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On the Trail, an occasional column by St. Louis Public Radio political reporter Jason Rosenbaum, takes an analytical look at politics and policy across Missouri.

Elon Musk’s fight against Media Matters gets backup from Missouri attorney general

Andrew Bailey, newly appointed Missouri Attorney General, speaks to the media on Tuesday, Jan. 3, 2023, after being sworn in as the state’s 44th attorney general at the Missouri Supreme Court in Jefferson City.
Brian Munoz
St. Louis Public Radio
Missouri Attorney General Andrew Bailey is joining a dispute between Elon Musk and Media Matters. But observers say his bid to prove the media watchdog agency fraudulently solicited Missourians may be difficult.

Missouri’s attorney general is intervening in a highly publicized legal fight between billionaire Elon Musk and a left-leaning media watchdog group documenting antisemitic content on his social media platform.

Attorney General Andrew Bailey announced last week he’s initiating an investigation against Media Matters for America, a Washington, D.C.-based group that writes articles critical of conservative media outlets and personalities. Media Matters also showcased some of the alleged deficiencies of Musk’s stewardship of X, the new name for Twitter, including how extremist accounts were thriving on the site.

“I believe in the right to free speech. I think that it's central to our republic and who we are as an American people and to our freedom,” Bailey said in an interview with St. Louis Public Radio. “I'm concerned that there may be entities that will lie, cheat and steal to take that freedom away from us.”

At issue are articles showing how ads appeared next to accounts that espouse antisemitic and pro-Adolf Hitler content. Musk sued Media Matters, accusing the group of “contriving” and “manufacturing” screenshots showcasing the juxtaposition.

Bailey announced last week that he’s looking into whether Media Matters fraudulently tried to solicit contributions from Missourians to persuade advertisers to flee X. In a letter sent to Media Matters, Bailey demanded a slew of documents including “communications and documents related to soliciting charitable funds from residents of Missouri.”

Bailey said the investigation could look into whether Media Matters violated the Missouri Merchandising Practices Act or antitrust laws. Even though X is based in San Francisco and Media Matters is based in Washington, D.C., Bailey said: “We need to know how many Missourians were solicited for contributions by Media Matters under what pretense and if Missourians were defrauded in this coordinated attack on X.”

Media Matters did not provide a response to Bailey’s letter.

Legal barriers for Bailey?

Technology news outlets like TechCrunch reported that X’s attorneys haven’t actually disputed that ads appear next to racist or antisemitic accounts, but that it’s a rare occurrence. If anything, Media Matters and their defenders say that contention validates the central thesis of the articles: that the so-called content controls aimed at protecting advertisers from being next to racist or antisemitic content aren’t completely effective.

“Far from the free speech advocate he claims to be, Musk is a bully who threatens meritless lawsuits in an attempt to silence reporting that he even confirmed is accurate,” said Media Matters CEO Angelo Carusone in a statement before the lawsuit was filed.

In his letter to Media Matters, Bailey alluded to X’s lawsuit, which accuses the group of “falsely suggesting that fringe, extremist content regularly appears next to content from corporate advertisers when in fact the opposite is true.” The articles from Media Matters, though, don’t claim that the ads regularly appear next to hateful content — but rather that the juxtaposition is possible if, as Media Matters did, a user follows X accounts that espouse racist or white nationalist viewpoints and accounts of major corporate brands.

Bailey said in an interview that X’s internal investigation showed that it was “exceedingly remote” that ads were placed next to “controversial speech.”

Others note that companies have decided to stop advertising on X not because of Media Matters, but because of Musk’s comments. The Media Matters articles came about shortly after Musk endorsed an antisemitic conspiracy theory known as the “Great Replacement Theory” that accused Jews of helping non-white people displace white majorities in countries like the United States. Musk ultimately apologized for making the comment in an interview in which he also cursed out advertisers who left X.

When asked if it was possible that advertisers decided to leave X because of Musk’s controversial statements, including the one about the Great Replacement Theory, Bailey replied: “I think that's what we're going to have to find out during our investigation.”

“I would point out that the allegation here is that Media Matters is who emphasized controversial speech,” Bailey said. “And if they didn't like what was being said on Twitter, they should have offered counterspeech to defeat those ideas with better ideas, instead of manipulating the algorithms to defraud the advertisers.”

Free speech as a defense

There could be multiple barriers to Bailey getting the information he wants in his investigation.

For one thing, Washington, D.C., has what’s known as a shield law that protects against news outlets having to turnover sources or work product to governmental agencies. While Bailey has said that he doesn’t consider Media Matters to be a news outlet, University of Missouri School of Journalism associate professor Jared Schroeder said many states have found that nontraditional news organizations can be protected by their shield laws.

“So it's very likely that they could use the shield law,” he said. “And yes, that would make it extremely difficult for him to succeed in gathering this information.”

Bailey said, “We'll see how a court would rule on that issue.” He added, “We're going to continue to pursue the matter because the Missouri Merchandising Practices Act under state statute gives the attorney general's office authority over not-for-profits.”

Dave Roland, an attorney with the Freedom Center of Missouri, said that since Media Matters is a nonprofit organization, there is court precedent around being forced to turn over information about the group’s donors.

He also said the fact that the articles in question do not feature an explicit ask for money may complicate efforts for Bailey to prove Media Matters engaged in fraudulent solicitation. The articles do feature a graphic on a sidebar asking for donations to make sure “right-wing lies don’t set the agenda” — but Musk isn’t featured in the illustration.

“Without that sort of a direct call for money being funneled to the organization, it's really difficult to imagine that it can be shoehorned into a statute that punishes fraudulent solicitation,” Roland said.

Bailey said the purpose of his investigation is to “see how many Missourians contributed and under what pretense and was there fraud in the solicitation of contributions.”

Roland added that Bailey’s efforts to go after Media Matters could prompt Democratic attorneys general to go after conservative entities that produce similar content — such as Newsbusters. He said it’s not surprising that right-leaning social media consumers are cheering Bailey’s efforts, since they see him as “someone who has the guts to use the left’s tactics against them.”

“What we need is a strong First Amendment principle that prevents anybody from abusing the legal process like this. And it needs to apply across the board,” Roland said.

Schroeder said the goal of Bailey's effort may have less to do with actually succeeding in court — and more about sending a message.

“They don't have to win in the end to still be victorious, because they're draining the resources of an organization that they don't like,” Schroeder said. “And they're causing other organizations to say: ‘Well, if we critiqued this behavior, or if we speak out about this, what if we get sued by Elon Musk? What if we get sued by a state attorney general? Then we're going to have to pay all this money that's going to drain our resources.’”

Bailey’s office is also part of a high-stakes lawsuit seeing if the federal government overstepped its bounds when it tried to get social media platforms to take down content. He’s said that if a governmental agency doesn’t like a tweet or a Facebook post, it should fight that speech with more speech — not try to persuade social media companies to take down the content.

When asked if it would be a better course of action for his office to merely speak out against Media Matters’ articles, Bailey replied, “I would say we're doing that in exposing this for what it is and fighting back with the superiority of our moral ideals as expressed through our words.”

“[That’s] a powerful form of weaponry in the battlefield for ideas, and that emphasizes my love of free speech as a foundational principle of our republic,” Bailey said. “But if Missourians were harmed, or have the potential to be harmed by fraudulent schemes and market manipulations, we're going to fight to protect Missourians as well.”

Jason is the politics correspondent for St. Louis Public Radio.