Can’t talk, consulting with legal.
Elon Musk’s legal misadventures took another hilarious turn on Thursday. After waiving the single, most basic protection every acquisition negotiates guaranteeing he couldn’t legally weasel out of buying Twitter — despite faux legal ramblings from some on the legal analysis JV squad — and accidentally hiring, and then firing, competent lawyers, Musk managed to run face first into potential defamation and false advertising claims while trying to goof on celebrities who publicly slighted him. All around another day of 12-dimensional checkers for the boy genius over here.
After flirting with the idea for months now, Elon Musk took the occasion of 4/20 to finally blow up the legacy “blue checkmarks” of verified Twitter accounts like they were a massively expensive rocket. Twitter invited the formerly verified accounts to pay him $8/month to get the checkmark back, an offer that every serious person laughed at and Jonathan Turley absolutely accepted.
The decision to invalidate the only — for lack of a better term — check on internet chaos is already off to a great start.
Fantastic.
Again, most people rejected the offer to subscribe to Twitter Blue, but there were a few prominent accounts that still boasted a checkmark after the great purge. Like author Stephen King, whose account information noted — and still notes as of this writing — “This account is verified because they are subscribed to Twitter Blue and verified their phone number.”
But here’s the thing…
King wasn’t alone — another “King,” the @KingJames account of LeBron James, also retained the checkmark and purports that James is subscribed to Twitter Blue and has verified his phone number. Which he also hasn’t done.
Both King and James had previously made publicly clear that they were not going to subscribe to Twitter Blue.
Which brings us to yesterday, when everyone started losing their badges except King and James. And pretty quickly the Twitter Blue nouveau riche of basement-bound incels and bros who think Jordan Peterson makes some good points started jumping on them for being hypocrites and subscribing when they claimed they were too cool to pay.
To (nit)wit:
This is where Musk has launched himself into potential legal jeopardy. Because the company he runs is making the claim — to a very wide audience — that King and James have subscribed to Twitter Blue and verified their phone numbers, which is false.
And, in the case of Twitter Blue, the subscription itself “mainly serves to signal that you’re shamelessly willing to pay a right-wing billionaire to use Twitter.” That might cast the celebrities in a negative light all on its own, but you don’t even have to go that far because proclaiming that they subscribed amounts to stating as if it’s a fact that they are liars. Calling someone a liar can be an opinion… unless you know as a verifiable fact that they are not a liar. Like, say, if the speaker personally knew that King and James had not lied about subscribing.
Um.
He… just… admitted it? “It,” in this case, being that he knew for a fact that King was not subscribed to Twitter Blue despite the language displayed on King’s profile. This really happened. Musk would later expand on this and announce that he’s comping several high-profile accounts belonging to users — some of whom had made a point of saying they wouldn’t pay. Which made the whole thing feel like some bad attempt to troll users who had made the service look bad.
As a bar exam refresher: (1) A false statement purporting to be fact; (2) published or communicated to a third person; (3) causing some reputational harm; (4) and, where the victim is a public figure, if the statement is made with actual malice, meaning made with knowledge that it was false at the time made… spells potential defamation problems for Musk.
There’s at least enough here for a cease-and-desist letter and a complaint.
But wait — as they say — there’s more! Now that Musk’s slapped a price on the checkmark, hanging it on a user with millions of subscribers raises serious advertising issues. Before you shrug this off, imagine another company appropriating someone’s public profile and falsely saying “they subscribe to our service!” You can’t say Michael Jordan wears your knockoff sneakers, and you can’t say LeBron pays for your knockoff version of Twitter.
The revelation reported by Alex Heath that Twitter tried to get LeBron to agree to a comped account and the player never responded presents as an attempted endorsement deal that never got consummated… so the company just went ahead with it anyway. That’s a dodgy area where you’d want a legal department to preach caution.
Because saying someone subscribed when they didn’t sure looks like a false or misleading statement about Twitter that either actually deceived the public “or at least a tendency to deceive a substantial portion of the intended audience,” likely to influence purchasing decisions. That it robs King and James of the opportunity to profit off of their sponsorship means it’s harming them.
And the Federal Trade Commission is all over folks faking endorsements online. Basically everywhere you turn, Musk is stepping on legal rakes.
Look, Musk doesn’t need our legal advice — he’s got fourth-year associates running legal departments and his mostly imaginary hardcore litigation department for that — so we are explicitly not giving legal advice here: you should take away those checkmarks or change the verbiage to note that they aren’t paying. And quickly. That’s just the right thing to do regardless.
Earlier: Twitter Complaint Demonstrates That Every Lawyer, Everywhere, Always Is Smarter Than Elon Musk
Elon Musk Proves His Commitment To New Strategies By Hiring A 4th Year Lawyer To Head The Legal Side Of Twitter
Elon Musk Rights ‘Error’ Of Hiring Competent Biglaw Firm
Joe 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.
