Elon Musk and freedom of expression: the record is not encouraging

Tesla Inc CEO Elon Musk attends the World Artificial Intelligence Conference (WAIC) in Shanghai, China on 29 August 2019.

Aly’s Song | Reuters

Tesla and SpaceX CEO Elon Musk, the world’s richest person on paper, is buying Twitter, the social media platform he has relied on for years to promote his interests and shape his public image.

“Freedom of expression is the foundation of a functioning democracy, and Twitter is the digital public square where issues vital to the future of humanity are debated,” Musk said in a statement when the deal was announced Monday.

Musk has characterized himself as a defender of the First Amendment and free speech for years, for example, defending himself in a defamation lawsuit after calling a critic a “pedophile” (Musk won) and arguing that the SEC violated their rights in a settlement agreement they signed and reviewed after the agency charged him with securities fraud in 2018.

But as The Atlantic, Bloomberg and others have pointed out, Musk’s defense of free speech seems to apply primarily to his own speech or that of his supporters and supporters. TechDirt argues that Musk lacks a serious understanding of free speech, let alone content moderation.

workers speech

When it comes to the freedom of expression of his employees, Musk shows little tolerance.

Under his leadership, when Tesla has laid off employees, they are required to sign separation agreements that include a strong non-disparagement clause with no end date. These kinds of deals are not uncommon in the industry, but Musk is far from a free-speech absolutist here.

A copy of one such Tesla agreement, shared with CNBC by a former employee fired in 2018 (who did not sign the agreement) read:

“You agree not to disparage Tesla, the Company’s products, or the Company’s officers, directors, employees, shareholders, and agents, affiliates, and subsidiaries in any manner that could be detrimental to them or their business, business, or personal reputation.” .

In the same document, Tesla required laid-off employees to keep details about the separation agreement itself hidden from their own lawyer, accountant or immediate family, not even from other workers.

“The provisions of this Agreement will be held in the strictest confidence and will not be published or disclosed in any way,” the agreement said. “In particular, and without limitation, you agree not to disclose the terms of this Agreement to any current or former Company employee or contractor.”

Like most large companies, Tesla also requires workers to sign an employment arbitration agreement. That means speaking freely in court, where their speech will become part of a public record, workers must first obtain a waiver of the arbitration agreement from a judge.

Under Musk’s leadership, dozens of Tesla workers have reported racist, sexist and other harassment, discrimination and unsafe working conditions. Many have also alleged retaliation after speaking out about the issues.

These allegations have been in the spotlight recently due to a recently revealed investigation by the EEOC and a lawsuit by the California civil rights agency, but the company has a long history.

In August 2018, a former Tesla security employee, Karl Hansen, filed a complaint with the US Securities and Exchange Commission saying he was wrongfully terminated from his job as an investigator at the company’s battery plant in Sparks, Nevada, after sounding the alarm about the theft of tens of millions of dollars worth of raw materials there. Tesla hid the theft from shareholders, he alleged, even though it represented a significant amount of money for the automaker at the time.

In November 2020, former Tesla employee Stephen Henkes said he was fired from his job at Tesla on August 3, 2020, after raising security concerns internally and then filing formal complaints with government offices, when the company failed to solved or accurately communicated with customers. what he said were unacceptable fire risks at the company’s solar installations. Both the CPSC and the SEC are considering Henkes’ complaints as evidence.

Free Press

Musk has repeatedly sought to control what journalists, bloggers, analysts and other researchers say about his businesses, his products and himself.

It’s worth recalling that Tesla’s CEO chided and interrupted an analyst on an earnings call in 2018. “Excuse me, next, next. Boring, stupid questions are no good,” the CEO said after a question about capital requirements. of your company. The automaker had just posted its worst quarterly loss in its history. Musk later apologized for this and now sometimes skips Tesla earnings calls.

Musk and Tesla have also asked reporters to sign NDAs or show draft stories to the company for approvals before publishing.

He has brazenly called on his followers to edit his biography on Wikipedia. “I just looked at my wiki for the first time in years. It’s crazy!” Musk tweeted. “By the way, can someone remove ‘investor’? I basically do zero investments,” he said. His legions of followers complied, editing the page to de-emphasize his investment.

Musk even takes offense at fan blogs when they write about Tesla’s shortcomings.

Under his direction, Tesla stopped inviting some Electrek staff to company events after the site, which has become an electric vehicle blog in recent years, published a story with this headline, Tesla is charging owners $1,500 for the hardware they already paid for. The story was accurate, if humiliating for Musk, because it dealt with the failure of his company in the race to deliver autonomous vehicle technology to long-waiting customers.

clients speech

Musk and Tesla have also sought, not always successfully, to silence customers. For example, Tesla used to force customers to sign agreements containing confidentiality clauses as a prerequisite to repairing their vehicles.

In 2021, Tesla asked customers to agree not to post criticism on social media about FSD Beta, an experimental driver assistance software package that some Tesla owners could test using their own cars and unpaid time to do so.

In an agreement that Tesla sent to drivers earlier this year to access FSD Beta, the company asked them to “keep their experiences in the program confidential” and not to “share any information about this program with the public,” including taking screenshots, creating blog posts or posts on social networking sites.

Tesla named Facebook, Instagram, Reddit, TikTok, Snapchat and YouTube as sites where owners should not share information about using the FSD Beta, according to a copy of the full agreement obtained by CNBC.

Musk later lifted Tesla’s terms for accessing FSD Beta saying that no one was obeying the agreement anyway. But the practice prompted an investigation by the federal vehicle safety authority, NHTSA.

“Because NHTSA relies on consumer reports as an important source of information in evaluating potential security flaws, any agreement that may prevent or discourage Early Access Beta Release Program participants from reporting security concerns to NHTSA is unacceptable,” the NHSA wrote in a statement. letter to Tesla in October 2021.

Meanwhile, in China, Tesla sued customers who complained of safety issues with their cars and sued a social media influencer for defamation. Influencer Xiaogang Xuezhang posted a video demonstrating problems with automated emergency braking systems from Tesla and other automakers.


Lawyers for Tesla and Musk have also consistently filed requests for confidential treatment for legal and business filings in the US.

Among other things, Tesla tried to hide from public view: vehicle safety information that federal auto regulators sought from the company as a routine investigative practice, and business information that Tesla used to apply for tax subsidies from the Authority. California Alternative Energy and Advanced Transportation Financing Fund. .

Lawyers for Tesla and Musk have also tried to keep transcripts and videos of employee and executive testimony hidden in cases before the Delaware chancery court and other courts.

freedom of expression for me

Musk has certainly exercised free speech rights for himself and his companies.

He recently said SpaceX’s satellite internet service Starlink would keep Russian news sources online, despite what Musk said were calls to block them by unnamed governments amid Russia’s brutal invasion of Ukraine. of Putin.

“Some governments (not Ukraine) have told Starlink to block Russian news sources. We won’t unless at gunpoint,” Musk wrote. “I’m sorry I’m a free speech absolutist.”

On the labor front, Musk is also fighting an administrative court ruling that said he should remove a tweet from his feed because it violates workers’ rights. The tweet, posted in 2018, read: “Nothing stops the Tesla team at our auto plant from voting for the union. They could tmrw if they wanted to. But why pay union dues and give up stock options to change anything?”

At Tesla, Musk has sidestepped a requirement that some of his tweets be pre-approved by a securities law expert before posting them, despite the settlement agreement he reached with the SEC after it accused him of civil securities fraud.

Musk told Lesley Stahl in a 2018 interview that his tweets are generally unmonitored, even though a court ordered that some of them be pre-approved by Tesla securities law enforcement experts if contained information that could affect Tesla’s stock price. During that interview he said, “Hello First Amendment. Free speech is fundamental…”

Assuming he actually believes that, then Musk’s free speech absolutism is just wishful thinking.

But by controlling the social network, Musk can protect his ability to continue to use Twitter to promote his companies, his investments and himself, as he wants to be seen.

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