Musk Declares War On Advertisers For Not Loving Musk

Added Musk, 'All shall love me and despair.'

In a time replete with efforts to redefine the First Amendment, Elon Musk is going out of his way to one-up Louisiana Governor Jeff Landry’s Ten Commandments efforts by alleging that the First Amendment provides no protection for — checks notes — choosing not to give your money to Elon Musk.

Now ordinarily one has a First Amendment right to freely associate, or not, with any particular business for any particular reason. And given corporate personhood, that would also protect the right of any particular business to freely choose to advertise (or not) on any particular platform. Musk, however, asserts that the Global Alliance for Responsible Media (GARM), a project of the World Federation of Advertisers, as well as a number of GARM’s members must provide him with all the monies because the Sherman Act’s antitrust provisions ban spending less on Twitter advertising in 2023 than a company spent in 2021. While GARM might say that it advocates for the rights of advertisers to protect their own brands and reputations, Musk’s lawsuit alleges that advocating for brand protection measures on social media sites is just another name for oligopolist collusion.

Musk virtually begged for the world to take his very serious lawsuit very seriously by announcing the filing with Bugs Bunny levels of grandiosity. Per Ars Technica:

"We tried peace for 2 years, now it is war," Musk wrote today, a little over eight months after telling boycotting advertisers to "go fuck yourself."

The action — prepared on behalf of X, the company which it amuses us to still call Twitter — is unusual in oh, let us count the ways. First is the fact that it was filed in Wichita Falls, of all places. Literally none of the parties are headquartered there, but Chris Geidner has a theory about how it landed in this little corner of north Texas. You will never guess what it is, unless you guessed “forum shopping for a district with a single, conservative judge,” in which case Chris will buy you a beer for your clever insight. (Chris will not buy you a beer.)

It is also unusual in the sense that not advertising on Twitter is both what Musk is alleging is very illegal and very uncool and at the same time seems to be exactly what Musk wanted to happen. While he didn’t tell advertisers, “Don’t advertise” and “Go fuck yourself” until November 2023, his general message got through much quicker. With 2022’s mass reinstatement of previously banned accounts raising serious questions about just what content might appear next to ads, GARM expressed the protected opinion and reasonable concern that Twitter might have to do a thing or two if it wanted to reassure the advertisers it represents. Unbanning all the nazis was not exactly the behavior of a company concerned with its advertising customers’ opinions.

At the same time, Musk disbanded his company's volunteer Trust and Safety Council, a group that did for Twitter specifically what GARM sought to do for internet advertising more generally. Nor did he stop there, forcing out safety exec Yoel Roth within weeks of finalization of his control. Roth’s replacement would last only seven months during which time research by the Center for Countering Digital Hate would “[flag] ads appearing next to extremist content.” (In a classic example of pre hoc ergo propter hoc, a separate Musk lawsuit against the CCDH blamed its 2023 reporting for the reduction in advertising spending its suit against GARM alleges began in 2022.)

Bizarrely, Twitter’s own complaint notes multiple attempts by GARM to work with Twitter to reassure the advertisers in its network that the company would be doing the work necessary to make spending on the platform as safe for their reputations as possible. When Musk failed to reassure them, advertisers fled, GARM members and non-members alike.

Yet somehow, despite advertisers fucking off exactly as Musk desired, X is now suing its own former customers for agreeing with each other (and Musk!) that advertising on the platform wasn’t a good idea. While GARM itself wasn’t a significant advertiser on Twitter and didn’t tell advertisers to fuck themselves, they did talk to their members when the members asked what was going on with the company’s content moderation and brand safety. Ipso ergo delenda est, GARM facilitated an illegal agreement among companies in the entertainment, car, tech, energy and other industries that advertising on any platform whose CEO retweets antisemitism as “actual truth” maybe possibly might not be worth the risk.

While the suit is long on antitrust invective alleging advertisers were forced into boycotting Twitter and costing Musk hundreds of millions of dollars, the GARM “about” page is pretty clear:

GARM is entirely voluntary. GARM members are free to use voluntary industry standards and implement practices and solutions in a way that makes sense for each individual member. GARM is not prescriptive and does not sanction members.

The complaint attempts many times and in various ways to portray the exact opposite, but the ultimate foundation for that claim is that membership is advertised as only open to any group or company that agrees with the GARM charter. That, of course, is no different from any voluntary association. The Sierra Club is for those who wish to protect the environment, use resources sustainably, and maintain ecosystems intact. If it encouraged its members not to buy gasoline powered cars (but did not cancel the memberships of those who did), that would hardly be illegal collusion in any sense recognizable under antitrust law.

To say all this is “somewhat bonkers” is to severely underestimate the guano production in Musk’s belfry.

There are many reasons to think that this action won’t be going much of anywhere. Though his related claims against Media Matters haven’t reached resolution, the CCDH suit mentioned above was anti-SLAPP’d out of court months ago for being “plainly punitive.” The Media Matters suit, scheduled for trial next spring, looks to be no more sound.

ArsTechnica quoted Check My Ads on their professional assessment of the merit of Musk’s underlying claims:

Advertisers have a First Amendment right to choose who and what they want to be associated with... Elon Musk and X executives have the right, protected by the First Amendment, to say what they want online, even when it's inaccurate, and advertisers have the right to keep their ads away from it.

All of which sounds pretty fair to Yr Wonkette!

[Ars Technica]