Back in the dark times when I actively practiced law – I gave up my partnership on December 31st after 30 years of litigating on behalf of everybody from individuals to Fortune 500 companies – one of the things I spent a lot of my time on was counterintuitive. I spent a lot of time telling people they didn’t have a good lawsuit and shouldn’t bring one because they were going to lose or at least not gain enough to make the litigation nightmare worth living through. After doing that job, you can look at a case and have a pretty good idea of where it will end up. Of course, every case looks it’s very best the day the client brings it to you – it’s only after you file suit that you start seeing the problems, often brought to your attention by your opponent. In any case, talking people out of getting into lawsuits – whether bringing them or not settling them early if they are being sued – is a big part of any good trial lawyer’s practice. So, when I say that Elon Musk should sue a bunch of people over this Nazi salute lie, I don’t say it lightly.
Defamation lawsuits are among the hardest cases to win, and they should be because they involve speech, and the great weight of presumption in the law is in favor of free speech. To that end, the First Amendment fully protects an enormous amount of lying, deceit, and generally obnoxious comments. The burden is even higher when you’re bringing a case as a public figure – we presume that people are allowed to say pretty much whatever they want about public figures with some narrow exceptions.
Well, regarding the Elon Musk Nazi salute hoax, those exceptions apply. And it’s very important to discipline both the regime media and the individual liars to stop such hoaxes. Elon can do that by suing and hitting these scumbags where it hurts – the wallet.
We’ve been subjected to a lot of hoaxes lately. My friend John Nolte, who was my first editor when I wrote for Breitbart starting about 15 years ago, has helpfully assembled a long list of recent hoaxes pushed by Democrats and their regime media minions. They include everything from the “Very Fine People” hoax to the “Hunter’s Laptop Is Russian Disinformation” hoax. The last eight years have been nothing but hoaxes, and this cynical tactic has nibbled away at the foundations of our political culture. You can’t trust any of the newspapers, or the networks, or any public officials. Not at all. They have no qualms about lying to your face. You know they’re lying, and they simply don’t care. So, they must be forced to care. And the way you force them to care is by taking millions and millions of dollars.
Defamation cases can lead to very significant verdicts. In my first defamation case, about 25 years ago, I won a verdict of over $3 million, and my client was just a regular guy, albeit one whose career was upended by deliberate untruths. But today, like everything else, the price of slander has gone up. Just the other day, a jury awarded $5 million in compensatory damages against CNN to a Navy vet CNN lied about, and CNN settled the case before the punitive damages award – which could’ve been 5 to 10 times the compensatory award – came in. ABC News paid $15 million to a charity on behalf of Donald Trump after that malignant dwarf George Stephanopoulos called him a “rapist” when, in fact, he is not a rapist. Who knows how much the Covington kid got from CNN in a confidential settlement?
Now, we have people and networks saying that Elon Musk flashed a Nazi salute out in public for some reason, with the facially derogatory implication that this demonstrates he supports Nazism. It’s insanely stupid, but some people are buying it. Yeah, Elon just spontaneously got out there and tossed a shout-out to Der Führer because reasons and shut up you’re probably a Nazi, too. But of course, there’s footage out there of Elon talking before the subject upper extremity gesticulation, and what he was talking about when he made this deliberately misinterpreted gesture was something totally not Hitler-related. It’s a total lie.
Everybody knows it, but they’re lying about it anyway. AOC is out there repeating the lie, and so is Senator Chris Murphy – he’s the Connecticut senator known for being dim rather than having won the Tet Offensive. They’re both lowlifes, and no one should expect more from them than rank dishonesty, but at some point, we have got to draw a line. The Speech and Debate Clause would prevent them from being sued if they had spewed this garbage in connection with their congressional duties, but they decided to take to X and lie about its owner. NPR did it too, which is a public service because it makes it much easier to defund this parasitical abomination. Other networks joined in. So did lots of Internet randos. Musk has a target-rich environment from which to choose his defendants for maximum effect.
Again, everybody knows this is a lie. It’s obvious. It’s indisputable. And that’s key. I’m not going to provide a primer on libel law here, but it’s important to understand that merely expressing an opinion cannot be the basis of a defamation action (except in some rare cases in some venues that do not apply here). AOC and Chris Murphy are free to call Elon a Nazi. That’s not actually a statement of fact but rather one of opinion in the sense that it means they perceive his belief system is that of the Nazis. Opinions are protected even if moronic. But, if they said Elon is a member of the Nazi Party, then that would be an assertion of fact, and that is potentially actionable.
Here, we’ve had various entities accusing Elon of tossing off a Nazi salute and thereby saluting Hitler and Nazism. That is a question of fact. It’s not one of opinion. You can tell the difference between facts and opinions because you can objectively prove a fact. For instance, neither AOC nor Chris Murphy could sue me if I to call them “dumbasses.” Let’s put aside that they would have to prove the falsity of the claim. This would be opinion because there are no objective criteria for being a “dumbass.” You can’t test it, so it’s not a fact. It’s an opinion – and it happens to be my opinion – so they couldn’t sue over it even if they could get over the many other hurdles in a defamation case.
But saying that Elon was rendering a Nazi salute is a yes or no question. It was either a Nazi salute, or it wasn’t. Elon Musk can prove it by simply showing the video of his speech in context, which is something his false accusers never do. That makes this scenario a litigation unicorn, a defamation claim that is potentially actionable.
I believe that Elon is now a resident of Texas, having left California – I get that because I now have a residence in Texas after living most of my life in California. Anyway, Texas is a great venue to bring this lawsuit. That’s part of the beauty of it. He could file it where he resides and where the defamation was published. Thanks to the Internet, the lie was published everywhere. Personally, I’d love to have a Texas venue for this case – I’m a Texas lawyer, but I am not looking for this case, thank you, though I’ve got great referrals if a lawyer is required. A Texas jury will probably be full of people with some common sense and the judges will probably be fair. It would probably get removed to federal court, and the federal judges are pretty good, too. So, this is a great place to submit the question to a panel of citizens who showed up for jury duty and ask them if it’s OK to falsely accuse somebody of throwing a “Sieg Heil.” I’m guessing a jury is going to say “No.” And I’m guessing the jury will then add to Elon's considerable wealth.
That wealth would allow Elon to fund the litigation, but it’s not really the money that’s the point. We’ve got to stop this lying. We’ve got to stop this hoaxing. We’ve got to stop this kind of dishonesty because you can’t have a functioning society if lying, as opposed to having a difference of opinion, is standard procedure in our political discourse.
Elon’s already done so much for America that it’s hard to ask him to do more. But forcing accountability upon people who knowingly lie from their positions of responsibility and authority is absolutely necessary to getting America back to where it belongs. Elon Musk has a right to participate in our politics without being falsely accused of being a Nazi. So do all of us. But until these politicians and regime media scumbags have to dig into their pockets and pay up, they’re going to keep doing it.
If Elon Musk were my client, I’d advise him to file suit.
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