| Thank you for taking the time to explain! I think I wasn't being very clear there. Sorry about that :( There's a reason I said it's the type of speech that is protected by the First Amendment and not that the speech is protected by the First Amendment. The intent was to convey that what Elon is complaining about is something that can be protected (broadly speaking, reporting is one of the quintessential examples of First Amendment protected speech, after all), and therefore a First Amendment analysis must be done. Maybe I'll be surprised and the article will be deemed defamatory as a matter of law (i.e., it's reporting that is not protected by the First Amendment), but that analysis still has to take place before anything else. > You and I do not have access to any of the evidence that will be presented in support of his allegations. > To get there we need evidence that will only be available during the trial. We do have some access to evidence courtesy of the complaint, since it must include at least something due to federal pleading standards. I think those same pleading standards are part of why it's easy to not take a "wait-and-see" approach. Elon has to include enough evidence to show that he has a fair chance of winning as a matter of law. If the judge looks at the complaint and finds that the evidence there is insufficient to sustain the case, then whatever other evidence Elon may or may not be sitting on is effectively wasted. Elon could submit an amended complaint at that point, but he only gets one guaranteed try at that, so in theory he should save the time and cost and just get it right the first time. In addition, even if the case survives a motion to dismiss he'd need to give that evidence to Media Matters as a part of discovery, they can use that same evidence in a motion for summary judgement (if appropriate, of course, since we don't know yet whether Media Matters actually disputes the factual accusations Elon made). In other words, if Elon has truly damning evidence he's incentivized to show it as part of the initial submission, rather than squirrel it away in hopes of reaching the jury when that's far from a guarantee. |