Enlarge / Tesla CEO Elon Musk speaks at the Gigafactory opening ceremony in Austin, Texas on April 7, 2022.
Getty Images | Suzanne Cordeiro
On Wednesday, Tesla CEO Elon Musk asked a judge to deny a request for a gag order that would prevent him from continuing to publicly claim that his infamous “funding secured” tweet was accurate.
The request for an injunction “requests this court to trample on Elon Musk’s First Amendment rights by preventing him from publicly discussing this case or the facts underlying it. Plaintiff’s motion cannot be reconciled with the constitution’s guarantee of free speech and should be denied,” Musk’s attorney wrote in a court filing on Wednesday.
Musk and Tesla are facing a class action lawsuit in the U.S. District Court for the Northern District of California over Musk’s August 2018 filing claim that he had secured funding to take Tesla private. Musk and Tesla previously agreed to each pay $20 million in penalties and control Musk’s social media statements to resolve a lawsuit filed by the Securities and Exchange Commission alleging that “Musk’s misleading tweets” about Tesla’s privatization drove up the share price “and led to significant market disruptions.”
Prosecutors: Musk’s false claims are ‘poisoning the jury’
Musk acknowledged that no financial deal had been finalized, but he argued that it was close enough to justify his claim that funding was “secured.” In an appearance at a TED conference last week, Musk again claimed that “funding was indeed secured,” and he called the SEC “bastards.”
After Musk’s TED appearance, the class-action lawsuit’s lead plaintiff requested an injunction prohibiting Musk from “speaking to the press, media, news and other public entities about this case or the underlying facts until the end of the trial.”
“Musk’s extensive pre-trial media interviews pose a clear danger and serious risk to a fair trial because they attract pre-trial publicity, poison the jury, and affect the outcome on the eve of trial,” plaintiff Glen Littleton argued. Advertisement
Littleton’s filing states that the federal judge overseeing the case has already ruled that Musk’s tweets about Tesla’s privatization “were false and misleading, and that Musk made these false statements recklessly and with full knowledge of the facts contained in his.” misrepresented tweets”. District Judge Edward Chen’s ruling is still sealed.
“The truth of the August 7, 2018 tweets and Musk’s state of mind at the time of publication are no longer subjects for the jury to decide. Therefore, Musk’s continued public statements on these issues serve only to potentially prejudice the jury in this case and affect their deliberations during the trial,” the plaintiff’s filing reads.
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Musk countered, “Both the Ninth Circuit Court and the Supreme Court have clarified that extraordinary facilitation of prior restriction of a litigant’s speech is subject to rigorous scrutiny and is permissible only where there is a clear and identifiable threat of corrupting an entire community.” B. is discovered through pre-trial publicity, such that it would be impossible to locate twelve objective jurors. This is not one of those rare cases.
Musk’s court filing defended his comments at the TED conference:
Mr Musk is in the midst of a public bid to take Twitter private, a venture that has sparked debate about the inappropriate censorship of speech. In this regard, the media has drawn comparisons to Musk’s previous consideration of taking Tesla private. The recent conference Musk attended is a prime example. TED’s Chris Anderson asked Mr Musk if funding was secured for the Twitter deal, an apparent nod to the events underlying the case. Mr. Musk should be allowed to respond meaningfully and truthfully to such requests and not be required to withhold false implication in questions put to him by the media. Plaintiff’s request for a gag order is not designed to restrict any narrow forms of speech to ensure a fair trial; it is instead intended to silence Mr Musk’s statements outside of the context of this litigation.
Musk’s filing also noted that he is seeking to get out of the SEC settlement in a separate court filing. Musk claims he was “forced into signing” the contract with the SEC.
“That agreement contained the same allegations that are at issue in this case and Mr Musk will no doubt be called upon by the media and his shareholders to speak out on this ongoing dispute. The imposition of a far-reaching and unjustified gag order in this case would affect Musk’s rights also in connection with this proceeding,” Musk’s filing said.
No hearing has been scheduled on the request for a restraining order and it is not clear when the judge will rule.