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Elon Musk Understands Free Speech Even Less Than You Thought He Did

Federal judge offers some schooling.

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TIME Person of the Year

(Photo by Theo Wargo/Getty Images for TIME)

Laying the groundwork for his new free speech utopia, Elon Musk Tweeted yesterday that “By ‘free speech’, I simply mean that which matches the law.” His message amounted to legal gibberish. But mere hours after that Tweet, Judge Lewis Liman elaborated on the proper scope of free speech… to Musk’s detriment.

Earlier today, we posted an article titled Elon Musk Already Breached The Twitter Takeover Agreement? With His Stellar Record Of Following The Rules? — a callback to Musk’s clashes with the Securities and Exchange Commission over his proclivity for posting market-moving claims on social media. As it happens, Musk had challenged the outcome of that SEC case and almost immediately after publishing that first story, the United States District Court for the Southern District of New York officially detailed Musk’s ongoing problem adhering to his own agreements.

Musk hoped to lift the consent decree he signed resolving the SEC’s investigation of a series of his “false and misleading statements.” Musk agreed at the time to a number of restrictions on how he communicates company information to the public. Since then he’s, shall we say, brushed up against this order. He claimed that restrictions on such moves as polling followers on whether or not he should make a stock sale that would depress Tesla share prices violate his free speech rights.

The short version of Judge Liman’s opinion is… NOPE!

Musk argues that the consent decree in this case should be terminated because (1) it “intrudes on Mr. Musk’s First Amendment right to be free of prior restraints,”  “has been misused to launch endless, boundless investigation of his speech,” and (3) was extracted from Musk through the exercise of economic duress. None of the arguments hold water.

Remember when Musk said his definition of free speech is what “matches the law”? Well, does the consent decree?

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With regard to the First Amendment argument, it is undisputed in this case that Musk’s tweets are at least presumptively “protected speech.” At the same time, however, even Musk concedes that his free speech rights do not permit him to engage in speech that is or could “be considered fraudulent or otherwise violative of the securities laws.” The consent decree thus does not impose obligations that have “become impermissible under federal law.”

Dude, that’s your own standard! Tough break.

Musk loses bid to end SEC agreement on oversight of Tesla tweets [Reuters]

Earlier: Elon Musk Already Breached The Twitter Takeover Agreement? With His Stellar Record Of Following The Rules?

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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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