Jaap Arriens/NurPhoto via AP
Tesla isn’t the only one of Elon Musk’s companies in business trouble. The site formerly known as Twitter (hereafter just Twitter, I refuse to use Musk’s ridiculous new name), for which he paid $44 billion back in 2022, pretty much has to be losing money hand over fist. Though Musk has slashed staffing to the bone, and closed multiple offices around the world (including Twitter’s headquarters in San Francisco), revenue has fallen even faster. The company made just $114 million in the second quarter of this year—a decline of 53 percent compared to two years ago—which is almost certainly not even close to the quarterly interest payment on the loan Musk used buy the company.
The blame lies with Musk’s management decisions. Among the people Musk fired were much of the trust and safety team tasked with moderating hateful or illegal content. Musk has also personally reinstated the accounts of numerous far-right extremists, including at least one person who posted a screenshot from one of the most notorious examples of child sexual abuse material in history. Musk also fired much of the ad sales team, leading some advertisers to bail on the platform due to a buggy backend or no sales rep to contact.
In response, Musk has gone the traditional route of the self-made bootstrapping entrepreneur: run crying to the government for help. He, joined by right-wing YouTube clone Rumble, has filed a lawsuit against the World Federation of Advertisers, Unilever, Mars, CVS, and Ørsted, accusing them of conspiring with the Global Alliance for Responsible Media (GARM) to “withhold billions of dollars in advertising revenue,” and demanding damages and injunctive relief under antitrust laws. Effectively, Musk wants the government to force these companies to give him hundreds of millions of dollars.
The first thing to note about this is that Musk, like so many other right-wing activists, is doing some blatant judge-shopping. He filed the lawsuit in the Northern District of Texas so he would be highly likely to draw the notorious crank Judge Reed O’Connor, which did happen. (Indeed, O’Connor is also currently overseeing another Musk lawsuit against Media Matters for reporting negatively on Twitter. Gotta love these free-speech absolutist billionaires.) Attempting to get a particular judge known to have favorable political views is prima facie proof that one does not believe in the neutral merits of the lawsuit, or at least wants to render any reasonable rebuttals to the case irrelevant.
That aside, the actual argument of the lawsuit is so bizarre it is somewhat hard to imagine even a hack fraud like O’Connor taking it seriously (though he certainly might). It is taken more or less wholesale from a recent report from the House Judiciary Committee, chaired by Rep. Jim Jordan (R-OH), which accuses GARM of “colluding to suppress voices and views disfavored by the leading marketers at the world’s largest companies and advertising agencies” and hence violating antitrust laws.
Insofar as GARM is advocating a Twitter boycott, it is doing it because Elon Musk’s stupid and erratic decisions have made advertising on Twitter highly risky in business terms.
The report doesn’t really cite any evidence of this collusion: the claims of an anonymous GARM member here, an email asking to arrange a meeting there, or a member advertising company seeking a briefing about Musk’s takeover of Twitter. Much is made of a survey of members that suggests those individual members, not GARM, have the agency to continue advertising; the survey wasn’t even about whether advertisers should remain on Twitter.
The Sherman Antitrust Act and other laws prohibit “unreasonable” restraint of trade, which can include boycotts. But hitherto this has meant clearly anti-competitive behavior—things like John D. Rockefeller using his railroad monopoly to lock up control of the national oil supply, or more recently, Google paying kickbacks to other companies to cement its dominance in the online search market.
If GARM were boycotting Twitter because the social media site brought attention to articles about GARM members’ unethical business practices, that probably would be illegal. But the actual point of the organization is to help advertisers ensure brand safety—that is, preventing their advertisements from appearing next to content their customers might find objectionable, like violence, bigotry, or simple unpleasantness. Claims from brands about “acting responsibly” notwithstanding, this is entirely about money. A key goal of an advertisement is to build positive associations with the brand or product—when you see a Ford F-150, for instance, Ford wants you to think of virile construction workers, or exciting outdoor adventures. They don’t want you to think of Holocaust denial, or a kitten being thrown in a blender.
GARM is just an organization helping brands carry out part of their core business strategy—indeed, something that is highly relevant to whether their advertising works at all. Industry associations do this kind of thing all the time.
Insofar as GARM is advocating a Twitter boycott, it is doing it because Elon Musk’s stupid and erratic decisions have made advertising on Twitter highly risky in business terms. As Noam Chomsky could tell you, media companies that want advertising money have to make themselves advertiser-friendly. When Musk was asked if he would do that, in a public interview, he told the companies to “go fuck yourself.” Those would not seem to be the words of a person honestly interested in doing business—more like a petulant middle-schooler who wants the police to arrest people for refusing to be his friend.
The absurd implications here barely need to be mentioned. By Musk’s logic, any advertiser that has not bought ads from someone selling them would seemingly provide grounds to sue. As we at the Prospect can sadly testify, brand safety often precludes any kind of political content whatsoever. Most advertisers don’t want to be associated with even the slightest controversy—they want you in a happy fugue state after watching 14 consecutive episodes of The Big Bang Theory, lovingly stroking your credit card. Could we sue the handful of companies—OK, practically all of them—that haven’t run ads on our site? (We’ll get right on that.)
But perhaps most importantly, advertising is itself a form of speech. It is media meant to be seen, read, or heard. And if we grant Musk and Jordan’s assertion that GARM is engaged in a political boycott of Twitter for the sake of argument, that means it should be even more protected under the First Amendment. To force advertising companies to do business with another company they otherwise would not do, because they dislike its politics, would be a straightforward and egregious violation of free-speech rights—and the kind of rights that tend to matter a lot in modern American jurisprudence, namely those of corporations. It also happens to be the constitutional amendment people like Elon Musk spend a lot of time claiming to robustly defend; he is, in his words, a free-speech absolutist.
Still, if the past several years of right-wing “jurisprudence” have illustrated anything, it is that a great many Republican judges will trample over the law, precedent, and plain common sense to get what they want. We’ve seen this story before: The House GOP cooks up some crackpot report, a right-wing billionaire files a lawsuit, and some fruitcake Republican judge rubber-stamps it. The law barely enters into the equation.
