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Elon Musk’s tenure atop Twitter has proven the Business School case study equivalent of that little girl trying to pour juice. Except instead of a young Black girl trying to get a drink, it’s a South African billionaire trying to let white people use the n-word more.

He botched the merger agreement so badly that he had no way out, spun his wheels on a turkey of a legal case that only the dumbest of lawyers thought had a prayer, fired executives he now owes millions (don’t worry, he’s signaling that he’s not going to pay them — another loser of a case), laid off workers in what appears a massive violation of labor laws, then reportedly started rehiring those people when he figured out they were essential to keeping Twitter running, and has shifted his “comedy is now legal” stance to “permabanning people who parody him.”

Elon is not a lawyer and it shows.

Yet he seems undeterred from running face first into more legal quagmires.

elon tweet

He does not.

That’s Judicial Watch honcho Tom Fitton. While his title might trick you into believing Fitton has a law degree, he does not. What he does have is a pile of racial and gender grievances spiced with anti-vaxxer takes and a real hankering to get the courts to impose his worldview on the public no matter what the Constitution or precedent says to the contrary.

Which is to say that it completely tracks that Fitton would publicly muse about a legal theory with no basis in the law other than his personal wish that it might be true.

And Elon is here for it.

Alas, no, it’s not tortious interference to ask companies to stop advertising on Twitter. In a bout of irony that would make O. Henry blush, for all Musk’s preening about what he imagines to be “free speech,” he doesn’t have any claims here because of actual free speech.

Because freedom of speech is not about private companies declining to moderate antisemitic rants on their boards, it’s about preventing the law from silencing protest. In a nutshell, if Mark Zuckerberg called for advertisers to boycott Twitter, which would presumably inure to Facebook’s benefit as a rival social media platform, that may give rise to a legal claim. If civil rights activists call for advertisers to boycott Twitter because it’s entering a hate speech death spiral, that will not give rise to a legal claim. Unless the activists are making objectively false claims — not just opinions — the First Amendment insulates the activists from tortious interference claims.

It’s why Disney didn’t sue a bunch of pastors into oblivion in the 80s and why Fox News isn’t constantly suing liberals whenever advertisers flee Tucker Carlson after some white nationalist outburst.

But hey, maybe Elon will embroil his new company in more disastrous lawsuits. It would certainly help us here at Above the Law!

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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