Elon Musk and Freedom of Expression: Track record not encouraging

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

Aly Song | Reuters

Tesla and SpaceX CEO Elon Musk, the world’s richest man on paper, buys Twitter, the social media platform he has relied on for years to advance his interests and shape his public image.

“Freedom of speech is the foundation of a functioning democracy, and Twitter is the digital urban space where issues crucial to the future of humanity are discussed,” Mr Musk said in a statement when the agreement was announced on Monday.

Musk has characterized himself as an advocate of first change and freedom of speech for years, for example, by defending himself in a defamation case after calling a critic a “pedo-guy” (Musk won), and for arguing, that the SEC violated his rights in a settlement agreement they entered into and revised after the agency accused him of securities fraud in 2018.

But as The Atlantic, Bloomberg, and others have pointed out, Musk’s advocacy for free speech seems to apply most to his own speech or that of his fans and promoters. TechDirt claims that Musk lacks a serious understanding of free speech and even less of content moderation.

Worker speech

When it comes to his employees’ freedom of speech, Musk shows little tolerance.

Under his leadership, once Tesla has laid off employees, they are asked to sign separation agreements, including a strong non-derogatory clause with no end date. That kind of deal is not uncommon in the industry, but Musk is far from an absolute freedom of speech 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) said:

“You agree not to degrade Tesla, its products or corporate officials, directors, employees, shareholders and agents, affiliates and subsidiaries in any way that could be detrimental to them or their business, business reputation or personal reputation.”

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

“The terms of this Agreement will be kept strictly confidential by you and will not be published or disclosed in any way,” the agreement states. “In particular, and without limitation, you agree not to disclose the terms of this Agreement to any current or former Company employee or contractor.”

Like most large companies, Tesla also requires workers to sign an arbitration agreement upon employment. This means that in order to speak freely in court, where their speech becomes part of a public registration, workers must first obtain a dispensation from the arbitration agreement from a judge.

Under Musk’s leadership, Tesla has accused dozens of workers of racist, sexist and other forms of harassment, discrimination and insecure working conditions. Many have also claimed retaliation after talking about problems.

These allegations have been in the spotlight recently due to a recently revealed investigation by the EEOC and a lawsuit from the California Civil Liberties Agency, but the company has a long track record.

In August 2018, a former Tesla security guard, Karl Hansen, filed a complaint with the U.S. Securities and Exchange Commission, saying he was wrongfully fired from his job as an investigator at the company’s battery factory in Sparks, Nevada, after sounding the alarm about the theft of raw materials for tens of thousands of dollars there. Tesla hid the theft from shareholders, he claimed, even though it represented a significant amount 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 security issues internally and then filing formal complaints to government offices as the company failed to correct and communicate accurately with customers over what he said were unacceptable fire risks in the company’s photovoltaic systems. Both the CPSC and the SEC consider Henkes’ complaints to be evidence.

Free press

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

Memorably, Tesla’s CEO scolded and interrupted an analyst on an earnings call in 2018. “Excuse me, next, next. Boring, bone-chilling questions are not cool,” the CEO said after a question about his company’s capital requirements. The automaker had just posted its worst quarterly loss in its history. Musk later apologized for this and now occasionally skips talking about Tesla earnings calls.

Musk and Tesla have also asked journalists to sign NDAs or show draft histories of the company to obtain approvals before they are published.

He has brazenly urged followers to edit his biography on Wikipedia. “Just look at my wiki for the first time in years. It’s insane!” Musk tweeted. “Btw, can someone please delete ‘investor’. I’m pretty much not investing,” he said. His legions of followers undertook to edit the page in order to downplay his investment.

Musk even makes fun of fan blogs when they write about Tesla’s shortcomings.

At his behest, Tesla stopped inviting some Electrek employees to corporate events, after the site – which has evolved into more of an electric car blog in recent years – published a story with this headline, Tesla charging owners $ 1,500 for hardware they have already paid for. The story was accurate, albeit humiliating for Musk, because it addresses his company’s failure in the race to deliver autonomous vehicle technologies to long-awaited customers.

Customer speech

Musk and Tesla have also sought – not always successfully – to silence customers. For example, Tesla used to force customers to sign confidentiality agreements as a precondition for having their vehicles repaired.

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

In an agreement that Tesla sent to drivers earlier this year on FSD Beta access, 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 by taking screenshots , create blog posts or posts on social media.

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 reached by CNBC.

Musk later lifted Tesla’s terms of access to the FSD Beta and said no one obeyed the deal anyway. However, this practice caused an investigation by the Federal Vehicle Safety Authority, NHTSA.

“Given that NHTSA relies on reports from consumers as an important source of information when assessing potential security breaches, any agreement that may prevent or deter participants in the early release beta release program from reporting security issues to NHTSA is unacceptable,” he wrote. NHSA in a letter to Tesla in October 2021.

Meanwhile, Tesla in China has sued customers who have complained about safety issues with their cars, and sued an influencer on social media there for slander. The influencer, Xiaogang Xuezhang, posted a video demonstrating problems with Tesla’s and another automaker’s automatic emergency braking systems.

Editorial staff

Lawyers from Tesla and Musk have also consistently filed confidentiality requests for legal and business applications in the United States.

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

Attorneys on behalf of Tesla and Musk have also tried to keep transcripts and videos of employee and management witnesses hidden in cases before the Delaware Chancery Court and other courts.

Freedom of speech for me

Musk has certainly exercised freedom of speech for himself and his companies.

Recently, he said that the SpaceX satellite internet service Starlink would keep Russian news sources online, despite what Musk said were calls to block these from unnamed governments amid Putin’s brutal invasion of Ukraine.

“Starlink has been asked by some governments (not Ukraine) to block Russian news sources. We will not do so unless it is under gunfire,” Musk wrote. “Sorry to be absolute free speech.”

In the labor market, Musk is also fighting an administrative court ruling, which said he should remove a tweet from his feed because it violates workers’ rights. The tweet, released in 2018, said: “Nothing is stopping the Tesla team at our car factory from voting union. Could do it tmrw if they wanted to. But why pay union dues and give up stock options for nothing?”

At Tesla, Musk has evaded the requirement to have an securities law expert pre-approve some of his tweets before sending them, despite the settlement agreement he entered into with the SEC after it accused him of fraud in civil securities.

Musk told Lesley Stahl in a 2018 interview that his tweets are generally not monitored, even though a court had ordered him to have some of them pre-approved by experts in compliance with securities laws at Tesla if they contained information that would likely affect Tesla’s stock price. . During that interview, he said, “Hi first change. Freedom of speech is fundamental …”

If we assume that he really believes in it, then Musk’s absolute freedom of speech is only hopeful.

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

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