Why Elon Musk can get away with tweeting about Tesla’s business plans

It certainly felt like a whim or marijuana-infused trolling, but Elon Musk’s tweet Tuesday morning about taking his now-publicly traded electric car company private is just how the Tesla CEO operates.

The Securities and Exchange Commission has a social media policy in place to make sure companies don’t mess with stocks or use social platforms to post information that can only be seen by a select few, like a private Facebook group or DM. But Elon Musk will always be Elon Musk — meaning he does what he wants. And even though Musk’s tweet was unprecedented, it didn’t technically break the rules.

“This is something different that we’re not used to seeing,” University of Pennsylvania Law School professor of business law Jill Fisch said in a phone call. Using Twitter to share information is pretty much like issuing a press release with the same information, she reasoned. Sure it affects the customer-investor feedback loop with its rapid-fire and nearly real-time pace, but “it’s something markets have to get used to,” Fisch said.

The tweet isn’t a formal announcement about buying out shareholders; it’s more like a public sharing-session mulling possibilities about the company’s future. But as we saw, that tweet affected the price of Tesla’s stock and led to a brief trading halt. This afternoon Tesla was up to $379, or 11 percent.

It’s hard to find other companies that toy with the Twitter megaphone to the degree Tesla does through Musk’s fingertips. Sure, Twitter used Twitter to announce its IPO, but couched its post in an SEC-friendly way. It wasn’t fanning the flames.

Compare that to Musk’s blunt tweet. He did away with legalities or formalities, while seriously hedging his word choice: considering. As a letter to employees later explained, this is a possibility, not something final.

Only if Musk is straight-up lying about his plans does this become problematic, Fisch said. The SEC will still probably look into this just to make sure everything is kosher. But if this was all an elaborate ploy, we’ll know soon enough.

Business consultant Alex Vorobieff sees the tweet as a piece of a long-building plan to throw off Tesla’s short traders. Musk has been very vocal about his disdain for those shorting his company. He brought it up in today’s email to employees and back in May to justify his strange behavior on an earnings call. 

Vorobieff also noted how Twitter is becoming a platform known to affect markets. Look at Donald Trump and his effect on companies‘ stocks just from tweeting about them. Fisch spotlighted Trump as well to show how Twitter is “an evolving area” for how leaders communicate. 

Eric Schiffer, CEO and chairman of The Patriarch Organization and Reputation Management Consultants, said in a call that to him Musk’s online behavior shows why Tesla should go private. “In doing these grossly unorthodox behaviors it’s painful for investors that are looking for a steward that is careful and rational in their communication,” he said. He echoed Fisch and noted the tweet is “highly unusual” but allowed. 

Schiffer sees Musk as a big-picture, or “marathon,” leader and he’s not used to “running a sprint” for a publicly traded company. Going private is not as surprising as it seems since it’s better suited to Musk’s style. 

Like Fisch, Schiffer said there has to be some legitimacy to what Musk said about securing funding and taking Tesla private — even if it’s thin and exaggerated. 

So Musk may be seriously considering privatization, but he’s taking a new approach to broadcasting his plans and running a business. Guess we should’ve seen that coming.