X ordered to turn over deleted posts in defamation case against Media Matters

FORT WORTH, Texas (CN) — A Texas federal judge ruled Thursday that Elon Musk’s social media platform X must hand over some deleted posts in its lawsuit against the left-leaning watchdog group Media Matters.

The platform, formerly known as Twitter, is suing Media Matters over November 2023 reports claiming X was showing ads for major brands next to white nationalist and pro-Nazi content, which led to an exodus of advertisers from the platform.

X claims Media Matters intentionally manipulated the platform’s algorithms in order to get ads to appear alongside extremist content and falsely presented that as what an average user experiences on X.

As part of its defense, Media Matters sought copies of posts from around fifteen users whose content was discussed in its reports that have since been deleted by the platform or by the users themselves.

Chief U.S. District Judge Reed O’Connor ordered X to produce posts that the platform had deleted, but he found that posts that users deleted themselves are protected from disclosure under federal law.

X had argued it was prohibited from turning over the deleted posts by the Stored Communications Act, a federal law passed in 1986 that prohibits “a person or entity providing an electronic communication service to the public” from divulging the contents of communications held “in electronic storage,” including communications stored “for purposes of backup protection of such communication.”

O’Connor, a George W. Bush appointee, found the law applies to the posts in question, ruling that X qualifies as an “electronic communications service” and that its retention of deleted posts constitutes storage for “backup protection.”

Media Matters argued the posts fall under an exception to the law for communications whose originators have consented to their disclosure, arguing that users who publicly post content on social media are inherently consenting to its disclosure.

O’Connor agreed the exception applied for posts deleted by the platform itself.

“By publicly posting content, a user has indicated that they do not intend to keep the communication private. And once X removes or deletes an already public post, there is no indication that the poster has withdrawn consent or would withdraw consent if given the opportunity,” O’Connor wrote. “Nor does the statute require inquiring whether a user still consents to disclosure. Rather, all that is required is lawful consent, which unless revoked, is given by a user when making a public post.”

But O’Connor ruled that this exception does not apply when users delete their own posts, as by deleting the content they are revoking consent to its disclosure, likening the situation to Fourth Amendment searches.

“Embracing defendants’ position would mean that a post made publicly only momentarily — whether by accident or upon reflection that the post was in bad taste — and then deleted would forfeit all SCA protections. Such a harsh result seems counter to the SCA’s goal of protecting a user’s expectation of privacy,” he wrote.

X Corp. and Media Matters did not respond to requests for comment on the ruling.