Media Matters reports appear to have been the direct and proximate cause of those losses by X, and to have been written with the aim of causing them.
X has chosen its venue well. The Northern District of Texas, and in particular its Fort Worth division, has a conservative bench, a conservative jury pool, and a relatively fast-moving civil docket — all bad news for a left-wing organization defending a politically charged civil suit. Judge Mark Pittman, to whom the case was assigned, is a Trump appointee.
The district is not the sort that tends to favor disposing of cases on motions to dismiss the complaint, rather than allowing them to go forward in discovery. As we shall see, Texas law, while hardly unique on this point, provides some fairly clear guidance in favor of the legal claims brought by X.
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.
The report claimed that Turner was “deeply involved” in the fraud and created the impression of his culpability by stating a series of true facts, but in misleading ways. For example, its presentation compressed the timeline of events, portrayed Turner as scheming to get a friend named administrator of the estate without mentioning that the friend had already been named as executor of the will, and stated (truthfully) that a court had removed Turner from the ensuing litigation for “conflict of interest” without mentioning that the “conflict” arose from the legal rule that a lawyer can’t appear in a case where he is also likely to be a witness. The court (in an opinion joined by then-justices Greg Abbott and Alberto Gonzales), explained the legal standard:
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.
(USER WAS PUT ON PROBATION FOR THIS POST)
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Nov 26, 2023 20:22
