From today’s Texas Court of Appeals decision in Musk v. Brody, decided by Chief Justice (retired) J. Woodfin Jones, joined by Chief Justice Darlene Byrne and Justice Chari Kelly:
On June 24, 2023, two far-right groups—the Proud Boys and the Rose City Nationalists—tried to disrupt a Pride Night event in Portland, Oregon. The two groups, however, ended up clashing with each other, culminating in a violent confrontation caught on video. Although the Rose City Nationalists had arrived wearing masks, the Proud Boys removed some of their masks, exposing to the camera the faces of two Rose City Nationalists members.
The following day, the video of the brawl circulated widely on social media, becoming a popular topic of discussion. As part of that discussion, some right-wing influencers claimed that the Rose City Nationalists at the event were actually undercover federal agents or left-wing provocateurs posing as neo-Nazis. Several of these influencers tried to identify the two unmasked brawlers. For example, TwitterUser#1 tweeted, “Two unmasked members of Patriot Front. These are either federal agents masquerading as racists – OR-Leftists masquerading as far right. Do you know who these people are?”
Within hours, Twitter users tried to answer that question. Some wrongly identified Brody, then a student at the University of California, Riverside, as one of the unmasked brawlers. The basis for that false identification was apparently a resemblance between Brody and one of the unmasked men. TwitterUser#2 responded with a photo of Brody and a screenshot of a social-media post from Brody’s college fraternity, which included a sentence from the post stating that “[a]fter graduation [Brody] plans to work for the government.” TwitterUser#2 later posted additional images that included Brody’s name and stated that a “member of patriot front is ACTUALLY a political science student at a liberal school on a career path toward the feds.” Other Twitter users reposted the TwitterUser#2 posts about Brody.
When the video of the Portland brawl went viral on Twitter on June 25, Musk saw it and tweeted, “Who were the unmasked individuals?” TwitterUser#3 replied to Musk’s question by attaching the second post from TwitterUser#2, including Brody’s photograph and the screenshot from his fraternity’s social-media post. Musk responded, “Very odd.” TwitterUser#3 posted the same images that TwitterUser#2 had posted. Later that same day TwitterUser#4 posted the same images that TwitterUser#2 had posted and claimed that Brody was a federal agent posing as a “fake Nazi” at the rally. Musk responded, “Always remove their masks.” Brody does not claim that either of Musk’s posts on June 25 was defamatory.
Brody himself learned of his false identification on the evening of June 25. He received messages from his friends telling him that Elon Musk had posted a reply on Twitter asking about the rumor, and that people had shown him Brody’s name, photo, and the post from his fraternity’s social-media page.
Early the next morning, June 26, when he felt the situation was getting out of hand, Brody posted a one-minute video on his Instagram account stating that he was not part of the Patriot Front and had not been at the Pride Night event in Portland. He also posted debit-card receipts and time-stamped video footage showing that he was in California, not Oregon, when the brawl occurred.
Nonetheless, the next day, June 27, the debate continued to swirl on Twitter. TwitterUser#5 tweeted a zoomed-in still photo from the video of the brawl that depicted one of the unmasked men. Musk replied to this post with the comment, “Looks like one is a college student (who wants to join the govt) and another is maybe an Antifa member, but nonetheless a probable false flag situation.”
Brody was apparently not the person in the photo, and he sued Musk for defamation. The court of appeals held that Brody was a private figure, but that Musk was in any event not liable because his post was opinion:
[B]oth parties rely on Section 566 of the Restatement (Second) of Torts, which states that “[a] defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.” …
The simple [and not actionable] expression of opinion, or the pure type, occurs when the maker of the comment states the facts on which he bases his opinion of the plaintiff and then expresses a comment as to the plaintiff’s conduct, qualifications or character…. {The pure type of expression of opinion may also occur when the maker of the comment does not himself express the alleged facts on which he bases the expression of opinion … [but] both parties to the communication know the facts or assume their existence and the comment is clearly based on those assumed facts and does not imply the existence of other facts …. The assumption of the facts may come about because someone else has stated them or because they were assumed by both parties as a result of their notoriety or otherwise.} …
“[W]hen facts are merely implied, a listener is unable to assess the basis for that opinion. Where the underlying facts are fully revealed, however, ‘readers are free to accept or reject the author’s opinion based on their own independent evaluation of the facts.'” …
Musk’s comment did not expressly state the underlying facts on which he based his opinion. Accordingly, the issue in the present case is whether, in the words of Section 566, “both parties to the communication [knew] the facts or assume[d] their existence … because someone else has stated them or because they were assumed by both parties as a result of their notoriety or otherwise.” To again recap the factual background behind Musk’s comment, the following relevant tweets were posted after the June 24, 2023 brawl:
June 25:
- TwitterUser#2 posts separate images of the unmasked brawler and Brody and also posts a screenshot of Brody’s fraternity page in which Brody indicates he “plans to work for the government” after graduation.
- Separately, Musk tweets, “Who were the unmasked individuals?”
- TwitterUser#3 responds to Musk’s comment by forwarding to Musk the tweet by TwitterUser#2. The TwitterUser#3 tweet includes both the images of the unmasked brawler and Brody as well as the screenshot from Brody’s fraternity page.
- Musk replies to TwitterUser#3 saying, “Very odd.”
June 26:
- TwitterUser#4, a known right-wing influencer, posts the same screenshots posted by TwitterUser#3, headed by the message, “Remember when they called us conspiracy theorists for saying the feds were planting fake Nazis at rallies?”
- Musk replies to TwitterUser#4 with the comment, “Always remove their masks.”
- Brody posts a video on his own Instagram account declaring his innocence.
June 27:
- TwitterUser#5 posts a tweet stating, “Patriot Front ‘White Supremacist’ Unmasked As Suspected Fed.” Although that post included an image of the unmasked brawler, it did not include an image of Brody and did not include the screenshot of Brody’s fraternity page.
- Musk responds to the post by TwitterUser#5, stating, “Looks like one is a college student (who wants to join the govt) and another is maybe an Antifa member, but nonetheless a probable false flag situation.”
Although Brody is not named in Musk’s last comment, “it is not necessary that the individual referred to be named if those who knew and were acquainted with the plaintiff understand from reading the publication that it referred to plaintiff.” This has become known as the “of and concerning” element of a defamation action. The correct standard for evaluating the meaning of a communication is what a “reasonable reader” would believe ….
Here, Musk’s comment did not mention Brody by name but merely referred to “a college student who wants to join the government.” We believe a reasonable reader of Musk’s comment who had not seen the earlier tweets—even a reader who was familiar with Brody—would not have concluded that Musk’s comment was referring to Brody. Thus, only readers familiar with the earlier conspiratorial tweets about Brody as allegedly being one of the unmasked brawlers would have had reason to believe that Musk’s comment was referring to Brody. In order to satisfy the “of and concerning” element of his defamation action, therefore, Brody must necessarily rely on readers who had in fact seen the earlier tweets.
But because of their knowledge of the earlier tweets, and because of how closely Musk’s comment repeated the facts reflected in the prior tweets—i.e., that Brody was a college student who had indicated a desire to work for the government—those same readers would have known the facts underlying Musk’s opinion.
Given the circumstances, we can conceive of no reason why a reasonable reader of Musk’s comment, having knowledge of the relevant facts from the earlier Twitter posts, would have believed that Musk’s opinion was based on other, undisclosed facts. We therefore conclude that Musk’s comment on Twitter did not imply the existence of undisclosed defamatory facts. Accordingly, Musk’s comment falls into the “pure” type of opinion statement described by Section 566.
In addition, the overall context in which Musk’s comment was made is an important consideration in evaluating his potential defamation liability, i.e., the type of writing at issue must inform our analysis. It is a matter of common knowledge, we think, that Twitter posts were not known for rigorous factual accuracy. Rather, it was a platform known for free-flowing debate and the expression of uninhibited opinions. The audience reading Musk’s comment—users of Twitter—would have been aware of that. In that context, Musk’s use of the phrase “looks like …” would necessarily have served to alert readers that what followed was his evaluative opinion. At most, we believe Musk’s comment could be considered “merely an opinion masquerading as fact.” “A simple expression of opinion based on disclosed or assumed nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is.”
