Elon Musk and freedom of expression: the results are not encouraging

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

Aly Song | Reuters

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

“Freedom of speech 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 at the event. announcement of the agreement on Monday.

Musk has characterized himself for years as a defender of the First Amendment and free speech, for example, defending himself in a libel suit after he called a critic a “pedo” (Musk won), and arguing that the SEC violated his rights in a settlement agreement they reached and revised after the agency accused him of securities fraud in 2018.

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

Speech of the workers

When it comes to free speech for his employees, Musk shows little tolerance.

Under his leadership, when Tesla fired employees, they were asked to sign separation agreements that included a strong non-disparagement clause with no end date. These types of deals aren’t uncommon in the industry, but Musk is far from a free speech absolutist here.

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

“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 way that could harm them or their business, business reputation or personal reputation.”

In the same document, Tesla demanded that terminated employees keep the details of the separation agreement itself concealed, except from their own lawyer, accountant, or immediate family, not even from other workers.

“The terms of this Agreement will be held in strict confidence by you and will not be made public or disclosed in any way,” the agreement reads. “In particular, and without limitation, you agree not to disclose the terms of this Agreement to any current or former employee or contractor of the Company.”

Like most large companies, Tesla also requires workers to sign an arbitration agreement upon hiring. This means that to speak freely in court, where their speech will become part of a public record, workers must first obtain an exemption from the arbitration agreement from a judge.

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

These allegations have recently come to the fore due to a recently uncovered investigation by the EEOC and a lawsuit filed by California’s civil rights agency, but the company has a long track record.

In August 2018, a former Tesla security employee, Karl Hansen, filed a complaint with the United States Securities and Exchange Commission, claiming he had been wrongfully terminated from his job as an investigator at the company’s battery plant in Sparks, Nevada, after raising 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 was a significant sum 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 safety concerns internally and then filing formal complaints with the offices. from the government when the company failed to fix and accurately communicate with customers about what it said were unacceptable fire risks at the company’s solar installations. The CPSC and SEC consider Henkes’ complaints evidence.

Free press

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

Memorably, the Tesla CEO chastised and cut off an analyst during a 2018 earnings call. “Excuse me, next, next. Boring, dumb questions aren’t cool,” the CEO said after a question about the capital needs of his business. The automaker had just posted its worst quarterly loss in its history. Musk later apologized for this and now sometimes skips calls about Tesla’s earnings.

Musk and Tesla have also asked reporters to sign nondisclosure agreements or show draft articles to the company for approvals before publication.

He brazenly called on his followers to edit his biography on Wikipedia. “I just looked at my wiki for the 1st time in years. It’s crazy!” Musk tweeted. “Btw can someone please delete ‘investor’. I hardly do any investing,” he said. His legions of followers obliged, editing the page to minimize his investments.

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

Under his leadership, Tesla stopped inviting some Electrek staff to company events after the site – which has become more of an electric vehicle blog in recent years – ran an article with this title, Tesla charges owners $1,500 for hardware they’ve already paid for. The story was accurate, albeit humiliating for Musk, as it deals with his company’s failure in the race to deliver self-driving vehicle technology to long-awaited customers.

Customer talk

Musk and Tesla have also sought — not always successfully — to silence customers. For example, Tesla used to require customers to sign agreements containing non-disclosure clauses as a precondition to repairing their vehicles.

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

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

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

Musk later lifted Tesla’s terms of access to the FSD beta saying 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 to assess potential safety flaws, any agreement that may prevent or deter participants in the Early Access Beta Release Program from reporting safety concerns at NHTSA is unacceptable,” the NHSA wrote in a letter to Tesla in October 2021.

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


Lawyers for Tesla and Musk have also routinely filed requests for confidential treatment for legal and commercial filings in the United States.

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

Lawyers on behalf of Tesla and Musk have also attempted to keep transcripts and videos of employee and executive testimony hidden in cases in Delaware Chancery Court and other courts.

Freedom of expression for me

Musk certainly exercised the right to free speech for himself and his companies.

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

“Some governments (not Ukraine) have told Starlink to block Russian news sources. We will only do this at gunpoint,” Musk wrote. “Sorry to be a free speech absolutist.”

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

At Tesla, Musk circumvented a requirement to have some of his tweets pre-approved by a securities law expert before posting them, despite the settlement agreement he reached with the SEC after it released them. accused of civil securities fraud.

Musk told Lesley Stahl in a 2018 interview that his tweets are generally unsupervised, even though a court ordered him to have some of them pre-approved by experts in compliance with US securities laws. Tesla if they contained information that could impact Tesla’s share price. During this interview, he said, “Hello First Amendment. Freedom of speech is fundamental…”

Assuming he really believes it, then Musk’s free speech absolutism is just an aspiration.

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

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