In this column, Due Diligence, erstwhile attorney and GQ staff writer Jay Willis untangles the messy intersection of law, politics, and culture.
In July of 2018, as the world celebrated the daring rescue of a Thai youth soccer team from a flooded underground cave, Tesla founder and amateur subway enthusiast Elon Musk busied himself throwing the pettiest of public tantrums instead. Musk, you see, had sent a custom-built miniature rescue submarine to Thailand upon learning of the boys' plight, only to watch it go unused in the actual rescue effort—and to hear one of the volunteers, Vern Unsworth, opine to reporters that Musk's contribution was useless. "He can stick his submarine where it hurts," Unsworth scoffed, mocking the vessel's alleged inability to navigate the cave's tight confines. "Just a PR stunt."
The billionaire's knee-jerk response to experiencing a fleeting moment of mild embarrassment was, naturally, to insinuate that Unsworth committed sex crimes against children. "Never saw this British expat guy who lives in Thailand (sus) at any point when we were in the caves," Musk wrote in a series of tweets, promising to use video simulations to prove the submarine's hypothetical value. "Sorry pedo guy, you really did ask for it."
A few hours later, Musk deleted the tweets; a few days later, he issued an apology, acknowledging that Unsworth's "actions against me do not justify my actions against him." Musk did not, however, retract or otherwise address his "pedo guy" comments, and so Unsworth sued Musk for defamation last fall. The two sides are scheduled to go to trial this December, but in a filing on Monday, Musk asked the court to enter judgment in his favor without a trial by asserting a rather ambitious legal theory: that by calling Unsworth a "pedo guy," he was not, in fact, asserting that Unsworth was a pedophile.
Complicating Musk's claim here is the fact that in August 2018, when BuzzFeed News reporter Ryan Mac asked for comment about his potential legal liability, Musk suggested that Mac "call people you know in Thailand," "find out what's actually going on, and "stop defending child rapists, you fucking asshole." In this email, Musk went on to characterize Unsworth as "an old, single white guy from England" who had spent between 30 and 40 years in Thailand, "mostly Pattaya Beach, until moving to Chiang Rai for a child bride who was about 12 years old at the time." He concluded with what would prove to be a prophetic aspiration: "I fucking hope he sues me."
A good chunk of Musk's summary judgment motion reveals where this newfound reserve of vitriol came from: At some point after his apology, Musk quietly agreed to pay a private investigator more than $50,000 to look for dirt on Unsworth. This effort at conducting due diligence was not particularly successful. In an interview on Monday, Unsworth's attorney told Law.com's Ross Todd that although Musk dangled a $10,000 incentive for evidence of Unsworth's misconduct, the investigator still came up empty. A contemporaneous BuzzFeed News investigation found no evidence to corroborate Musk's allegations, and under oath, Unsworth has denied even traveling to Pattaya during his time in Thailand.
Nevertheless, Musk says, he believed that the investigator's preliminary findings, conveyed to him through an associate, suggested that his unverified hunch might be accurate, and he thus felt justified in reiterating it to BuzzFeed News. Under defamation law, Musk's subjective state of mind matters because he argues that Unsworth's brief celebrity status makes him a "limited-purpose public figure." This designation, if the court were to agree that it applies here, would require Unsworth to prove that Musk made his false statements with "actual malice"—knowing that the statements were false, or recklessly disregarding the possibility that they were false—in order to win a lawsuit. And because Musk based his profanity-laced tirade on his investigator's as-yet-unverified findings, he concludes, Musk said what he said in good faith.
All those tweets Musk sent before paying five figures for a dubious investigation into Unsworth's private life, though, remain a tricky thing to explain away. Fortunately, Musk has an innocent, non-defamatory explanation for each of them. In his mind, he says, calling someone a "pedo guy" simply insults their appearance, since in the lexicon of his youth, "[a]ny old creepy guy would be referred to [as] pedo guy." His statements, then, were more akin to "bare insults" and "schoolyard taunts" than to bona fide allegations of child sexual abuse. This raises the obvious question of why Musk would later give someone a lot of money to search for evidence of Unsworth's literal pedophilia if he didn't mean to suggest that Unsworth was literally a pedophile in the first place.
From there, Musk's attorneys argue that the definition of pedophilia includes "thoughts without action." Since it is impossible for anyone to prove or disprove the existence of Unsworth's thoughts, they contend, Musk's "pedo guy" statement could not be interpreted by reasonable people as an assertion of objective fact. This line of argument, of course, ignores the fact that when reasonable people hear of a real-world allegation of pedophilia, they do not typically understand the term to refer merely to harmless thought crimes.
Lastly, when Musk offered to bet a Twitter user who objected to his "pedo guy" language "a signed dollar its [sic] true," Musk's lawyers say he intended this wager not to affirm his belief in the truth of his prior tweets, but instead as a "flippant comment" to signify that he was "obviously...not certain" about his prior tweets' accuracy. (The accuracy of the same tweets, remember, that he says were never serious accusations to begin with.)
This entire motion is a very expensive exercise in amateur semantics that stands in for a simple proposition: Elon Musk got his feelings hurt, and then said some dumb things, and is now willing to torture as many words as necessary in order to avoid paying for it.
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Originally Appeared on GQ