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Elon Musk loses another round with Tesla critic

Elon Musk said a critic's defamation lawsuit was an attempt to censor and intimidate him. An appellate panel disagreed.

(CN) — A California appeals court ruled Tesla founder Elon Musk’s public statements that a critic of his company “harassed” and “almost killed” Tesla employees are not protected by state free speech laws.

The court ruled in favor of Randeep Hothi, the man behind the Twitter account @skabooshka where he expressed skepticism about Tesla's autonomous driving claims.

Hothi fact-checked Tesla’s production rate claims regarding its Model 3 vehicles, which were advertised as hyperautomated and could largely function without human input — a process Musk called “alien dreadnought.” Hothi was doubtful that Tesla could meet the production goals publicly touted by Musk.

On April 16, 2019, Hothi spotted a Tesla-owned vehicle with roof-mounted cameras on the road. The vehicle appeared to be recording audio, video and data, so he followed it, photographed it and posted the photos on Twitter.

A few days later, Tesla filed a civil restraining order against Hothi claiming he trespassed, stalked, harassed and endangered Tesla employees, hit a Tesla security guard with his vehicle and swerved his car toward the Tesla-owned Model 3 vehicle he encountered on the road.

Tesla dropped the harassment case against Hothi after an Alameda Superior Court judge ordered it to produce video evidence documenting Hothi’s reckless driving.

In a subsequent email exchange on the treatment of Hothi and other Tesla critics with Aaron Greenspan, the owner of the litigation publishing website PlainSite.org, Musk wrote, “As for the people you mention below, they have actively harassed and, in the case of Hothi, almost killed Tesla employees. What was a sideswipe when Hothi hit one of our people could easily have been a death with six inches of difference.”

Hothi sued Musk for defamation after Greenspan published the email on his Twitter account.

Musk in turn filed a motion to strike the allegation under California’s anti-SLAPP law, claiming Hothi’s lawsuit was intended to censor and intimidate him for engaging in protected speech on a matter of public concern.

A trial court judge didn’t buy it, and neither did three appellate judges, who on Monday affirmed the lower court judge's ruling and denied Musk’s motion.

“Musk failed to demonstrate his statements constitute protected activity,” First Appellate District Justice Sandra Margulies wrote in a brief opinion joined by Justices David Humes and Gabriel Sanchez.

The panel further concluded Musk’s email was unrelated to matters of public interest.

Musk contended the exchange “furthered” the public debate regarding Tesla’s operations by emphasizing Hothi’s “unreliable and improper methods for obtaining his supposed information,” and that his statements about Hothi’s misconduct were related to his treatment of critics and their attempts to bring down his company.

The panel disagreed, finding no relationship between his statements and an issue of public interest. “For example, Musk’s comment that Hothi harassed employees and hit and almost killed employees does not relate to the reliability of Hothi’s information. Nor does the statement refute Hothi’s comments about Tesla or assert Tesla’s past treatment of Hothi was appropriate,” Marguiles wrote.

Hothi’s attorney Gill Sperlein told Courthouse News that Musk’s attempt to get the case tossed on anti-SLAPP grounds was likely a stall tactic.

“The lower court's ruling was sound, and we were confident that the court would affirm,” he said in an email. “The appeal was likely a delaying tactic on the part of Musk and his legal team. Now, we move forward with litigation and look forward to proving our case in court.”

Tesla did not immediately respond to a request for comment.

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