In July, tech billionaire Elon Musk said he hoped some states would consider criminal prosecutions of people participating in what he called an advertiser “boycott” of platforms like his social media app, X.
In October, Musk turned his attention to a former State Department official, Victoria Nuland, saying she should be “prosecuted” after she went on television and criticized him as a tool of the Kremlin.
And then last week, Musk revived a long-running feud with a group that monitors hatred online, the Center for Countering Digital Hate, saying that its members should be prosecuted for “their many crimes.”
Musk, the world’s richest person, has in the past two years called for several of his opponents to be prosecuted, and it’s something that free speech advocates say they could overlook if he were only an ordinary private citizen.
But now that Musk is gaining political power as a close ally of President-elect Donald Trump, his demands for criminal charges against critics are much more worrisome, according to scholars and groups devoted to the First Amendment.
“If Elon Musk is appointed to some position within the administration, he will continue to jawbone — pressure others to be punished for their speech — and that raises very serious free speech concerns,” said Nadine Strossen, a past president of the American Civil Liberties Union and a professor of law emerita at New York Law School.
“In our system, the idea of holding somebody criminally liable for something they say is so antithetical to the concept of free speech,” she said in an interview.
Musk, the CEO of Tesla and SpaceX and the owner of X, has positioned himself as an intimate adviser of Trump after helping to propel the former president to a remarkable political comeback. Musk contributed more than $118 million of his own money and the megaphone of X, where he is listed as having 204 million followers.
Strossen and other free speech advocates said they’re concerned that Musk could use his influence to strike out at his enemies, or make sweeping changes that would help him do so, such as suggesting personnel for the Justice Department. Trump has already said he wants Musk to advise him on federal spending and efficiency.
“Musk’s actions over the past few years call into question his stated commitment to free speech,” Aaron Terr, director of public advocacy at the Foundation for Individual Rights and Expression, said in an email. He cited X’s increasing compliance with foreign governments’ demands to censor content on the platform and the lawsuits against the Center for Countering Digital Hate and Media Matters.
“Any disputes Musk has with his critics should play out in the court of public opinion, not a court of law,” Terr said.
Musk and representatives at X did not respond to requests for comment on his calls for prosecution.
According to NBC News’ review of Musk’s public statements, there’s an established pattern of him attacking nonprofit groups, journalists and others who produce information that he disagrees with or that may not be helpful to his goals or image — a pattern that runs counter to frequent vows by him that he’s a defender of the First Amendment’s guarantee of free speech.
An NBC News review of Musk’s statements identified seven critics whom he has accused of criminal conduct: the three examples above, as well as the progressive news site Media Matters, lawyers who represent dissident Tesla shareholders, investors who have sold Tesla stock short and journalists who share details about where his private jet has traveled, which is publicly available information.
Musk has also attempted to silence critics through civil lawsuits, suspensions on X, calls for ending donations and one call for unspecified general “recrimination.”
Of the cases in which Musk pursued legal action, he has not won a court judgment against any of those critics or persuaded a prosecutor to bring criminal charges. X has a pending lawsuit against Media Matters and a pending appeal in a lawsuit that X lost against the Center for Countering Digital Hate. Musk and X have sometimes found allies among members of Congress or state attorneys general who have launched investigations.
Media Matters and Nuland declined to comment. A Tesla shareholder lawyer did not respond to a request for comment.
Now, some First Amendment scholars say Musk’s statements may chill speech further if they carry the weight of an implied threat from an incoming government official.
Michael Gerhardt, a law professor at the University of North Carolina-Chapel Hill, said that there’s often a large power difference between Musk and his critics — and that the difference is growing.
“The First Amendment obviously protects both Musk and his critics in making public pronouncements about each other,” he said in an email.
“Yet, Musk has the bigger bully pulpit, by virtue of his wealth and allies, and his relationship with Trump likely will allow him more leverage to drown out — and if necessary — to use his economic power to wear them down financially and to get Justice Department support in harassing and punishing them,” he said.
The Justice Department did not immediately respond to a request for comment.
Musk has for years buried certain critics under an avalanche of legal troubles. Sometimes courts have stood in the way. This year, when X lost its lawsuit against the Center for Countering Digital Hate, a federal judge called the suit an attempt by X to use the courts to silence a critic.
“This case is about punishing the Defendants for their speech,” U.S. District Judge Charles Breyer wrote.
The ACLU, the Electronic Frontier Foundation and the Knight First Amendment Institute at Columbia University filed an amicus brief in support of the Center for Countering Digital Hate.
The feud between Musk and the Center for Countering Digital Hate has continued. A report last month from a conservative news site, Racket News, said it obtained internal CCDH documents that listed the group’s annual priorities as including “Kill Musk’s Twitter,” referring to the app now known as X.
Imran Ahmed, CEO of the Center for Countering Digital Hate, said in a phone interview that Musk’s accusation of “many crimes” was baseless. He said that the organization would not be intimidated into silence, and that he has faith in the ability of U.S. courts to protect his group and other critics of Musk.
“Elon Musk is an incredibly thin-skinned man who’s incapable of taking honest criticism, even when based on verifiable facts, and has already weaponized courts to try and punish his perceived enemies,” he said.
“We live in a country of checks and balances, and we have faith in our judicial system and in the freedoms afforded to us by the Constitution,” Ahmed said.
Ahmed did not dispute the authenticity of the documents published by Racket News, but he said the phrase “Kill Musk’s Twitter” appeared to be from an individual’s meeting notes, not an official policy document.
Rep. Jim Jordan, R-Ohio, also criticized the Center for Countering Digital Hate on Thursday, sending the organization a demand for documents related to the “Kill Musk’s Twitter” language. Jordan’s House subcommittee, the Select Subcommittee on the Weaponization of the Federal Government, posted the demand on X.
“Our censorship investigation isn’t going anywhere,” the subcommittee’s X account said. “All gas. No brakes.”
Ahmed said the center had received Jordan’s letter “and we intend to comply in a manner consistent with our legal obligations and constitutional rights, as we have in the past.”
The Center for Countering Digital Hate is only the latest in a long line of Musk’s targets.
X has an ongoing lawsuit in federal court in Texas against Media Matters over its reporting about neo-Nazi content on the platform. Musk’s company alleges that Media Matters unlawfully interfered with X’s contracts with advertisers, something Media Matters denies.
In August, X successfully sued one critic out of existence: The advertising industry group GARM closed its doors two days after X sued it alleging it organized an illegal ad boycott.
“I strongly encourage any company who has been systematically boycotted by advertisers to file a lawsuit,” Musk posted in August.
“There may also be criminal liability via the RICO Act,” he said, referring to an anti-racketeering law.
A lawsuit by X against GARM’s parent organization, the trade group World Federation of Advertisers, is ongoing in federal court in Texas. The federation declined to comment.
X has suspended the accounts of some of Musk’s critics including Travis Brown, a researcher of far-right influencers who developed several research tools that gathered data from the Internet Archive, X’s API and other sources. X said Brown’s account was suspended for violating its rules around data usage, according to Wired. Brown later said he was suing X in a German court, though he said in an email last week that the court had dismissed his claim for lack of jurisdiction. X has not commented on the suit. Brown’s X account remains suspended.
Also last year, X suspended the accounts of Aaron Greenspan and PlainSite, a website that Greenspan founded with a free database of public records. Greenspan, a critic of Musk, sued X and Musk and said in court papers that he was wrongly suspended for “posting private information” but not told any additional details. Lawyers for X said in court papers that the company had a right to suspend him under its terms of service. The accounts remain suspended, and Greenspan’s suit is pending in federal court in San Francisco. Greenspan declined to comment.
In 2022, Musk said he planned to take unspecified “legal action” against Jack Sweeney, a college student who had set up social media accounts to track the private jets of celebrities including Musk using publicly available flight data. Musk accused Sweeney of enabling an alleged stalker and banned his account from X, although police found no link between the reported stalking incident and the jet-tracking account, The Washington Post reported.
Sweeney, whose work has angered other private jet users such as Taylor Swift, said in an interview last week that Musk never sued and that he’s not worried.
“If there was any grounds for these people to do so, they would have already,” he said. “Trump doesn’t worry that I have an account for his. They are newsworthy people. It kind of just comes with the territory that people are interested in where you go.”
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