People, including my editors, keep asking me who “won the day.” I have been thinking about other things, like whether the marble behind the Honorable Stephen Wilson is an actual slab, or just a veneer over particle board, and whether I will get kicked out of the courtroom if I go check it out before court is in session.
But mostly, I have been thinking about insults. The main point of contention has been whether “pedo guy” qualifies as an insult or a statement of fact. As Ken White, the lawyer and pundit, points out, insults — like hyperbole, shit-talking, and “other expressions not reasonably taken literally as assertions of fact” — are not defamation, which is why John Oliver can perform the song at the end of this Last Week Tonight segment with confidence. In White’s view, Elon Musk has a defensible case, though this is not the same thing as a winning case.
Insults are the kind of thing one might want to call a linguist to discuss, you know, as an expert witness. The core of the case — to me, at least — seems to rest there. For instance, say someone calls me an asshole. This is both an opinion and insulting; possibly it is also true. In any event, it’s not defamation.
“Pedo guy” is way less clear-cut as an insult than “asshole.” The relevant parts of Musk’s testimony today largely centered on his view that it was an insult. Unfortunately, I also heard a great deal of testimony that doesn’t seem remotely relevant to this question, from Musk and others.
By the end of the day, though, the plaintiff Vernon Unsworth gave compelling testimony about how Musk’s words had affected him. Unsworth indicated he’d taken Musk’s words as an accusation, not an insult, and felt “dirtied” by them.
“Rude and contemptuous”
Alex Spiro, Musk’s counsel, had more nervous energy than yesterday — he was practically vibrating. He began by asking Musk how he became involved in the Thailand cave rescue in the first place. Several emails were introduced into evidence, including with Rick Stanton, the head of the rescue operations, showing that Musk’s help was indeed welcomed. There was a great deal of detail I did not care about regarding the specs on the minisub. We were shown a video of the minisub in a pool. We were then treated to a series of Musk’s tweets where he said nice things about rescuers and noted that his team hasn’t done anything directly useful to the effort. Musk said that after he left for his Shanghai meeting, 20 to 25 engineers stayed behind.
Eventually, Musk testified that he was upset because Unsworth denigrated the efforts of Musk’s team of engineers and because Unsworth falsely said Musk was thrown out of the cave; he also did not appreciate the “rude and contemptuous” tone of the interview. (Musk is something of an expert in rude and contemptuous: there was that time on a quarterly conference call with analysts, Musk cut someone off with, “Next. Boring bonehead questions are not cool.”)
The tweets at the center of the defamation case were “obviously a very off-the-cuff response,” Musk testified. He also said the tweets were deleted “within hours of publishing,” partly as a result of media attention and because “a lot of people said you probably shouldn’t write that.” Musk also said that he did not know when he tweeted that Unsworth was central to the rescue. “I thought he was some random ex-pat guy.” Musk also said, accurately, that lots of people are mean to him online and he is frequently criticized.
We are then shown the tweets in question again. Musk explains that “obv” means “obviously,” that “no problemo” is “a phrase Bart Simpson uses — the Simpsons used to be cool,” and “really did ask for it” refers to what Musk views as an “unprovoked attack on my team and me, with a bunch of false statements.”
As for Musk’s follow-up statements: “Bet you a signed dollar,” Musk explained, is a low-stakes wager meaning “it’s not impossible.” He then said: “It’s possible that if someone goes to Colorado a lot, they’re going for weed.” Musk paused. “Not if they’re coming from California though.”
Musk’s Twitter usage was particularly high-volume last year. Musk sent an estimated 100 to 200 tweets per month, he testified. He also said that he views it as a mitigating factor that he didn’t name Unsworth in the tweets. According to Musk, the first time anyone asked him if “pedo guy” meant “pedophile” was at the deposition. This seems unlikely; at least one journalist surely asked Musk about this.
Spiro got out a large calendar for demonstrative purposes. “The jury is familiar, hopefully, with the month of July,” Spiro said. Spiro then began asking Musk questions about the private investigator he retained to look into Unsworth — an investigator who turned out to be a con man. Musk said that before he sent the “strange that he hasn’t sued me” tweet, the con man P.I. had passed false information to an employee (Jared Birchall, who we hear from later) who told Musk about it.
The email to Ryan Mac at Buzzfeed was brought up again; he must be getting sick of it. We are treated to a discussion of what “off the record” means — according to Musk, that means not for publication. (I see several journalists make faces; most of us understand “off the record” as a mutual agreement. A source cannot demand it unilaterally, which is ultimately why Mac published his story.) A second email is pulled up with “on background” at the top. Musk explains that he believes “on background” means the information can be used, but not attributed to him. (In my experience, every source has a different notion about what “on background” means, and this has to be negotiated every time, which is a goddamn nightmare.)
“If I write something on Twitter, it will get reported”
L. Lin Wood, Unsworth’s attorney, was up next for the re-cross; thankfully, he had dropped the bumbling manner from yesterday. Wood said Unsworth doesn’t have a Twitter account, and wondered how Unsworth was supposed to know Musk had apologized. “Most things I say on Twitter get press,” Musk said. “If I write something on Twitter, it will get reported.” Musk adds that it seemed appropriate to him that the apology was on the same medium as the insult.
Wood then pulled up just an absolute fuckload of Musk’s tweets, and asked Musk if they belong to him. “I don’t remember every tweet,” Musk said. This did not seem to be the point, as procedurally Wood was trying to get the tweets entered into evidence. Many of them are about the minisub — which is referred to variously as a minisub, a pod, or a tube, but which I will continue calling a minisub for consistency’s sake. Musk said he was soliciting feedback from the public. “I tweet a lot, in general,” Musk said, accurately.
It looked to me like Wood was trying to suggest the volume of minisub tweets smacked of a PR stunt, particularly after Musk testified that he knows his tweets will be reported on. Musk insisted he was soliciting feedback. “There are some pretty smart people out there,” Musk said. Tesla vehicle design, in particular, is something he cites as having incorporated a lot of Twitter feedback.
Wood switched tacks to language. He and Musk discussed pedophilia, which may refer to thought (a sexual attraction to children) or action (statutory rape). Musk said that if an adult were to marry a 12-year-old, that is probably pedophilia. “Pedo guy,” however, is more flippant, Musk said. “Mother-effer doesn’t literally mean incest,” Musk said, because he apparently did not want to say “fuck” in court.
As this discussion of the meaning of “pedo,” “pedo guy,” and “pedophile” was happening, Unsworth began to look progressively more unhappy. He puffed out his cheeks. His mouth worked. I couldn’t see Unsworth yesterday — he was obscured by a poster board — but today I didn’t see him look at Musk once. Unsworth appeared to be upset by the discussion, but his back was to the jury.
“All the press I read, including the British press, viewed this as an insult,” Musk testified. He also said he remembered the coverage as being negative about him. Wood began asking about specific countries’ press, which is how I discovered Musk doesn’t read news from Scandinavia, the Netherlands, or Belgium. Judge Wilson interjected to ask what languages Musk does know, since the judge thought that might be faster. Musk said he spoke a little Spanish, French, and German. Judge Wilson tells Wood that he will allow inquiries about news from South America, the Carribean, and German-speaking Switzerland.
The jurors are then sent away for recess while the lawyers argue about whether a Google alert can be introduced to the court. Whatever Wood wanted to introduce has a headline from Vox — a media outlet that unfortunately Judge Wilson is not familiar with, and which he spells aloud — that uses “pedophile.” Ultimately the exhibit was excluded from the proceedings.
When everyone returned from their brief break, Wood asked Musk if anyone at Tesla had pointed out that his tweet had tanked the stock. Musk said that he got concerned notes from shareholders, but since Tesla is publicly traded, anyone can see its price at any time. Wood asked Musk to give a current estimate of Musk’s net worth. Musk hedged: he has stock and debt against that stock; the stock value fluctuates. Wood asked for a range. Musk said he didn’t know. Wood then reads from Musk’s deposition, where the estimate is about $20 billion. Musk said that with SpaceX and Tesla stock combined, yes, that sounds right. There is no mention of how much debt Musk has outstanding against the stock.
Musk was then dismissed. As he exited the courtroom, he turned back to the jury, waved, and then left.
He’s a Brick… house
The next witness was Jared Birchall, also known as James Brickhouse. Birchall, in contrast to every other witness today, did not wear a jacket; instead he was wearing a white shirt with blue checks. Birchall said he was 17 or 18 years into a career in finance and was hired by Musk to run Musk’s family office.
Wood asked Birchall a series of questions that established, mainly, that Musk is Birchall’s boss. It didn’t sound like Musk micromanages Birchall, however. Wood displayed a non-disclosure agreement that Birchall entered into with James Howard, a con man who purported to be a private investigator. Howard had attempted to contact Musk, saying that he had dirt on Unsworth.
It emerged that Birchall had dealt with Howard largely under a pseudonym, James Brickhouse. I was somewhat disappointed that Birchall didn’t think up something more fun, like Pierce Inverarity. Birchall said he came up with the name himself and that Musk hadn’t known about it. He’d used the Brickhouse pseudonym before, to book travel and buy domain names.
Birchall couldn’t sign the NDA under the pseudonym, though, as that would render the contract unenforceable, so he swapped out his email display name to “Jared Birchall for James Brickhouse.” Every other communication, however, took place under the pseudonym, except one, when Birchall accidentally sent an email under his own name.
According to Birchall, Howard had cited Paul Allen and George Soros as previous employers. Birchall did not, however, try to contact anyone to determine if this was true. So here’s a valuable hiring lesson for everyone: call the references.
Wood displayed another email from Birchall to Howard. “We would like you to immediately move forward with ‘leaking’ this information to the UK press,” the email reads. Bullet points follow, containing false information about Unsworth that I am not especially interested in repeating. Birchall said the email was meant to “encourage investigative journalism.” In the email, Birchall pointed to a line where he wrote “share the facts,” and said he understood the bullet points to be facts and he wanted to make sure the press was given correct information.
Then it was time for lunch.
When we returned, Michael Lifrak, another of Musk’s lawyers, began asking Birchall questions. Birchall was aware of Musk’s Unsworth tweets but said he did not discuss them with Musk. Lifrak asks if Musk would harm Unsworth in any way. “He would never do that,” Birchall said.
When Birchall received the referral for Howard, the con man PI, Musk had clearly expressed that he expected litigation. Lifrak displayed a Birchall email to Howard: “We believe there are planned attacks in the media and/or a lawsuit that are imminent. With that said, we aren’t looking to frame anyone.” Lifrak asked if anything was published with the false information Howard supplied. Birchall said no.
We then move back to the Brickhouse pseudonym, which I find easier to remember than Birchall’s actual name. Birchall said that working with a public figure means trying to maintain that person’s privacy and described that as the core of what he does.
At this point an email is displayed wherein “James Brickhouse” is trying to buy the domain name justballs.com. If you are frightened to click the URL, please know I have done that for you and its contents are (1) “This page is under construction — coming soon!” and (2) related searches, virtually all of which have to do with baseball. There was no testimony about why Birchall would be buying justballs.com on Musk’s behalf or what Musk was planning to do with it.
The reason Birchall used his pseudonym in this transaction, he explained, was because if people knew Musk were involved, they’d likely raise the price. In any event, Birchall did not succeed in purchasing justballs.com.
Birchall then said that when he relayed Howard’s information from Musk, “as human nature would have it, the most alarming things were what I had shared.” Referring to Musk’s email to Buzzfeed, Birchall said the language was harsher than he would have used but the content was what he understood Howard’s investigation to have unearthed. At the time, Birchall did not know Musk had emailed Buzzfeed. I imagine he rather quickly found out. Lifrak rested.
“Leaking to press is a PR stunt, isn’t it?” Wood asked on recross. Birchall repeated that he wanted to encourage investigative journalism. Musk had gotten a significant amount of negative publicity from the “pedo guy” tweet. Leaking, then, would be a way to “balance” the coverage. Wood said that meant Howard’s hiring wasn’t a litigation defense strategy; it was a PR strategy.
This led to a grouchy exchange about what phrases Birchall used with Musk when he gave Musk the phony information, leading to a series of sustained objections to Wood. Wood appeared to be growing frustrated.
A great deal of irritating cross-talk
The next witness, Rick Stanton, was the one who bewildered me the most today. He was the leader of the cave divers who rescued the Thai soccer team and their coach, and he sat very upright in the witness stand, like a clean-shaven Jason Statham. Stanton, a retired firefighter, has been involved in rescues around the world and has done cave diving for most of his adult life, he said.
Unsworth cracked a smile when Stanton referred to “spelunking, as you say.” Apparently this is more commonly called “caving” in the UK. Stanton testified that Unsworth got him involved in the rescue, and that within 6 hours of Unsworth passing Stanton’s name to the authorities, Stanton was on a plane to Thailand.
Matt Wood, son of L. Lin Wood, conducted the direct examination, and to minimize confusion, I will be calling him by his first name and will continue referring to his father by their (shared) last name. Anyway, Matt began asking questions about the rescue and conditions in the cave. Judge Wilson broke in: “Clearly the witness did something heroic, but that’s not what this case is about.” The judge instructed Matt to get back to what’s more relevant.
Stanton obviously thinks highly of Unsworth; his testimony about Unsworth was glowing. During the two weeks Stanton was in Thailand, he was in “constant contact” with Unsworth, he testified. Stanton confirmed he was also in contact with Musk, and that he had instructed Musk on the minisub. At the time Musk and Stanton corresponded, the method the divers used to rescue the soccer team was a totally untested technique, Stanton said. Musk was a possible plan B.
Matt began asking Stanton questions about the minisub. Spiro, Musk’s counsel, objected. Judge Wilson sustained the objection; the question of whether the minisub worked was not relevant to the defamation claim, the judge ruled.
Spiro rose to conduct his cross-examination. He asked how many people were involved in the exploration and rescue; Stanton responded that six to eight people laid the guide line under water in the caves. Stanton again credited Unsworth with giving the team advice and creating a map. There was then a tedious discussion about maps I am going to elide because I don’t see what it has to do with defamation.
Then, Spiro asked if there was a rule against speaking to the press. No, Stanton said. “A rule is enforceable.” There were guidelines against speaking to the media. Unsworth didn’t ask if he could speak to the media, but it also wasn’t Stanton’s decision. Stanton became aware “after the event” that Unsworth had spoken to CNN.
Spiro hauled out his giant calendar again, and began asking Stanton questions about a conspiracy theory that the divers had purposely not rescued the boys. This got Stanton’s hackles up. Spiro attempted to clarify that he personally didn’t believe it was true. There was then a great deal of irritating cross talk between Spiro, Judge Wilson and Wood; I was unable to write quickly enough to keep up with it. Several jurors glanced longingly at the clock.
Spiro displayed a WhatsApp chat between Stanton and Unsworth dated August 6th, 2018. Unsworth asked Stanton if Stanton had saved his emails with Elon Musk. Stanton said yes. Unsworth asked Stanton to find them and forward them. Stanton testified that he gave Unsworth the emails without knowing why Unsworth wanted them. There were no further questions for Stanton and we all took a break.
I kept wondering why Stanton was there — to establish what we all knew already, that Unsworth was a hero? To establish the minisub wouldn’t work? I couldn’t see the relevance of either of those things to the defamation claim. His testimony about the emails wasn’t necessary — as Unsworth, who took the stand next — would also speak to them.
“I still feel dirtied”
When we came back, Vernon Unsworth took the stand, wearing a blue suit with a pale pink shirt and more saturated pink tie; like Stanton, his hair was cropped close. Stanton had stayed for Unsworth’s testimony and was seated in front of me.
Unsworth said he had been a financial consultant since 1987 and splits time between London and Thailand, about three months in each place. He had first visited Thailand in 2011, with his companion, and first explored the cave system in 2012. Unsworth estimated he’d spent hundreds of hours on solo trips through the cave.
Unsworth said that he’d actually planned to enter the cave the same day the soccer team did, but realized he needed to renew his visa. He first became aware of the missing children and their coach when his companion awoke to an awful lot of missed calls, including from her father. Unsworth was asked to help locate the people because he knew the cave system so well. When he arrived at the cave, he discovered water in a crucial section. He tried to stop the water getting in, using sandbags and digging equipment, but couldn’t do it — and had become concerned that more water would cut off him and the other rescuers.
At this point, Taylor Wilson, the lawyer who was conducting Unsworth’s examination, was scolded by Judge Wilson about his questioning style. Unsworth was providing narration, Judge Wilson said. Wilson-plaintiff’s-lawyer was encouraged by Judge Wilson — presumably no relation — to ask questions differently.
Then we came to the CNN interview. Unsworth explained that based on the video he’d seen of Musk’s minisub, he determined it was unworkable. As for his untrue statement that Musk had been asked to leave, Unsworth was essentially repeating gossip. “It’s what I heard generally around the cave rescue area on the day of the 10th,” he said. There’d been an order that the only people to go into the cave on the rescue days were the rescuers.
Unsworth testified that he doesn’t use Twitter, which makes him wiser than me. His companion showed him Musk’s tweets — he doesn’t recall when, or in what medium, specifically. His lawyer Wilson asked him what he took the tweets to mean. “I took it to mean I was being branded a pedophile,” Unsworth said. “It’s disgusting.”
Wilson, the lawyer, asked about the emotional impact. There was a long pause. Unsworth was visibly upset. “Feels very raw. Feel humiliated, ashamed, dirtied.” Unsworth’s voice broke. “I was given a life sentence without parole. At times I feel very vulnerable. It hurts to talk about it.” Unsworth said he felt very isolated and had tried to deal with the shame he felt on his own.
“I was obviously aware of the media coverage,” Unsworth said. He wasn’t sure how many times it was repeated. The media coverage was “very hurtful. I find it disgusting. I find it hard to read the words, never mind talk about it.” Unsworth said he’d lost self-confidence, though he had good and bad days. Wilson, the lawyer, asked if Unsworth still felt humiliated, and Unsworth said yes. “I still feel dirtied.”
The jury appeared rapt.
Unsworth has received awards for his participation in the rescue, but they haven’t changed his feelings about Musk. Unsworth said he nearly didn’t attend the ceremony to be accepted as a Member of the Order of the British Empire; he went only for his mother, niece, and companion. When he looked at the press coverage, though, he saw a comment about the “pedo guy” tweet, which sank his spirits. Wilson asked him how he felt about the MBE. “I enjoyed it as much as I could,” he said.
Since his role in the rescue, Unsworth has been a consultant for three books and two documentaries, both for National Geographic. He has made about $3,000 for his work. He’s also given pro bono presentations in Thailand about the experience.
Bill Pryce, one of Musk’s lawyers who had the general air of a middle school principal, rose for the cross. He displayed the WhatsApp chat between Unsworth and Stanton, noting that the date was August 8, the same date that L. Lin Wood had sent Musk a letter explaining he was preparing a civil complaint. Unsworth said the date was a coincidence; he just wanted to inform himself about the correspondence.
Pryce then pulled up text messages Unsworth had sent to a friend. Unsworth had, in the texts, described the Navy Seals as having “given up” as of July 5, before the rescue took place. Unsworth explained he didn’t mean that literally. Pryce pounced, and began asking Unsworth about other colloquialisms Unsworth had used, such as “lost the plot” and “tetchy.” I was not super clear on the point here.
The emails between Stanton and Musk that Stanton had forwarded to Unsworth were then forwarded to Unsworth’s lawyers. Pryce displayed another email of Unsworth’s, in which details Stanton sent to Unsworth about the cave system were forwarded by Unsworth to Jonathan Head of the BBC. “For your eyes only and not to be reported on!!!” Unsworth wrote in the email. “Hopefully you will understand why Elon Musk’s submarine would not have worked.” Another text from Unsworth was displayed, where he’d sent a request for the measurements of the minisub.
The cross was difficult to watch. It seemed clear Pryce was trying to establish that Unsworth was pursuing his argument with Musk; part of the defense’s argument between men strategy. But given how Unsworth behaved when Musk was testifying — while he was facing away from the jury, who couldn’t see him and thus won’t consider his expressions — I am convinced that Unsworth does feel humiliated, dirtied, and ashamed.
What remains in question is whether “pedo guy” should be counted as an insult or a statement of fact. Though Musk gave testimony that he felt it was an insult, Unsworth gave testimony he felt it was an accusation. I don’t know who the jury will find more believable.
One thing, however, seems true, though it is not testimony and I don’t know if the jury will consider it: this entire process has been more grueling for Unsworth than Musk. Unsworth has been in the court for the entire trial, listening to testimony he clearly finds hard to bear; Musk showed up for his testimony and vanished.
The trial will resume tomorrow at 9AM PT.