If aliens grabbed some rando popped-collar douchebro off of a frathouse roof, Uplifted his brain, and handed him a billion dollars, they'd wind up with Elon Musk, a furiously rich, frighteningly smart visionary and ambulatory Ed Hardy shirt. The wisdom-dump-statted Musk has been terrifying Tesla shareholders by careening from one bizarre antic after another. It might be said of him that we are all constantly called upon to hold his beer.
This week finds him hailed to court. Musk made news recently for his antic crescendo of insults and accusations against a cave diver named Vernon Unsworth, who had the temerity to suggest that Musk's efforts to helped cave-trapped Thai children were poseur nonsense. Erratic billionaires don't take criticism well as a rule, and Musk suggested, then denied, then doubled down again and insisted that Unsworth is a pedophile. This is the point at which prudent people seek a court-ordered conservator over the antic person, except this antic person can send rockets into space and back.
Unsworth, after threats, has now sued. The lawsuit — filed in United Sates District Court in Los Angeles — is here. It's in federal court based on diversity jurisdiction — that is, because the parties are from different states and/or countries (California for Musk and England for Unsworth) and asserts but one count of defamation. The defamation claim is very thoroughly drafted — it sets for all of the complained-of statements and their context quite thoroughly, and even attaches tweets and articles to show the full context. Unsworth claims that Musk has falsely accused him of being a pedophile, a person who has engaged in pedophilia, a child rapist, a child sex-trafficker, the husband of a 12-year-old child bride, and a liar.
So how does this play out?
Most likely the whole case turns on whether these are provable false statements of fact, as required for defamation. Rhetorical hyperbole, insult, shit-talking, bloviating, pure opinion, and other expressions not reasonably taken literally as assertions of fact are not defamation. Opinion based on disclosed facts — "look at this article about what he did, Elon Musk clearly has a personality disorder" — are not defamatory. But a statement reasonably taken as one of fact — or an opinion expressed in a way to imply false undisclosed facts — can be defamatory.
So where do Musk's musings come out?
In my view, and tracking the statements listed in Exhibit A to the Complaint:
1. The 7/15/18 tweet where Musk says it is "sus[picious]" that Unsworth lives in Thailand is an opinion. It's a stupid one, but it's an opinion.
2. The 7/15/18 tweet where Musk calls Unsworth "pedo guy" is likely insult and hyperbole. Whether something is a statement of fact is determined by context, as viewed by people familiar with it. Twitter is a place for non-specific shit-talking, and people viewing it are less likely to see things as statements of literal fact. Absolutely nothing in Musk's tweet supports or suggests he has some basis for calling Unsworth a pedophile; the much more reasonable interpretation is that it's shit-talking and insult.
3. The 7/15/18 tweet where, confronted with his accusation, Musk says "bet ya a signed dollar it's true" is also likely hyperbole, insult, and opinion. Nothing about it suggests Musk has any basis to be making a factual claim and the entire context suggests trash-talking.
4. Musk's 8/28/18 tweet saying it's strange that Unsworth hasn't sued — implying that therefore he must be a pedophile — is an argument and opinion, not an assertion of fact, and again is in a context suggesting trash-talking and insult.
5. Musk's 8/30/18 email to Buzzfeed is another story. He claims that Unsworth moved to Thailand to marry a 12-year-old child bride. That's a statement of fact. He also accuses Buzzfeed of defending child rapists and lays out his evidence for his accusation that Unsworth is a pedophile — including the child bride allegation. This part gets more complicated. An opinion based on disclosed facts — even if it's a stupid opinion — is protected so long as the disclosed facts are true. But here Musk is offering his opinion that Unsworth is a pedophile and premising it on the claim that he married a child bride, which Unsworth says is false. That makes this section potentially defamatory.
6. Musk's allegation in a second 8/30/18 email that he was told that Unsworth was banned from the site is potentially defamatory if that's false and he was not told that.
So: in my view there are some potentially defamatory statements here. There are potential defenses — Musk would try to argue that Unsworth is a limited purpose public figure and that Musk didn't make the false statements with the requisite actual malice (knowing the statements to be false or with reckless disregard as to their falsity). It's a defensible case, but not a case, in my view, that gets kicked out early through a motion to dismiss or motion under California's anti-SLAPP statute, which applies to a limited extent in federal court in California.
It will be interesting to see what Musk files in response. The suit reveals, if nothing else, a CEO acting in a disturbingly erratic manner. Musk will have a much grimmer time in England, which has far less speech-protective laws, if Unsworth sues there.
Copyright 2017 by the named Popehat author. https://www.popehat.com/2018/09/17/cave-diver-vernon-unsworth-sues-elon-musk/
