With less than three weeks to go to election day, Elon Musk’s barrage of posts on his X platform in support of Donald Trump has created an unprecedented situation: The owner of a major media platform using it to drive a partisan political agenda.
If you’re on X, you can’t help but notice it. By midday Thursday, Musk had posted 55 times on matters related to politics, invariably pro-Trump and anti-Kamala Harris. With 201.8 million followers on X — he’s the most-followed user on the platform — Musk is doing all he can to get Trump re-elected president.
“It is the stated goal of the Democrats to legalize all illegals, which would make all swing states permanently blue and turn America into a single-party state, just like California,” read one typically incendiary and unfounded accusation Musk posted.
Even if you don’t follow Musk on X, you’re likely to get hit by his political takes as they are filtered into the platform’s general “For You” tab. His never-ending digital support of Trump — reposting the campaign’s messaging as well as misinformation (such as with Hurricane Milton) — may be driving his detractors crazy, but legal experts tell TheWrap there’s nothing he’s doing that’s against the law.
These experts say that internet regulations, First Amendment boundaries and even campaign finance laws do not amount to sufficient evidence to check Musk’s posts.
“That’s where the Musk critics run into a wall,” Matt Bilinsky, an LA-based attorney and Fox News contributor, told TheWrap. “He’s not preventing others from stating their messages or communicating their messages [on X]. And that’s where Section 230 issues would come up — around restriction, not around [Musk’s] affirmative messaging.”
Section 230 of the Communications Decency Act is the broad legal shield that gives companies like Facebook and X the ability to moderate content however they want. If Section 230 sounds familiar, that’s because it was a hot topic during the last election. In 2020, many conservatives argued Facebook and X, then known as Twitter, violated the spirit of the law by banning and censoring right-leaning accounts much more often than left-leaning accounts. Both platforms, notably, blocked the New York Post from sharing its reporting on Hunter Biden in the month leading up to the 2020 election.
Bilinsky said that’s not the case with X under Musk, though. The company has actually increased suspensions under his stewardship, but that’s tied to what it says is a crackdown on child porn, not to what users say on the platform.
There’s another key factor that blocks action against Musk for his pro-Trump posts: The First Amendment. Yes, he’s the world’s richest man and has more followers than anyone on X, but that doesn’t erase his right to free speech, Bilinsky argued.
“His First Amendment protections would far outweigh Section 230 concerns,” Bilinsky said.
Sarah Kreps, Director of the Tech Policy Institute at Cornell University, echoed Bilinsky’s take, saying the First Amendment allows Musk to say whatever he wants about Trump and Harris on his own platform, whether true or not. That protection is amplified, she said, by the fact that he took the company private when he bought it in 2022. (X no longer reports its daily users each quarter, but last October the company said it had 245 million daily active users.)
A rich media owner isn’t a rare thing, either, Kreps said. Amazon founder Jeff Bezos owns The Washington Post, and Salesforce CEO Marc Benioff owns Time Magazine, just to name two examples, though neither use their platforms to drive their own editorial agenda. Musk’s brazen Trump support gives off a different vibe that his critics aren’t accustomed to — and may drive a belief he’s doing something illegal. “Newspapers make political endorsements all the time. [Social media platforms and media outlets] are all in that marketplace of ideas,” Kreps said. “It feels different, but I don’t think it is different.”
Musk has gone from being open about his support for the former president to practically manic. He publicly endorsed Trump after the July 13 assassination attempt against him in Butler, Pennsylvania. Since then, he’s posted on X in favor of Trump, hosted a live conversation with him on X Spaces in August, and joined Trump to literally jump up and down joyfully on stage when he returned to Butler earlier this month.
“Unless Trump is elected, America will fall to tyranny,” Musk ominously warned in September. “Trump must win.”
Musk also gave nearly $75 million to America PAC, a pro-Trump super PAC that he helped form over the summer, according to filings with the Federal Election Commission covering the three months ending on September 30. That massive cash infusion comes with another Musk initiative, running Trump’s field operations in states like Pennsylvania.
At the same time, he’s been publicly critical of Trump’s opponent.
“Kamala vows to be a communist dictator on day one. Can you believe she wears that outfit!?” Musk posted last month, alongside an AI-generated picture of Harris wearing a red communist uniform. And on Thursday, Musk called her a “puppet” and claimed she cannot speak without a teleprompter.
Musk’s support of Trump and ridicule of Harris is “unprecedented” when compared to other media owners, Daniel Kreiss, director of the UNC Center for Information, Technology, and Public Life, told TheWrap.
Like Kreps, he said that legally this isn’t a major concern: “We have partisan media outlets, how is this any different?” But from an ethical standpoint, he said it would be beneficial if users knew how platforms like X and Instagram decided what content to promote.
“The ethical issue comes in if you’re not disclosing ways you’re actively involved in making content moderation decisions, algorithmic decisions, that favor one candidate over the other. That’s the ethical piece,” Kreiss said.
“I think users deserve to know how companies set up algorithms, make content moderation decisions, that are clearly disclosed.”
For Musk — who also runs SpaceX and Tesla, among other companies — there’s a risk to publicly backing Trump that his critics don’t consider, Kreps said: It could hurt his other businesses just as easily as it helps them.
“Given that he’s the CEO of a private firm, he can take political positions,” Kreps said. “And he does that at his potential peril. If users decide they don’t want to buy his cars or use his platform, there may be those ramifications. But nothing necessarily stops him from taking political positions.”
Some have clearly decided to unplug from Musk’s products in an effort to show they don’t share his politics.
“I’m so excited that every single car brand now has a fully electric car and I don’t want to throw undue shade towards Mr. Musk,” Jason Bateman said on his “Smartless” podcast. “But his politics is… I got rid of my Tesla. I feel like I’m driving around [with] a Trump sticker.”
Lincoln Project co-founder Rick Wilson has outright called Musk’s actions in support of Trump “illegal.”
“I think that for a guy who basically lives off government subsidies, this was not the best strategic approach,” Wilson said in part during a recent appearance on MSNBC. “The owner of Twitter putting his thumb on the scale for Trump, coordinating directly with the Trump campaign,… that’s illegal, under federal law about that, that you can’t do that.”
That argument doesn’t hold much weight with Kreps or Bilinsky.
“I don’t see that logic,” Kreps said about Wilson’s comment. “I see that [Musk is] acting as a private citizen who happens to have 200 million followers on Twitter, and it probably elicits some jealousy and animosity from people who would like that kind of following, but that doesn’t make it. That doesn’t give it grounds for a solid legal case.”
Bilinsky said it would take an “obscure and fairly novel approach to campaign finance laws” to punish Musk for endorsing Trump on the platform he owns.
“To my knowledge, no case has ever been made that simply expressive opinions or directed social media accounts fall within the jurisdiction of those laws,” Bilinsky said. “And so to be a legal issue, [it] would only arise under a very novel legal theory in regards to campaign finance law.”
