SCOTT DETROW, HOST:
Elon Musk's social media service X recently changed the terms of service. Normally, this would not be news, but this change by Musk is quite controversial, and NPR tech correspondent Bobby Allyn is here to explain why. Hey, Bobby.
BOBBY ALLYN, BYLINE: Hey. What's up, Scott?
DETROW: So terms of service, this fine print we scroll through to the bottom until we sign - usually pretty boring. Why are these ones...
ALLYN: Yeah.
DETROW: ...A big deal?
ALLYN: It is. And it's because it could mean when someone wants to sue Elon Musk's X, the case may be heard by a judge who has been friendly to him. In Fort Worth, Texas, there's this federal judge. His name is Reed O'Connor. He's an active member of the conservative legal group the Federalist Society. And in recent years, Elon Musk has been filing lawsuits in his district against his critics. In one of the suits, against the liberal watchdog group Media Matters, O'Connor has been issuing pro-Musk ruling after pro-Musk ruling. And starting in November, the new terms of service are now going to say if X users want to sue the company, they have to do it not where X is based but in northern Texas. That's where O'Connor is.
DETROW: Interesting. Does this judge have any apparent ties to Musk or any of his companies?
ALLYN: Yeah. You know, Scott, I looked into that. I pulled O'Connor's mandatory financial disclosure reports, and his most recent report covering 2023 does show he invested up to $50,000 in Tesla - of course, Musk's electric vehicle company. At the same time, he was overseeing two major lawsuits filed by Musk, and since my reporting, O'Connor has stepped aside from one of the cases. But he remains on another one, the suit against Media Matters.
DETROW: I guess I'm just wondering, though. X is now based in the Austin, Texas, area. Is it legal for the company to have all of its cases tried in another district?
ALLYN: The short answer is yes, it is legal, but it's also very controversial. The practice has become known as judge shopping. I called up Steve Vladeck about this. He's a legal ethics expert and a professor at Georgetown's law school, and he says the law gives a lot of wiggle room over where lawsuits can be filed. But, you know, the norm is to file where's most convenient - right? - so in the plaintiff's backyard or the defendant's backyard. Vladeck says Musk is doing something different here.
STEPHEN VLADECK: Are we going to allow companies to basically override that principle of convenience in the name of, you know, trying to stack the deck in their favor whenever they have the power to get you to agree to terms of service?
DETROW: This does seem to raise basic questions of fairness. Has O'Connor ever addressed this?
ALLYN: Yeah, he has. And it is a big debate in the legal field, right? Some want to rein in judge shopping by making it more difficult for a plaintiff to basically hand-select a judge. O'Connor himself has criticized calls for reform at a Federalist Society meeting some months ago, and O'Connor said the pushback seems to be driven by, quote, "political pressure." Now, Georgetown's Vladeck says even if judges rule fairly, judge shopping does create a bit of an optics issue for the federal court system.
VLADECK: It may well be that the judge has told themselves, has convinced themselves that they're doing everything by the book. It may even be the case that they are. But for public confidence, that's not the question. The question is not, is everything on the up and up? The question is, does it look like everything's on the up and up?
DETROW: Well, back to Musk. Has he or X addressed this at all?
ALLYN: Well, I reached out to both for comment, and I haven't heard back. I also reached out to Judge O'Connor's chambers, and they never responded to me. But we'll be keeping an eye on how X lawsuits end up unfolding in his court.
DETROW: That is NPR's Bobby Allyn. Bobby, thank you so much.
ALLYN: Thank you, Scott. Transcript provided by NPR, Copyright NPR.
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