Elon Musk’s social media platform filed a curious federal lawsuit yesterday, targeting a group of advertisers for allegedly organizing a boycott of the company formerly known as Twitter. NBC News reported:
The company formerly known as Twitter filed the lawsuit Tuesday in a federal court in Texas against the World Federation of Advertisers and member companies Unilever, Mars, CVS Health and Orsted. It accused the advertising group’s initiative, called the Global Alliance for Responsible Media, of helping to coordinate a pause in advertising after Musk bought Twitter for $44 billion in late 2022 and overhauled its staff and policies.
As my MSNBC colleague Ja’han Jones noted, the conspiratorial billionaire also declared “war” against a coalition of advertisers known as the Global Alliance for Responsible Media (GARM).
There are legal experts who can speak to this with more authority than I can, but from a layperson’s perspective, the litigation seems rather odd. People are free to ask advertisers not to support a media company. Advertisers are similarly free to buy space, or not, on the platforms of their choosing. For a social media company to sue private entities for choosing not to give it money seems like a tough sell.
But as the case advances, there was one detail in the reporting that deserves a closer look. Reuters noted, “The case was filed in the Northern District of Texas and assigned to U.S. District Judge Reed O’Connor.”
And who is Judge Reed O’Connor? I’m glad you asked.
The week before Christmas in 2018, for example, it was O’Connor who agreed to strike down the entirety of the Affordable Care Act, root and branch. Even many conservatives and ACA critics agreed that the ruling was indefensible, and reactions tended to include words and phrases such as “pretty bananas,” “embarrassingly bad” and “absurd.”
The New York Times noted soon after that Republicans had a habit of bringing their cases to this specific district court because of their confidence that O’Connor would give them everything they wanted: “He ruled for Texas in 2015 when it challenged an Obama administration measure extending family leave benefits to married same-sex couples. … He also ruled for Texas in 2016, blocking the Obama administration from enforcing guidelines expanding restroom access for transgender students.”
In 2022, the same judge, nominated by George W. Bush, also undermined the Navy’s vaccine requirements, ignoring generations’ worth of precedent. A year later, O’Connor took steps to undermine the Affordable Care Act again.
Last month, O’Connor made headlines again, this time by blocking President Joe Biden’s administration from enforcing new anti-discrimination protections for LGBTQ+ students.
It’s against this backdrop that the lawyers for Musk’s platform filed their new case in a specific Texas district where they knew the case would almost certainly be assigned to O’Connor.
The tactic goes by different names. I’ve seen it referred to as “forum shopping,” “judge shopping,” “venue shopping,” and “court shopping,” but the phrases all mean the same thing: Instead of simply taking one’s chances in the judiciary, many litigants effectively try to hand-pick ideologically aligned jurists, filing their cases in specific districts in the hopes of guaranteeing success before the process even begins in earnest.
I don’t know for certain whether X’s legal team tried to game the system, but it seems like quite a coincidence that they took their case to a judge who’s notorious for telling the right what it wants to hear.
This post updates our related earlier coverage.
