Elon Musk: You're on notice
Dear Mr. Musk,
You are hereby on notice that your recent activities in support of Donald Trump could lead to significant personal liability, both civil and criminal.
You are aiding and abetting a convicted felon with a demonstrated history of inciting violence and civil unrest. The next time someone dies after Trump summons a violent mob and tells them to fight, or succumbs after Trump encourages hate rally attendees to “beat the hell” out of them, you could face liability as a co-defendant and/or co-conspirator.
If Trump is re-elected, he will enjoy expansive legal immunities you do not have. Even if he appoints you to regulate federal agencies you resent having to answer to, actions you undertake between now and January 6, 2025, are as a private citizen, not as a federal employee. An appointed position where you get to regulate your corporate regulatorsmay not confer the tort immunities you hope for in any event.
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You and your counsel may want to brush up on the following:
Election crimes
Federal law makes it a crime to offer money in an attempt to sway people to vote. 52 U.S.C. 10307(c) states that “Whoever knowingly or willfully … pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years, or both…,” as the warning letter you just received from the Justice Department suggested. The DOJ Election Crimes Manual specifies that an election bribe may be anything having monetary value, including cash and lottery chances.
When you announced that America PAC will be awarding $1 million every day until the election to a registered swing state voter who signs your petition on the 1st and 2nd amendment, you were clearly targeting Republican voters. (BTW, your schtick of “free speech absolutism” is asinine; the 1st A has never protected election fraud, consumer fraud, disinformation fraud of any type, threats, speech integral to criminal conduct, verbal assault, libel, defamation, incitement to criminality, conspiracy, or incitement to violence, but I digress.)
Your X activities are partially shielded from liability under Section 230 of the Communications Decency Act, but there are other applicable laws, including FEC regulations on in-kind campaign contributions. You paid $47 apiece to people who found others to sign a petition, which helped Trump target voters. You have spent in excess of $75 million on the pro-Trump America PAC. According to Open Secrets, you are also behind a disinformation initiative called Progress 2028, claiming ties to Kamala Harris, which is actually run by your own dark money network. ‘Building America’s Future,’ the dark money group at the helm, reportedly received over $100 million in funding from you and other donors.
Aiding and abetting acts of violence
Your legal exposure for abetting acts of violence may be even greater. Disinformation on X since you bought it is well documented, and has helped fuel racist far-right riots and attacks. It’s only a matter of time before you’re sued for the violence and solicitation of violence you’re helping Trump promote. The law has long held that a person who aids and abets a crime is generally criminally liable to the same extent as the person who commits the crime.
Encouraging political violence before, during or after the election will also subject you to laws governing criminal incitement. Manipulating algorithms, amplifying calls on X and elsewhere that encourage militia members and extremists to intimidate voters, or spreading enthusiasm for a “civil war” like you did in the UK, will support claims against you when they lead, predictably, to violence.
Dozens of cases invoking Trump in connection with violent criminal acts have already been identified; it’s only a matter of time before someone else gets killed. Bullets fired into the Democratic Party office in Phoenix, AZ last week are only the most recent example. The building’s glass front door was shattered by bullet spray; anyone sitting behind it would have been killed. The perpetrator, an extreme MAGA supporter, had more than 120 guns, 250,000 rounds of ammunition and a grenade launcher at his home.
History of Trump-inspired violence as prologue
You may protest that grenades and partisan acts of violence are too speculative to pin on you, or, alternatively, that you had no idea Trump would make good on his serial promises of retribution. But the civil law standard for ordinary negligence is simple: if you knew, or should have known, that someone (including Trump) would carry out Trump’s call for violence, you may be found liable for amplifying that call.
Whether references to violence are genuine threats or merely rhetorical depends on context and the surrounding circumstances. Here, there can be no doubt that Trump means it, as evidenced by his encouragement for the J6 mob and his failure to call them off for more than 3 hours while he watched them. Even if you and Trump claim you didn’t “intend” for MAGA supporters to commit acts of violence, the Supreme Court recently held that recklessness in using violent rhetoric is sufficient to support liability for violence that ensues.
You also may think that manipulating algorithms, posting/liking/re-posting disinformation, or amplifying calls for violence against Democrats is not enough to sustain legal liability. But a defendant who shares in the criminal desires of the principal, and acts in some affirmative manner in aid is liable, and the level of participation may be relatively slight. It is not hard to satisfy once the defendant's knowledge of the unlawful intent is established, and if you read any news outside the Fox bubble, you cannot lack knowledge that Trump intends to orchestrate fresh political violence.
To more fully preclude your “But I couldn’t have predicted violence” defense, Trump’s own high ranking military officials have warned that Trump’s calls for violence are real. Retired General Mark Milley and his wife have faced constant death threats following Trump’s incitements.
You are also no doubt aware that Trump has made public comments calling half the American people “the enemy within;” if you weren’t aware before, you are now. Within the last two weeks, Trump has promised to prioritize the prosecution of U.S. citizens using military force if necessary. His threat to sic the military on political rivals is the stuff of murderous regimes; Trump’s recently surfaced wish for generals who were “more like Hitler’s generals” surprised exactly no-one on the left.
Dark money, dark influence
Because you have been a great technology innovator, too many young men presume you are smarter than they are about other things, which elevates your actions on X to recklessness. After you bought Twitter, you restored accounts of far-right figures including white nationalist Nick Fuentes and conspiracy theorist Alex Jones. You also relaxed content moderation policies and terminated most of the company’s trust and safety and election integrity teams. If you didn’t intend to endanger people, at minimum it would appear reckless to a jury.
When you then post pro-Trump disinformation on your own account with nearly 200 million followers, and place the disinformation into users’ feeds as “recommended content” whether they want it or not, you exceed the bounds of protected “political speech.” You lured Trump back onto the platform after he was banned previously for incitement to violence following the J6 attack, so there is no way you can plead ignorance--Trump was banned for inciting violence by your own corporate predecessor.
In sum, Trump has been given a get out of jail card from the Supreme Court, but you have not, and Trump cannot pardon anyone for state crimes and judgements. Govern yourself accordingly.
Sincerely,
Sabrina Haake
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Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. She writes the Substack, The Haake Take.