Walter Olson
Missouri Attorney General Andrew Bailey, a conservative, has sent a letter to left‐leaning advocacy group Media Matters notifying them that he has placed them under legal investigation for having published criticisms of X, the Elon Musk social media site formerly known as Twitter, in such a way as to cause the site to lose advertisers. In doing so, Bailey would appear to be following in the ignoble footsteps of other elected officials who’ve sought to investigate and punish private advocacy on issues of public interest.
Longtime readers of this site will recall the disgraceful episode in the 2010s in which liberal attorneys general from a number of states investigated supposed wrongful advocacy by nonprofits and businesses on climate change issues, the First Amendment notwithstanding. (The enforcement action that went furthest, against Exxon over claimed misstatements to investors, fell flat on its face in a New York courtroom.) The campaign also included harassing subpoenas directed at nonprofit groups that had supposedly put out misleading or one‐sided studies on climate matters.
What law does Bailey think he has on his side? While Elon Musk himself may have standing to file a civil suit claiming that his business was defamed, a state has no standing (nor should it) to file its own piggyback libel actions on behalf of celebrities it may admire.
Instead, Bailey writes, “I have reason to believe that your firm’s alleged actions may have violated Missouri consumer protection laws, including laws that prohibit nonprofit entities from soliciting funds under false pretenses.” Under this theory, supposedly wrongful advocacy by a private nonprofit on issues of public concern becomes a matter for state criminal enforcement, if the nonprofit repeats the claims in its fundraising.
Bailey thus evinces concern for the well‐being of Media Matters donors, whom he paints as the victims on behalf of whom he is acting. This is every bit as convincing as former New York AG Eric Schneiderman’s insistence that in bringing a securities fraud case over Exxon’s climate statements he was deeply concerned for the welfare of Exxon’s shareholders.
In the most risible bit of the letter—better than satire, really—Bailey claims to be standing up for free speech by menacing his private target with legal punishment for its speech.
You really have to wonder, though, whether Bailey has thought even one step ahead in the “What if the other side tries this?” calculation. By information and belief, groups on his own conservative side of the culture war raise a large volume of revenue from direct‐response campaigns, which frequently repeat assertions that some future unsympathetic law enforcer could portray as misleading or flat wrong. Does Bailey really want to start down a road in which states crack down on fundraising by right as well as left advocacy groups this way?