A judge has preliminarily blocked what Media Matters for America (MMFA) described as Texas Attorney General Ken Paxton's attempt to "rifle through" confidential documents to prove that MMFA fraudulently manipulated X (formerly Twitter) data to ruin X's advertising business, as Elon Musk has alleged.
After Musk accused MMFA of publishing reports that Musk claimed were designed to scare advertisers off X, Paxton promptly launched his own investigation into MMFA last November.
Suing MMFA over alleged violations of Texas' Deceptive Trade Practices Act—which prohibits "disparaging the goods, services, or business of another by false or misleading representation of facts"—Paxton sought a wide range of MMFA documents through a civil investigative demand (CID). Filing a motion to block the CID, MMFA told the court that the CID had violated the media organization's First Amendment rights, providing evidence that Paxton's investigation and CID had chilled MMFA speech.
Paxton had requested Media Matters' financial records—including "direct and indirect sources of funding for all Media Matters operations involving X research or publications"—as well as "internal and external communications" on "Musk’s purchase of X" and X's current CEO Linda Yaccarino. He also asked for all of Media Matters' communications with X representatives and X advertisers.
But perhaps most invasive, Paxton wanted to see all the communications about Media Matters' X reporting that triggered the lawsuits, which, as US District Judge Amit Mehta wrote in an opinion published Friday, was a compelled disclosure that "poses a serious threat to the vitality of the newsgathering process."
Mehta was concerned that MMFA showed that "Media Matters’ editorial leaders have pared back reporting and publishing, particularly on any topics that could be perceived as relating to the Paxton investigation"—including two follow-ups on its X reporting. Because of Paxton's alleged First Amendment retaliation, MMFA said it did not publish "two pieces concerning X’s placement of advertising alongside antisemitic, pro-Nazi accounts"—"not out of legitimate concerns about fairness or accuracy," but "out of fear of harassment, threats, and retaliation."
AdvertisementAccording to Mehta's order, Paxton did not contest that Texas' lawsuit had chilled MMFA's speech. Further, Paxton had given at least one podcast interview where he called upon other state attorneys general to join him in investigating MMFA.
Because Paxton "projected himself across state lines and asserted a pseudo-national executive authority,” Mehta wrote and repeatedly described MMFA as a “radical anti-free speech” or “radical left-wing organization,” the court had seen sufficient "evidence of retaliatory intent."
"Notably," Mehta wrote, Paxton remained "silent" and never "submitted a sworn declaration that explains his reasons for opening the investigation."
In his press release, Paxton justified the investigation by saying, "We are examining the issue closely to ensure that the public has not been deceived by the schemes of radical left-wing organizations who would like nothing more than to limit freedom by reducing participation in the public square."
Ultimately, Mehta granted MMFA's request for a preliminary injunction to block Paxton's CID because the judge found that the investigation and the CID have caused MMFA "to self-censor when making research and publication decisions, adversely affected the relationships between editors and reporters, and restricted communications with sources and journalists."
"Only injunctive relief will 'prevent the [ongoing] deprivation of free speech rights,'" Mehta's opinion said, deeming MMFA's reporting as "core First Amendment activities."
Mehta's order also banned Paxton from taking any steps to further his investigation until the lawsuit is decided.
In a statement Friday, MMFA President and CEO Angelo Carusone celebrated the win as not just against Paxton but also against Musk.
"Elon Musk encouraged Republican state attorneys general to use their power to harass their critics and stifle reporting about X," Carusone said. "Ken Paxton was one of those AGs that took up the call and he was defeated. Today's decision is a victory for free speech."
Paxton has not yet responded to the preliminary injunction and his office did not respond to Ars' request to comment..
Media Matters' lawyer, Aria C. Branch, a partner at Elias Law Group, told Ars that “while Attorney General Paxton’s office has not yet responded to Friday’s ruling, the preliminary injunction should certainly put an end to these kind of lawless, politically motivated attempts to muzzle the press.”
Implications for Musk’s “thermonuclear” lawsuit
While it appears that Paxton's investigation into MMFA will be hobbled by the preliminary injunction—and perhaps soon will be defeated as Mehta deemed MMFA likely to prevail—MMFA's fight with Musk is far from over.
Last month, Missouri Attorney General Andrew Bailey rose to defend X by filing a lawsuit that Musk has said he "much appreciated." And MMFA must still face down Musk's lawsuit that started them all in Texas, after recently filing a motion to dismiss.
Earlier this month, Carusone told Ars that Musk seeming to call upon state attorneys general to join his "meritless" lawsuit against MMFA was a "novel" strategy that, if successful, could widely chill reporting on X. However, at that time, Carusone said that defeating Paxton's investigation and Musk's lawsuit could give reporters and researchers both within and beyond MMFA "a little bit more confidence and certainty that they can proceed doing their work without this kind of harassment and retaliation."
Bailey's office did not respond to Ars' request for comment on the preliminary injunction in Texas or provide an update on its own investigation into MMFA. But it seems likely that Mehta's opinion in Texas could influence both the Missouri and Musk lawsuits, as MMFA appears to have provided ample evidence of establishing that a "constitutional injury—the chilling effect on their First Amendment rights—has occurred and is ongoing," Mehta wrote.
In Musk's recently filed response to MMFA's motion to dismiss the lawsuit that he claimed would be "thermonuclear," however, Musk argued that a trial would be necessary to answer a key question of whether MMFA knew its reporting "would sabotage the value of advertising on X."
AdvertisementAccording to Musk, X has plausibly alleged that MMFA's reporting injured X by decreasing its ad revenue, and while MMFA has argued that Musk's own controversial posts on X could just as easily be at fault for the revenue drop, MMFA's motion to dismiss did not adequately resolve this question.
If MMFA's motion to dismiss fails for this reason, MMFA would likely have to prove at trial that Musk's posts on X have been significantly damaging to X Corp's bottom line.
Musk may have made this fact a little easier to prove, though. During his most recent deposition in yet another lawsuit, where Musk is being sued for alleged defamation by an X user who claimed that Musk falsely labeled him as a neo-Nazi "psyop," Musk denied that high engagement on his tweets generated substantial revenue for X. Rather, Musk said, his X posts probably hurt X financially.
In his deposition, Musk clearly stated that he was sometimes guilty of "self-inflicted wounds." Regarding his controversial X posts, Musk said, "I may have done more to financially impair the company than to help it, but certainly I—I do not guide my posts by what is financially beneficial but what I believe is interesting or important or entertaining to the public."
"Generally, advertisers will not want to advertise with content that is contentious," Musk said regarding his own X posts.
Asked if Musk's deposition may impact Media Matters' lawsuit, Branch told Ars that “our lawyers will put together the best case.”
X did not immediately respond to Ars' request to comment.
