On Tuesday, we learned several things about Elon Musk. In his newly signed merger agreement to buy Twitter for $44 billion, there’s something called a disparagement clause, placing some limits around what he can say. (Small limits, like “foot-tall fence around your home”-type small.)
The other thing is, Musk remains not very concerned about disparaging Twitter or Twitter staff on the company’s own platform.
Two instances of right-wing attack on Twitter staff were made Tuesday by Musk, who promoted the talk points of two prominent conservative influencers. During the first, the podcast host Saagar Enjeti labeled Vijaya Gadde, Twitter’s top lawyer and the person who’s been responsible for its moderation policies, as the company’s “top censorship advocate” and criticized Twitter’s decision to restrict a New York Post Story about Hunter Biden.
Answer to Enjeti Musk wrote, “Suspending the Twitter account of a major news organization for publishing a truthful story was obviously incredibly inappropriate.”
In the other instance, Mike Cernovich, a popular conservative figure online, accused Twitter attorney Jim Baker of fraud during Baker’s time at the FBI.
“@elonmusk, this is who is inside Twitter,” Cernovich wrote, referring to Baker.
“Sounds pretty bad . . . ” Musk replied.
Okay, Musk’s behavior yesterday was largely more of the same. Musk made extensive use of Twitter to fuel his campaign and rallie support for his takeover bid. Rather unsurprisingly, Musk sees no reason to stop airing criticism of Twitter in public now that he’s won, though in the past his complaints didn’t seem to extend beyond CEO Parag Agrawal and the other nine members of the board not named Jack Dorsey.
None of Musk’s bid to capture Twitter has been conventional, and there’s certainly nothing conventional about an incoming owner publicly voicing unhappiness with the highest-ranking attorney at his newly acquired company.
But—wait, you ask, “Didn’t Musk just sign a merger agreement that included a disparagement clause? Ah-ha! He can’t do this sort of thing. Let’s turn him over to the SEC police. Or whoever.”
Here’s the relevant portion from the newly made SEC filing:
Equity Investor [Musk]Twitter will be allowed to discuss the Merger and the transactions contemplated herein, provided that such tweets don’t disparage either the Company or its representatives.
This page 50 contains a few words about Musk’s tweeting. The mergerTwitter, the deal he signed. Under this agreement, he isn’t supposed to go on Twitter and say nasty things about Agrawal or Gadde in connection to the merger. And, yeah, it’s pretty clear that his replies yesterday to Enjeti and Cernovich weren’t about the merger.
With this one, sorry, folks: Musk’s safe from the SEC police, who obviously have a history with him.
Here’s a further explanation from Raffi Melkonian, an appellate lawyer at Wright, Close & Barger who first drew attentionMusk-Twitter’s disparagement clause by his highly followed Twitter account.
“It’s not clear to me he’s violated anything. What the provision says is, he can’t insult Twitter when he’s talking about the transaction. And it’s not 100% clear he’s talking about the transaction there in those tweets” between Musk, Cernovich and Enjeti, Melkonian says. “I mean, he might say, I was insulting Twitter more generally.”
You might then ask for a more thoughtful follow-up. “At least the disparagement provision will force Musk to toe the line around decorum a little more carefully, right?”
Uh. Here’s Melkonian again: “That provision is not tied to any kind of enforcement. It’s not like he owes any money if he insults Twitter about the transaction,” he says. “And, like, what is Twitter going to do—sue him about his tweets? They’re not going to do that. His attitude might be, Whatever—I signed this, but I’m not gonna follow any of it.”
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