X's lawyer, Jon Hawk, argued that when the CCDH joined Twitter in 2019, the group agreed to terms of service that noted those terms could change. So when Musk purchased Twitter and updated rules to reinstate accounts spreading hate speech, the CCDH should have been able to foresee those changes in terms and therefore anticipate that any reporting on spikes in hate speech would cause financial losses.
According to CNN, this is where Breyer became frustrated, telling Hawk, āIām trying to figure out in my mind how thatās possibly true, because I donāt think it is.ā
āWhat you have to tell me is, why is it foreseeable?ā Breyer said. āThat they should have understood that, at the time they entered the terms of service, that Twitter would then change its policy and allow this type of material to be disseminated?
"That, of course, reduces foreseeability to one of the most vapid extensions of law I've ever heard," Breyer added. "āOh, whatās foreseeable is that things can change, and therefore, if thereās a change, itās 'foreseeable.ā I mean, that argument is truly remarkable."
According to NPR, Breyer suggested that X was trying to "shoehorn" its legal theory by using language from a breach of contract claim, when what the company actually appeared to be alleging was defamation.
"You could've brought a defamation case; you didn't bring a defamation case," Breyer said. "And that's significant."
Breyer directly noted that one reason why X might not bring a defamation suit was if the CCDH's reporting was accurate, NPR reported.
