The following can be attributed to Alex Abdo, the Knight Institute’s litigation director:

“​​This is a disturbing move that the company should reverse. The public relies on journalists and researchers to understand whether and how the platforms are shaping public discourse, affecting our elections, and warping our relationships. One effect of X Corp.’s new terms of service will be to stifle that research when we need it most.”

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org.

The Knight First Amendment Institute at Columbia University, the American Civil Liberties Union, the ACLU Foundation of Northern California, and the Electronic Frontier Foundation, filed an amicus brief in the case, arguing that private companies should not be allowed to wield breach of contract claims as a weapon to punish criticism, and to secure damages stemming solely from claimed reputational harm resulting from that criticism. 

“This is an important decision that sees Elon Musk’s lawsuit for what it is—an effort to punish his critics for constitutionally protected speech and to deter researchers from studying his platform,” said Alex Abdo, litigation director of the Knight First Amendment Institute at Columbia University. “Society needs reliable and ethical research into social media platforms, and often that research relies on being able to study publicly available posts. Musk’s lawsuit imperiled that kind of research by threatening it with ruinous liability, but thankfully, the court shut down his case.” 

In this case, CCDH engaged in scraping to inform the public of instances when X failed to remove posts that CCDH deemed dis- and mis-information, despite evidence the content violated X’s content guidelines. X accused CCDH of obtaining its data illegally, and claimed that its reports drove advertisers away from the site. The groups argued in their brief, however, that scraping when done in the context of public interest research is part and parcel of the subsequent public interest speech it enables. 

The court dismissed X’s suit, writing in its opinion that efforts to use an anti-scraping contract term to bypass the high standard for defamation claims was impermissible and noting that the lawsuit was about punishing CCDH for its speech criticizing X.  

“The court’s ruling reaffirms that vital First Amendment protections apply to researchers and journalists who use digital tools like scraping to inform the public about the practices of powerful platforms,” said Esha Bhandari, deputy project director of the ACLU’s Speech, Privacy, and Technology Project.   

The speech of research organizations like CCDH as well as academics and journalists—in many instances made possible only by scraping—has shed necessary light on a panoply of concerns that powerful social media platforms have failed to independently monitor and correct, and has provided crucial information for regulators to take enforcement action. Such public interest research serves as a key accountability mechanism to reveal the platforms’ content moderation choices and privacy policies and practices.  

“The district court rightly saw through X's chilling attempt to twist the Computer Fraud and Abuse Act and contract law to retaliate against a nonprofit that published critical reports regarding hateful content on X,” said Cindy Cohn, executive director of the Electronic Frontier Foundation. “The First Amendment and California's anti-SLAPP statute protect anyone who scrapes publicly available websites and publishes newsworthy information about the data.”

“This lawsuit was nothing more than a vain attempt to stymie independent research into an influential social media platform. The court’s decision today is a much-needed reminder that free speech includes the right to investigate and criticize Elon Musk and X,” said Jake Karr, deputy director of NYU’s Technology Law & Policy Clinic, which helped prepare the friend-of-the-court brief. “And it serves as a clear example for powerful corporations and individuals in the tech industry—it’s not so easy to abuse the U.S. legal system to silence criticism and evade public accountability.”

Learn more about the case and read the opinion here. 

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org.

The brief argues that when a party attempts to use an anti-scraping contract term to bypass the high standard for defamation claims and circumvent public policy protections for speech that contributes to public discourse, a court should decline to enforce the contract term. In this case, a public policy protecting speech in the public interest is reflected in the federal First Amendment, California’s constitutional equivalent provision, and California’s anti-SLAPP (Strategic Lawsuit Against Public Participation) law. Scraping when done in the context of public interest research is part and parcel of the subsequent public interest speech it enables.

Courts cannot, and should not, allow private companies like X to wield breach of contract claims as a weapon to punish criticism and to secure damages stemming solely from claimed reputational harm resulting from that criticism.

“If the companies are able to wield terms of service as a cudgel against public-interest research they don’t like, much of the research we need to hold them accountable simply would not happen,” said Ramya Krishnan, senior staff attorney at the Knight First Amendment Institute at Columbia University.

In this case, CCDH allegedly engaged in scraping to inform the public of instances when X failed to remove posts that CCDH deemed dis- and misinformation, despite evidence the content violated X’s content guidelines.

“Allowing X to hold CCDH liable for breach of contract will create significant dangers for other researchers and journalists seeking to use basic digital tools like scraping to provide the public with insight into the powerful platforms that we all now rely on for information,” said Esha Bhandari, deputy project director of the ACLU’s Speech, Privacy, and Technology Project.

The speech of research organizations like CCDH, as well as academics and journalists—in many instances made possible only by scraping—has shed necessary light on a panoply of concerns that powerful social media platforms have failed to independently monitor and correct, and has provided crucial information for regulators to take enforcement action. Such public interest research serves as a key accountability mechanism to reveal the platforms’ content moderation choices and privacy policies and practices.

“Companies like X Corp. can’t be allowed to use their terms of service to bully and shut down researchers who provide the public with valuable insights into the platforms on which we rely for information and communication,” said Cindy Cohn, executive director of the Electronic Frontier Foundation.

The brief was prepared with the significant contributions of Jake Karr, deputy director of NYU’s Technology Law and Policy Clinic, and law students Rebecca Delaney and Maeve O’Brien.

Read today’s brief here.