EFF to Court: Reject X’s Effort to Revive a Speech-Chilling Lawsuit Against a Nonprofit

This post was co-written by EFF legal intern Gowri Nayar.

X’s lawsuit against the nonprofit Center for Countering Digital Hate is intended to stifle criticism and punish the organization for its reports criticizing the platform’s content moderation practices, and a previous ruling dismissing the lawsuit should be affirmed, EFF and multiple organizations argued in a brief filed this fall. 

X sued the Center for Countering Digital Hate (“CCDH”) in federal court in 2023 in response to its reports, which concluded that X’s practices have facilitated an environment of hate speech and misinformation online. Although X’s suit alleges, among other things, breach of contract and violation of the Computer Fraud and Abuse Act, the case is really about X trying to hold CCDH liable for the public controversy surrounding its moderation practices. At bottom, X is claiming that CCDH damaged the platform by critically reporting on it.

CCDH sought to throw out the case on the merits and under California’s anti-SLAPP statute. The California law allows lawsuits to be dismissed if they are filed in retaliation for someone exercising their free speech rights, known as Strategic Lawsuits Against Public Participation, or SLAPPs. In March, the district court ruled in favor of CCDH, dismissed the case, and found that the lawsuit was a SLAPP.

As the district judge noted, X’s suit “is about punishing the Defendants for their speech.” It was correct to reject X’s contract and CFAA theories and saw them for what they were: grievances with CCDH’s criticisms masquerading as legal claims.

X appealed the ruling to the U.S. Court of Appeals for the Ninth Circuit earlier this year. In September, EFF, along with the ACLU, ACLU of Northern California, and the Knight First Amendment Institute at Columbia University, filed an amicus brief in support of CCDH.        

The amicus brief argues that the Ninth Circuit should not allow X to make use of state contract law and a federal anti-hacking statute to stifle CCDH’s speech. Through this lawsuit, X wants to punish CCDH for publishing reports that highlighted how X’s policies and practices are allowing misinformation and hate speech to thrive on its platform. We also argue against the enforcement of X’s anti-scraping provisions because of how vital scraping is to modern journalism and research.

Lastly, we called on the court to dismiss X’s interpretation of the CFAA because it relied on a legal theory that has already been rejected by courts—including the Ninth Circuit itself—in earlier cases. Allowing the CFAA to be used to criminalize all instances of unauthorized access would run counter to prior decisions and would render illegal large categories of activities such as sharing passwords with friends and family.

Ruling in favor of X in this lawsuit would set a very dangerous precedent for free speech rights and allow powerful platforms to exert undue control over information online. We hope the Ninth Circuit affirms the lower court decision and dismisses this meritless lawsuit.