Techdirt Podcast Episode 238: Larry Lessig Defends His 'Clickbait Defamation' Lawsuit

from the is-this-title-clickbait dept

Last month I wrote a long post explaining why I could not support Larry Lessig’s new lawsuit against journalists and the New York Times for what he referred to as “Clickbait Defamation.” Lessig argued that a NY Times headline and lede was false, while I argued that it was a different interpretation, but not “false,” and thus not defamatory. I also argued that his lawsuit was a SLAPP suit, potentially harming the individuals named. Larry wished to respond to my post and I invited him on the podcast to discuss. Larry is a Harvard Law professor. I am not. This immediately puts me at a disadvantage in arguing things in a live debate, and while I don’t think either of us convinced each other of anything, l definitely understand his argument more clearly, though I still disagree with it.

The full discussion is now available as the latest episode of the Techdirt Podcast.

As I said in my intro to the podcast, I think it’s worth reading all of the background information to understand what we’re talking about, including:

Also, for the first time, we are providing a transcript with this podcast. This is an experiment. We have wanted to do transcripts for a while, but it is usually quite expensive and/or time consuming. In this case, given the likely interest in the discussion, we felt it was worthwhile. We are testing an automated transcript service, and while we’ve gone through it and tried to correct the errors, it is likely that some still made it through. We apologize for any such errors and will try to correct them if you alert us in the comments.

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TRANSCRIPT: Techdirt Podcast Episode 238

Mike Masnick: Hello, and welcome to the Techdirt Podcast. I’m Mike Masnick.

[theme music]

MM: Today on the podcast I’m going to do something that is perhaps incredibly stupid, which is that I am going to try and probably fail to debate a legal issue with a Harvard Law professor, and not just any Harvard Law professor, but Larry Lessig, who I have long admired and have learned so much from over the years. Larry’s work has certainly been an inspiration to me for many, many years. And among the many things that I’ve appreciated about his work is not just that he takes very principled stance on big and important issues, but that he does so even when they sometimes look hopeless from the start. But what is so fundamentally powerful about many of his ideas and stances and efforts is he goes into them with such thoughtfulness and with such earnestness and based on such principled reasoning that even those projects that I think sometimes look hopeless, to what I would refer to as the savvy and the cynical, suddenly appear possible. And it’s that principled possibility to change the world against all odds, even if it might not work, that has always made me appreciate his work, even beyond the specific value of the projects that he takes on. It’s also why I’ve always tried to support each and every one of his projects and campaigns and to urge Techdirt fans to do so as well. However, as I wrote recently on Techdirt, I cannot support his most recent effort, which is his attempt to create what is effectively a new class of defamation which he refers to as clickbait defamation. Larry recently sued the New York Times, along with two of its editors and one of its reporters for an article that they wrote about something he had written in a Medium post. If you aren’t familiar with the background here, I would urge you to go read of the background material, including Larry’s Medium post, in which he publicly struggles with his advisory role in talking to his friend Joey Ito, previously of the MIT Media Lab, concerning the decision of whether or not to take money from known sexual abuser Jeffrey Epstein. I would also urge you to read the New York Times article and Larry’s response to it as well as the lawsuit that he filed. Most of the details for this can be found on Larry’s new website You can also if you choose read the article that I wrote about the lawsuit. We’ll link to all of this in the show notes. We may discuss some of the details here but I feel that the conversation would probably be better understood if everyone has read all that material first. I will instead start off by simply noting that we are living in an age when defamation law is frequently being weaponized against reporters. As most listeners know, I have fairly recent firsthand experience with this and Techdirt has come close to in fact shutting down due to this. So I’m extremely sensitive to defamation lawsuits against reporters and journalism outfits. So perhaps that makes me too biased against any defamation lawsuit. However, I still feel that Larry’s lawsuit and wider campaign may be very dangerous to a free and functioning press. But given how much I’ve learned from Larry over the years, and how much I respect and appreciate his contributions on a variety of different topics, I felt it was only fair to talk this through with him and he graciously agreed to come on the podcast today, and to discuss and respond to my criticism of his campaign. So Larry, welcome to the podcast.

Larry Lessig: Mike. Thanks for having me.

MM: So Do you want to start out just by explaining your side and sort of why you brought the lawsuit?

LL: Yeah, sure. Um, let me ask you a question first. Have you ever interviewed Richard Stallman?

MM: I have not. I have interacted with him a few times, but I’ve never interviewed.

LL: So, you know, obviously, everybody in tech world knows Richard Stallman. I’ve long been an incredible admirer of Richard Stallman. And the work that he’s done for the free software movement and for freedom generally, and for a while I actually served on the board of the Free Software Foundation. And in that context, in another context are many things that Richard Stallman said that I disagreed with. But, you know, there were just things that he said that I disagree with, like when we were on the board, he thought we should invest all our money in gold. I thought that was really stupid. Turned out he was right. That was really the smart thing to do. But the point was, you know, it was just a disagreement. Okay. So that There was one time when somebody, it was almost like, triggered Richard to start talking about pedophilia. And he started, you know, questioning whether pedophilia was a crime or whether it was a sort of crime that ought to be punished the way it’s punished or we ought to be as uptight as he put it about it. And I remember him saying that and I remember almost the sound of a bad AM radio station, kind of filling my head as I sat there stunned, I couldn’t hear him. And the reason I couldn’t hear him something I talked about in the article, the original original Medium post is that, you know, I myself, was a victim of sex abuse as a child for many years, for three years. It fundamentally affected me it has affected everything I’ve done. I kind of, I could tell you, not this podcast, but I could tell you how every single project I’ve ever done has flowed out of that abuse. Okay, so I say that to say, if you have not been in that position the reason why it was important to me to fight this defamation might not be clear. But the reason is so important for me to fight that defamation, this defamation, is that I am a teacher. And in my classroom, there are women who have been sexually assaulted or sexually abused, there might be men who’ve been abused as a child. And when they look on the New York Times website, and the headline says, Lessig defends taking money from Jeffrey Epstein, they become, they react they will react the way I reacted as I heard Richard Epstein [sic] defending pedophilia, and it will be impossible for them to hear me if they understand me to be that sort person. So, in my experience, and in the context that I work, it was extremely important for me to make sure that this impression that I, in fact, did what the New York Times said I did was not true. Now, you know, the way I tried to do that originally was the way all of us try to deal with this type of problem in the modern digital age. When the headline came out, and the lead came out, I contacted the New York Times and I said, what the hell, you know, this isn’t true. I didn’t actually – I said it more playful, you know, quiet way, I didn’t directly say, please change it. I said, you know, seems that your headline editor got out of control here. Okay. It’d be great if you could fix that. And, to my astonishment, they didn’t fix it. To my astonishment, they continue to allow the headline to present a fact which is just false. In a way that is extremely harmful to me, and especially to me, because especially someone who has experienced this in the way that I have experienced to be placed into that light by them, you know, knowingly given the complaint, both before it was published and also after it was published, you know, constitutes what we call defamation. You open by saying this is a new kind of defamation, there’s nothing new about this. This is knowingly publish, publishing a false and defamatory fact. And, you know, in the internet age, I think the response should be they should take it down. They refuse to and so that’s why it became essential for me to take the next step.

MM: So let me explain why why I say that it's a new kind of defamation and part of that, frankly, is that you know, you yourself referred to it as clickbait defamation as if it's a slightly different category of defamation. The issue, I think, and this might jump into the legal weeds pretty quickly is that Typically, the way defamation works is that you include the whole of the piece, that you combine everything together, and a part of the argument that you're making and correct me if I'm wrong, but part of the argument that you're making is that it's truly the headline and the lead, the opening of the article, that are the concern. And as people have pointed out, you know, more of the the nuance and details that you're claiming in your article are laid out later on in the New York Times piece. But your concern is that the opening is the problem. And that's why I said it's something new because you're effectively trying to say that we can separate out the headline and the lead of the article, and and not include the fact that the the nuance and more specific points that you're trying to raise are highlighted later in the article.

LL: So what's new is we live in an internet environment where there is an incentive to produce clickbait. You know, I mean, there's technologies designed to facilitate the construction of clickbait, you know, Chartbeat, technology that enables the New York Times to sit there and watch different versions of a headline and see which versions actually produce more click. Now my view is, there's nothing wrong with that, as long as what they're saying is not defamatory. If it's true, you know, this is just the way the current economy of internet journalism works. You know, we might regret it. But I think we have to be honest about the fact it is different from what it was like, in the days when the New York Times printed a piece of paper that you then threw away the next day, there was no incentive to put a headline that misleadingly tried to draw people into an article. They didn't get paid more if you read one article versus another article, you already bought the newspaper. So the first change that we have to recognize is the economy of influence of internet advertising, on the way journalism functions. You, yourself, I'm sure have confronted this issue tons as you begin to see how other people talk about stuff or the way headlines get evolved to make people draw into articles. That's that's that seems to be an undeniable reality. So that's number one. Number two is you're right. Historically, the way the law of defamation has traditionally thought about asking the question whether an article is defamatory or not is to say, so take the whole article and read it and see whether it's creating, you know, the impression which you said is false. Okay, but what we know about the way internet, the internet works, is that you know, the York Times writes an article and then they tweet out the headline, maybe the lead, and the tweet and the headline and the lead and Facebook and wherever else they want to put it gets seen separate from the article, and not everybody who sees it could even read the article because of course, you know, if you're not subscribed to the New York Times, or you've read too many of the free articles from New York Times, you can't even get through to it. Indeed, I've had an Twitter exchange with one person who like, represented that. I was defending Jeffrey Epstein taking money from Jeffrey Epstein. And I, you know, I thought very politely responded, actually, I didn't do that. Here's what I said. And then this person responded, and said, jeez, you know, I couldn't read the New York Times article I didn't know that's what it actually said. So I'm sorry. You know, you. I understand now what you were trying to say. So my point is, if there's a difference here it is that, in fact, there are different practices of publication here, from when the traditional rules of the First Amendment were developed. And that's why in the first circuit here, there's a evolving doctrine, which is increasingly saying you can't hide behind the whole of the article, if the headline itself is false, and defamatory. Now, in your piece, you said that the headline didn't include some of the nuance of the article. That's not my complaint. Michael places the headline is false, just flat out false. And of course, if you read the headline and the article, then the nuance of what I was trying to say is clearer, but it doesn't change the fact that the headline itself is asserting something that is flatly not true.

MM: So I mean, so let's dive into that. Because that is to some extent up for dispute, right? I mean, so a bunch of people pointed out that what is in the headline is stated in the article. Now it is stated out of context, and I think that is some of the problem, right? The, you know, you, you know, the article as I described it, and you can again, correct me if I'm wrong, The article as I described it was you sort of trying to think through and, you know, go through the mindset of the earlier conversations that you would have with Joi and, you know, and to think through like why you advised him the way you did at the time and that is a lot of what the discussion is. What the New York Times headline does is they sort of took one piece of that, which was effectively an attempt to go back and understand your thinking a few years back, and present that as if it was, you know, the present day, that that was your position this these days. And and what your article is arguing is that that's no longer the case, that you understand what you believe was a mistake that you made earlier. Right. And so, you know, the question is, to reach a level of defamation, it has to be something that is is truly false, whereas in this case, it it may have just been a misunderstanding of context, and I still argue nuance, of what it is that you were trying to get across. But to say that it's false. I mean, it's it's a pretty fine line that I don't think you can make the claim that it's, you know, outright false. There, you know, you did basically say that within the article, it's it's within the context of what you're trying to, the point that you're trying to make.

LL: So let's make sure that we're all talking about the same thing. So the headline of the article was "a Harvard professor doubles down. If you take Epstein's money, do it in secret". And then the lead said it is hard to defend soliciting donations from convicted sex offender Jeffrey Epstein. But Lawrence Lessig, a Harvard professor has been trying. Okay, so let's start with the first one. Harvard professor doubles down, if you take Epstein's money, do it in secret. If I said to you, you know Mike, if you drink alcohol, you should do so in moderation. But never drink rubbing alcohol. Would it be true to say I've said Mike, if you drink rubbing alcohol, do so in modern moderation. And the answer to that logically is no I didn't say drink if you drink rubbing alcohol do so in moderation. I said never drink rubbing alcohol. What I said is if you drink alcohol by which I meant the other alcohol, do it in moderation. Okay, what I said in this piece is there's type three donations, by which I meant donations, where the money itself is not blood money. The way kind of, you know, money from the Reynolds Foundation, which is earned from selling tobacco products is blood money. It's just money from somebody who is himself a criminal, like money from tax fraud. If you take that money, then don't take it in a way that burnishes the reputation of the person who gives it. So in that sense, assuming we don't think that Epstein got his money from blackmailing people who had engaged in crimes with young girls, if you don't think it's blood money, and that sense, it's just money from somebody who's a criminal, you could say it's type three money. But what I explicitly say repeatedly in the article and then in the emphasis was, let's just read one quote: if you take type three, and you take it anonymously, it's a mistake to take this particular type of, this particular type of type three contribution precisely because of the pain it would cause if it were eventually revealed. Maybe you can take the money of a tax fraud, again, if and only if anonymous, but the kind of pain triggered here means that that general rule should not apply here, which again, is why I said I believe it was a mistake to take this money, even if anonymous. So if you summarize what I say by saying, it's okay to take this money, if it's anonymous, what you're saying is false. I said, don't take this money, even if anonymous. Even though I said other kinds of type three money you should be able to take, so long as it's anonymous. This is not nuanced. That's just not true.

MM: The, so the where it gets tricky I think, is that you do, you're doing two different things here. And it depends on how people read it and interpret it. And part of the problem, I believe, is that many people read the article and interpreted it very differently than you intended for it to be to be interpreted. And part of that is because, you know, you're doing a few different things, and one of which is trying to go back to the mindset of where you were. When when you talk to Joi and Joi was discussing the possible donation from Epstein. And you go through that, and in that you do describe Epstein as one of those type three people. You then explain more modern, in hindsight, in retrospect, your view of why that was mistaken and why you should not take that money and as you just said, all the pain that that it can cause but many people Including it appears some of the New York Times reporters read the original thinking behind, you know, you explaining what you were thinking at the time, however many years ago, seven, or whatever years ago as being a defense of what you said at the time, and it's not just the New York Times, I mean, there were many people who you and I know who were discussing these issues and reading your piece, and were critical of it, in part, I think, because they they were missing that nuance as well. And you can argue that, that it's not nuance, but the fact that so many people read it that way and read it as a defense, at least of the original advice that you gave Joi is, you know, that's what happens when you have something that that is open to interpretation, and that's not defamatory.

LL: Well, look, I'm not suing the internet. I'm not suing everybody who you know has a life and has a million things they have to do and they don't have the time to sit down and parse through exactly what I said, I completely accept the idea that you read a 3500 word essay, especially an essay that's kind of you know, I woke up crack of dawn and just pounded it out. I don't you know, believe that the essay has to be self interpreted, you know, completely clear. If you spend 10 minutes or 15 minutes or an hour interpreteing, I'm not saying that. What I'm talking about is the New York Times and the reporter who read the essay, spent an hour with me talking about it, fact checked it with me. When I fact, when she fact checked it with me, the headline, I don't I don't think she reported the headline, but the lead or the thing that was starting it sounded like what eventually became the headline, we explicitly talked about the fact that I was not actually then defending taking money from Jeffrey Epstein. And that the suggestion that I was wasn't true. And at that point, she said, yeah, that's I get that. We'll, we'll deal with that. So, so my point is not about people who might have read it and whether they might have understood it or not. And, you know, suing people who didn't understand my writing, my gosh, you know, a lot of people to sue, and I accept responsibility for lots of people who don't understand my writing, because I understand it's complicated to convey things. What I'm talking about is a particular person who had ample opportunity and was in fact on notice about the falsity of what was said. That's number one. Number two is, she's not New York Times is not defending what happened here by saying, oh, we were talking about what you said to Joi Ito five years ago. That's not their defense. That's that's not the confusion that they think has been manifested in the headline or the lead. And and indeed, if that were, then they got a problem with their tenses. If they had said, a Harvard professor once defended, okay, that would be a different claim. If they said that originally advised, okay, I get it. But what they say here for the purpose of like outraging people to get them to click onto this article because it's like, oh my god, are you kidding? They said a Harvard professor doubles down if you take Epstein's money, do so, do it in secret. And then they said, it is hard to defend soliciting donation, but Lessig has been trying. Now, you know, it's not that he tried once a long time ago and then wrote a 3500 word essay about why it was wrong to take money from Epstein. Instead, they created the impression in their headline and in their lead, that I am defending what Joi Ito did, when in fact, what I said in the article is it was a mistake to do what Joi did. And it's a mistake to take Epstein's money even if you take it in secret.

MM: Right but but the the larger point is that it is still one of interpreting what you wrote. And you can argue that the New York Times and the reporters and the editors in question, you know, should be held to a higher standard. And I guess that is the basis of your argument. But if it is something where many people are interpreting it that way, whether or not they, you know, have the same responsibilities as a journalist or journalism outfit as the New York Times, the fact that that interpretation was so common, suggests that it is not defamatory in terms of, you know, factually incorrect, and, you know, done with with as the phras is, you know, reckless disregard for the truth, but rather it is a possible interpretation. Your argument is that it is the wrong interpretation. And, you know, and I see your point, and I think you're correct that the interpretation is misleading, but it's still an interpretation and interpretation, by its very nature is, you know, what someone's opinion is of what you said, and opinion cannot be defamatory, right?

LL: No, that's not. That's not correct. I mean, there's a couple things you said, I will make sure I haven't created the impression. It's not that there's a higher standard is that what you say has has to be not false and defamatory. And the question isn't whether she has an opinion about something. The question is whether she's representing something as true. So she's not like saying, I think you should vote for the Democratic Party. Or I think you know, all law professors are too pompous. I mean, those would be perfectly fine opinions to publish. And of course, there's no defamation in them. What she said was, I have been trying to defend Jeffr- taking money from Jeffrey Epstein. what she's saying is I've represented, she's representing that I'm doing something, defending taking money from Jeffrey Epstein. When I don't.

MM: But...

LL: Just show me, show me where I defend taking money from Jeffrey Epstein. Show me where I defend that.

MM: In the essay. you defend the thinking that went into that, you know, this is what the nuance is, right. You defend where you were and what your thinking was at the time that you made, you know, your thoughts known to Joi. And so it is possible to read that clearly as a defense of taking money. You then do go on to say why it's now in retrospect a mistake. But there is still the defense of of what, you know what the thinking was at the time. So it is still accurate to say that there is a defense in there, within that piece that you wrote, there is a defense of why someone could think based on these facts and these patterns, why it would be acceptable to take this kind of money, you then explain why, you know, in retrospect, that was a mistake and the errors, but there is a defense in there. And so-

LL: Okay, I mean, I get that, I get what you're saying. Although, again, if you look at what they've said in defense of what happened, they're not making that point at all. They're not making a point about, you know, the fact that I was talking about, that they were talking about what I was saying five years ago. There's they're saying about what I'm talking about now, that's number one. But number two, let's just let's just test your theory. So if I say to you, Elizabeth Warren was a Republican, and then Elizabeth Warren became a Democrat. And you published an article and said, Elizabeth Warren is a Republican. Is that true?

MM: That is not, a that's not an analogous situation by any stretch of the imagination.

LL: Of course it is. It's a perfectly analogous to what you've just said. What I said in the article was explaining why when Joi talked to me about taking money from Jeffrey Epstein, I could understand how it could make sense. Okay, so at that point, I'm saying, I am explaining why-

MM: That point is a defense of what happened back then. Right?

LL: It's not, that point isn't, you could say that point is me expla- defending why they did what they did then. But in the context of an article that says, "but that was a mistake", to then forget the second half and report the first half is to create a false statement about what I have been trying, quote unquote, trying to do. What I've been trying to do is explain why it was a mistake to take money from Jeffrey Epstein.

MM: Right, so, so here, here's my point. And this is this is partly me putting on an editor's hat. Right? I mean, to me, the problem there is that, you know, if I were writing your piece, and obviously I can't - I'm not in your shoes, but if I were writing your piece, I would have framed it very much from the very top and the very start, as: this was a a mistake, and I am explaining why this was a mistake. It's not. In your piece, it comes across more sort of, you know, it's burying the lead as they would say, to some extent, and that opens people up to, you know, misinterpretation and and misunderstanding of the point that you were trying to get at.

LL: But Mike, I don't understand how your framing would be less susceptible to your argument than my framing because in your framing too, even if you started with the part that said, look, everything about that I'm going to tell you here is about how I made a mistake before. But let me explain to you what I did before. And then when you take that part where I explain what I did before, what your sa- what your argument is, is that somebody would be entitled to take that part out of context and then represent that that's what I'm doing now. Yet, yet -

MM: I'm, I agree with you that it is, it's not correct, that the New York Times article misrepresented what you were trying to say, we agree. The question is whether or not that is up to the level of defamation and whether or not it is then appropriate to use the the power of the courts to go after those people.

LL: Okay, that's, so we've made, we've made huge progress here, you know, and when when I agreed to talk to you, it's because, you know, I mean, the respect goes both ways. I mean, I've, I've seen your work. I love tech dirt. I mean, you know, so I, you know, I had faith that we could at least get here. Okay, fine. what they said is not true. So should there be -

MM: And I didn't say, but I didn't say it's not true. I said it's misrepresent- misrepresenting it, which is not the same as not true, right. There's, and this is, this is part of the nuance, right. So, and this is part of a wider discussion that's happening all over the place between like, you know, there's this idea of this black and white idea of like truth and falsity and yet there is a wide spectrum and much of that spectrum is actually opinions, right, opinions about what was the intention, opinions about, you know, what are people thinking at the time, opinions about you know, what was the reasoning behind this, that is different than somebody that is a blatant, you know, truth or falsity. And, and in that space, in that gap, is a wide area that is often one of interpretation. And my argument is that when it is purely one of interpretation, that is not false, that is not not true, it's it may be misrepresenting something. But that is not the same as saying it is false.

LL: So, let's just be sure that I understand where you think we're just, quote, interpreting an opinion. Let's go back to the hypothetical. Right. So the one about alcohol. So when I say if you drink, so if I say Mike says, if you drink rubbing alcohol, do so in moderation. Is that a true statement of what you've said?

MM: Well, so, I mean, if, if what you actually had presented was, there are different kinds of alcohol and you go through the different ones and you are talking about you know, number three alcohol is rubbing alcohol and, and you describe why there may be some cases in which you could take it in moderation. And then you say, so, you know, if you are to ingest number three alcohol, do so in moderation, but in retrospect that is obviously wrong and it will kill you or whatever. That's more akin to what you did, because you did have this original part in which you were defending the thinking at the time.

LL: Again, I, I think there's two separate points that are here. One is about whether the temporal difference is significant. So we could argue about that. But the second question is just whether the claim in the current context which is about what I argued is true or not. So if I say take type three, if you do so anonymously, but never take this type of type 3, am I saying tape this type of type three, if you do it anonymously? So it's just a logical question, right? I mean, that's true or false. Is it a true step summary of if you drink alcohol do so in moderation, but never drink rubbing alcohol, to say if you drink rubbing alcohol do so in moderation.

MM: But you're still, you're still leaving out the first part, which is that you did in the past explain why that would have been okay.

LL: I'm not leaving it out. I'm just asking you to separate the two questions for a second. So if we just bracket that for a second-

MM: Again, it's, you know, any summary of any situation is going to involve choices that are being made about what what bits of information and how much of it is conveyed. Right? And so the complaint that you're making is that it does not convey all of the information and therefore and not conveying all of the information that somehow, your argument is that makes it false. My argument is that it is a misinterpretation. And that does not mean it's false. It is just not conveying full information.

LL: Okay, let's try this. So everything that you're saying now depends upon believing that what they were talking about here is what I said to Joi five years ago, however many years ago it was, but let's remember what the title said. The title says, a Harvard professor doubles down. If you take Epstein's money, do it in secret. By talking about me doubling down, they're not talking about what I was doing in the past. They're talking about what I'm doing now. They're saying what I'm doing now is arguing if you take Epstein's money, do it in secret. Yeah. Now, even if you think that my piece was talking about how you should take Epstein's money in secret five years ago, it's not correct to say that today I'm saying if you take Epstein's money, do it in secret. That is false and to say I'm doubling down is to say he's doing it right now. It's amazing. It's astonishing. That's why you should click on this article, please click on this article because a crazy Harvard professor is doubling down, take Epstein's money in secret. Now, that's just not true. It's not nuance. It's misrepresenting. And you know, the line you're suggesting between misrepresenting and false is an interesting one. But it's not just a nuance it is just flatly not what I am doing. And that is reinforced by the lead, which says that I have been trying to defend taking money from Joi- from Jeffrey Epstein. It doesn't say at one time many years ago, I wasn't defending I was explaining and understanding, but anyway, that's a quibble. Doesn't say that I was doing in the past. It's saying I'm doing it now. So if you represent that now I am defending taking money from Jeffrey Epstein, and now I am saying do it in secret, you're saying something that is false and obviously defamatory.

MM: And that's where we disagree and we'll see what what the court has to say about it. But like, again, it is an interpretation of what you wrote. And and as I said, and you can say that it's different, many, many people interpreted your article in that manner. Many, many people read it as a defense of the original donation and in support of why MIT and Joi should have accepted that money in that case. The, the aspect of why you now in retrospect view it as wrong was was underplayed in the article frankly, and so it is possible to read that article and, and to get the point that you're raising incorrectly. And, but that alone, misinterpreting it, misreading it, doesn't make it defamatory, and that's, that's the point. And I mean, we could go around in circles on this, but can you can and, you know, you can have the last word on it, but I do, I would like to move on to, to also the discussion of, you know, defamation law as the remedy here, and whether or not that's appropriate. But if you want to get get a final word in the the truth or falsity of the statement, feel free.

LL: Well, I appreciate that. I mean, you know, if we measured truth by taking a poll of how many people read something one way I read something the other way, then you know, you're right. But then we wouldn't have defamation law because any 3500 word essay is subject to 1000, quote, interpretations. The question is just: is it a true statement to represent that in the current context, I am defending Jeffrey Epstein. Now you're saying, it's true to say that in the past context, you defended taking money from Epstein, and I would say that's right. That's fine, in the past context. But both of these sentences are focusing people on a statement. That I'm doing something today. And that is what is false. And if that's false, and defamatory, and I've noticed them about the false and defamatory character of it both before it was originally published and after it was originally published, then they should do something about it. Which brings back to the question that you want to move on to. So this is a great transition. Why is defamation law the right way to address it? Well, I think the right way to address it was for them to change the title and the, and the lead, you know, if they had responded the way, you know, any number of times I've had a problem with a title or even something in an article and in the internet age, and I've contacted somebody and never ever before, has somebody not corrected it. But instead of correcting it, they double down, you know, they, they insisted that they were not going to move it all off of this articles title even though this had been flagged to them before they published it and we flagged it to them after they published it. So I guess I turn this around. Why isn't the real complaint here against the New York Times? Why aren't you as a journalist saying, look, the obvious thing you should have done here is to take the defamatory sting out of the headline, maybe you wouldn't sell as many ads. Okay, fine. But the point is, it's not true to represent that he is today defending taking money from Jeffrey Epstein. And so in the internet age, at least, we ought to use the advantage of having a perpetually published platform and adjust the correction, adjust the falsity going forward.

MM: Yeah. And, and look if, if I were to spend my time arguing about New York Times headlines that, that would be my full time job. I know-

LL: No, I don't think that's true. I don't think you can point to another defamatory headline. I don't, I don't think so, I don't think-

MM: We already we already disagree on whether or not this one is defamatory. But, but there are a number of times that I think the New York Times, you know, misrepresents things, and often in their headlines and in their leads, and I've complained about them in In the past, I've even complained about this particular reporter in the past. I don't disagree with you that that the article was not, not necessarily fair and that, that, you know, if if I were in the New York Times' shoes would I have adjusted the, the headline and the lead? Probably. I think, I think that that it is misleading, as I said, I think it's a misinterpretation. The question as to whether or not it rises to the level of defamation. And then whether or not it is, is appropriate for, you know, the use of the courts and defamation law as, as a manner of correcting it. I think that there is a much stronger and more, you know, free speech supporting argument that the proper response is for you to simply, you know, call out the New York Times and explain why this is a complete misrepresentation. And I know that you've done that. But then it's a question that is, you know, out in the court of public opinion and lets people discuss it and Lets people present it and lets people understand the, the nuance and the arguments. And if that reflects poorly on the New York Times, then that's fair that that should reflect poorly on the New York Times. But taking it to the level of going to court and bringing not just the organization but the individuals involved to court strikes me as going way too far.

LL: Okay. But again, I think that you're not characterizing the full context. And that, you know, to the extent you're criticizing me, it's wrong that you're not criticizing them. I didn't see your article criticizing their response here, right. Because in the internet age, their response should have been to correct the false impression in the headline. I think it's false and defamatory, you say it's just misleading, doesn't really matter from this perspective. The point is, it's clear how it's harmful. It's clear how people are led to believe something that's not true. Why isn't the right response for them to correct it? So when I report, as I do in the lawsuit and in, you know, in the writing about it, that I went to them and I said, you should fix this and they didn't, then you who are in the position of trying to comment about the appropriate response to this problem, should also be saying the appropriate response to this problem is they should have fixed it. They didn't fix it. So if they don't fix it, then what should happen? Your response is, I should just write my piece on Medium and just live in the world where people can read my piece on Medium, they could read the New York Times, they could read my original essay, they could all work it out. Okay, but the reality is Mike, you know this. It's one 100th, maybe one 1,000th, maybe one 100,000th of people who get to read the response on Medium as read the New York Times article, or even a smaller fraction of that, who get to see the headline on the New York Times article. And to this day, the thing you know, I still get people on Twitter, like, you know, putting up the headline and lead to that article to bash me for the fact that I'm supporting Jeffrey Epstein, right. I I have this affection for Jeffrey Epstein. So you know It's just not real to say that the proper response in the current age is for them to continue to publish every time someone clicks the link a false and defamatory headline or in your framing a misleading headline, without doing what the- anybody in the internet age would do, which is just to correct it. And so, that, so the question is for you is like, why aren't you criticizing them to the extent you want to criticize me about taking the next obvious necessary step given they haven't taken the correction that they should have taken?

MM: So, there are a number of different answers to that. And so, one is that, you know, again, when it comes down to interpretation, I can I can agree with you that I think the New York Times is misleading, but again, as I pointed out a bunch of times, many people still interpreted the article that way, it is possible that they interpreted the article that way. And, and missed, and misunderstood, the the nuance and the context and the framing that you were providing.

LL: Okay, but to make this interesting, I mean I'm not saying you believe this, But you know, we've had this argument about whether it's just misleading or it's a fair interpretation, blah, blah, we've had this 1000 times. But now we're at the point where we're talking about what the appropriate response is. So for purposes of this part of the argument, let's assume it is false and defamatory. If it's false and defamatory, and I tell them, please take it down, and they don't take it down. What is the appropriate response? So your respons is I should never file a lawsuit against them, to tell them to stop doing something like this, especially when it is so incredibly harmful to me in my career, and to me, psychologically, given my past I should just say, you know, whatever, just learn to live with it, it's the New York Times, we love the New York Times because it's liberal, I mean, what, what is the appropriate response if in fact it is as I claim it is, and as you say, the courts will determine it is false and defamatory.

MM: So, again, and this is, this is perhaps my bias in, you know, having been sued for defamation and having gone through these cases and, and reporting on many, many defamation cases, I think almost all defamation cases are better handled in the court of public opinion. And that expressing yourself and expressing why that is wrong is a better, fairer, more just, and more free speech supporting remedy. And so, you know, there are some cases where I think defamation law is appropriate, but they tend to be very extreme, and they're not ones that could be subject to interpretation, it would have to be something, you know, that is way beyond that. It is not one that where this discussion on this debate would even be appropriate. I think that you're right, that the New York Times has a larger platform than you do. But I also think that if you can clearly and convincingly show that the New York Times was misrepresenting you, that itself is a story and that would get attention on its own. The separate issue, if, if you wanted to go to the point and and take it as given that this was clearly 100% defamatory. And, you know, in that case, the only other argument I would make is, if you feel the need that there is no other remedy that is appropriate other than defamation. I would still question why you did not just sue the paper alone, but chose to bring in the reporters and the editors as individuals as well.

LL: Yeah, that's a fair question. And, you know, in the context of ongoing lawsuit, I can't describe or discuss, like the reasoning about the legal strategy. So I- you know, it's fair to flag that as a question. But, you know, I do want to- it is interesting to note, this point that you started with in the section where you said, you know, given your experience as a journalist and experience with defamation lawsuits, you think it's just something that shouldn't happen. It's, it's, it strikes me as funny, you know, in my field, the lawyer's field, if you told me you, you got screwed by some lawyer in the context of a lawsuit and you brought a malpractice action against them, my view is that's good for you. Good for you. So if the lawyer is done bad to you and hurt you by it, then we as a profession, need to make sure that doesn't happen. So when I said like, assume it's false and defamatory, and they've not corrected it, even though repeatedly asked them to fix it, and it's trivially easy to fix it given ongoing publication. It's, it's interesting that the respons is not, well, you know, the harm should be corrected or the harm should be remedied, but instead the responses well, you know, you can mitigate the harm and minimize the harm by you know, putting your own Medium piece up, when we both know that, you know, the, the attention and the spread and and the sting remains regardless of what I do.

MM: So but, but my point is larger than that. My point is that I don't believe that you've convinced even the New York Times that they are wrong.

LL: Well, I get that I haven't convinced New York Times that they are wrong. That doesn't affect whether they are wrong or not.

MM: Well it, it does right?

LL: No.

MM: I mean, it, it affects whether or not it's defamatory, right?

LL: No, it doesn't. Whether they agree it's defamatory or not, does not determine whether it's defamatory or not. Just like whether Donald Trump believes global warming is true or not, does not affect whether global warming is true.

MM: That's correct. But, but when we're talking about the standards for defamation of a public figure, and you are very much a public figure, you know, you know what it is, it's actual malice, right? An actual malice is not what everyone thinks it is. But it's that it was stated knowing that it was false, or with reckless disregard for the truth. And so obviously, your argument is that it's both of these, that you informed them that this was false, and therefore it was knowingly false and that it was with reckless disregard for the truth. But what I just said before that was that, they still believe that the reporting is accurate. I believe that it was misleading. You believe it was false. They believe it was accurate. And in that case, if they believe that it was accurate, and they felt that they have, you know, a strong reason for publishing what they did, it does not rise to the level of defamation.

LL: Yeah, so but this is an interesting point about belief versus the actual malice standard. The question the actual malice standard is, whether it is, whether they publish it knowing that it's false with reckless disregard for the falsity as you say. And of course, the important fact here is in the, quote, fact checking stage, where they basically read the article to me, and the beginning of the article had this tinge to it. I don't, I didn't record it so I don't have the exact words. I flagged it as false and Nellie's response to that was okay, we'll fix that. Okay, so, to the extent, she didn't say at that point oh no no no, you in defending Joi, five years ago, you said that this was blah-blah-blah, didn't say any of that. She just acknowledged it. And so, you know, to the extent the question is whether there was knowledge prior to publication, hell yes, there was knowledge prior to publication, and whether or not there was knowledge prior to publication, this was knowledge after publication of the way in which this falsely represents what I'm doing now. But their belief, you know, again, your defense has nothing to do with their defense. Their belief is look, I'm defending Joi - this is their defense, right? Their defense is, I'm defending Joi Ito, so therefore I am defending Joi Ito taking money from Jeffrey Epstein. Which you know, is just obviously, fallacious, right, because like, if you don't believe in the death penalty, you might say that the Boston bomber should not have the death penalty and you would write an article saying don't give the death penalty into the Boston bomber. But if I reported that you believe in terrorism because you don't believe the Boston bomber should have the death penalty, that would be obviously not true to what you had said. That's exactly what they did -

MM: But it would also not be defamatory, right? I mean, it would be in-

LL: Yes, it is defamatory. No-

MM: That kind of interpretation happens all the time, especially in political context these days. I mean, taking things out of context or misrepresenting. I mean, that's, you know, the, the entire, you know, impeachment debate has been, has been two totally different interpretations of the world, actually more than two different, totally different interpretations of the world. And, you know, but but to rise to the level of defamation is something different.

LL: No. So if I said that you support terrorism because you don't support Boston bomber being executed, that would be false. You know, maybe you have another article where you say terrorism is great, or, you know, maybe we could have a similar thing where you used to say terrorism was great. And then you want to say that because you used to, I could say you do now. But my point is from that fact, you can't say that you support terrorism. And if you do, knowing the defamatory punch of that, then that's just false and defamatory. From your standard, from your perspective, you know, there's nothing that's defamatory. There's nothing that could that could cross this line. Because it's always possible with language-

MM: That's not, that's not true. Right? I mean-

LL: okay, give me an example.

MM: So, I mean, there are things that you could say in terms of, you know, if you were to say that so-and-so committed a specific crime that they did not commit, right, you know, if there's a direct claim of action, or, you know, so-and-so, you know, it's, it's-

LL: Okay great, but but I mean, even that, under the argument that they're offering, let's say the headline was, Mike, right, Mike, ran somebody over in his car, and then the article went on to say, it would be an extraordinary thing if in fact, that's what Mike did, because then everybody would think he's a careless, reckless driver. But obviously, this is not the sort of thing that Mike would do. Okay, from the standard that they're defending, that's not defamatory. Now, the question is, if they take that article with that headline, and they put it on on Twitter, and the headline is Mike ran somebody over in the car. Would you consider that defamatory?

MM: I mean, you have to see that these are not analogous situations, right?

LL: Maybe we can argue about whether they're analogous, but I'm asking a specific question. Do you think in the internet age, if they put that title on an article and they tweeted it and put it in Facebook, would that, would that be defamatory?

MM: Again, honestly-

LL: It's not hard to answer that question-

MM: But it is, it is-

LL: Do you think that's defamatory?

MM: And this is the nature of defamation, right? I mean, context. It's all context-dependent on a whole bunch of different things.

LL: Okay, then you just established what I said, that you don't believe anything is defamation. Because you said to me, it would be defamatory if somebody alleged a specific fact-

MM: No, but defamation also depends on context, right? And so you're creating a scenario where the context is not clear. And there there could be situations in which that is defamatory. And there could be situations in which it's not. And the question is, what is the framing? What is the overall piece about? You know, and how, I mean...

LL: Really, this is hard, Mike? I can't believe this is hard. Yeah. They say that you ran somebody over in a car and a headline that they put out on Twitter. The fact that in the article, on the website, they explained that's not actually what you did. Why is that hard to say that's defamatory? That's false. You said it. You said if it was a specific thing alleged, and it was not true, then that would be defamatory. Why can't you give me even this?

MM: But because as you well know-

LL: Would you lose your reporter card or-

MM: Within defamation law, there's all different things. Is it, you know, is it rhetorical hyperbole? Is it, you know, do people, depending on the source, are people always going to take it seriously as if it is hard and fast and fact. And, and so, I mean, there are a whole bunch of different things and I'm arguing that, you know, the context matters. And I don't think that that you've proved your case and, and what worries me about it even more to the point is that as, as principled and and as you know, I know, I because I know you and I've, you know, and, and you and I have spoken in the past and I have supported you in the past and I followed everything and I've read probably almost everything that you've ever written. You know, I know that you're coming at this from a good place. Okay. But a big part of my concern is you, this argument that you're making does, in my mind, very much stretch the boundaries of defamation, and it stretches it in a way that we will be abused. The way the defamation law is already being used, it is abused frequently and constantly. And you are creating a fairly large, you know, boundary expansion, and you can disagree with that, but I think I think you are, and I think a lot of the arguments to be made about how the internet works and about tweets and, and framing of things like that. This will be, if you succeed, this will be abused by many, many people, usually powerful people against very, you know, un-powerful journalists who are trying to get information out there.

LL: Okay. So, you know, I understand that concern. But again, I think we have to think about the internet and how the context of the internet matters to this story. You know, many people when Mark Zuckerberg said that Facebook was not going to take down false ads, false political ads, said that's outrageous, like if you're informed that you've got a false political ad you should take it down. And everything Zuckerberg said is basically what you've been saying. Zuckerberg defends the idea that they should publish falsity, because that's context. It's, you know, blah-blah-blah and if you want to respond, then buy ads and respond to it. So you should recognize that this is not just a fight in this corner of defamation law, it's a fight about how do we make sure that this platform does not get weaponized in a certain way. Now, what I'm saying is in the context of clickbait, which I think we agree is a new economic incentive, driven, weaponized by technologies like Chartbeat that make it trivially easy to see how what you're doing is reaching and tw- and triggering people to click. There needs to be pressure on the other side. And so if the world evolved to a standard, which was, if you get noticed, that the headline that you've published that's being tweeted and put on Facebook is false and defamatory, then fix it. And if you don't fix it, then you bear responsibility for it. Why would that be a terrible thing?

MM: As someone who is the recipient of many, many threat letters from various lawyers claiming that articles in which I criticize people or argue against things that they have said, and I'm constantly being told that they're defamatory, and that I am risking a lawsuit if it keeps going on, that would create a massive chilling effect. It would enable all sorts of bad actors. It would-

LL: It's a different, it's a different point right? Because you're talking about your articles. And I'm totally with you on the articles. Somebody's reading into your article and they're reading the article and you know, they take something out of context and they claim that you're being defamatory in the article, then, you know, I think the traditional way we think about defamation makes sense because you've got the article there. My point is about titles separated from an article. And so the question is, what is the, what is the mechanism we've got right now to make sure that those titles separated from an article are not defamatory?

MM: And then that gets to another sort of core aspect of journalism, like title writing is an art form. And it's a difficult one. And and as someone who's written, you know, over 50,000 titles at this point, like, it is one of the most difficult things to do, because you are trying to convey in, you know, very, very few words, a larger point that will get people interested in reading the article and, you know, there there are arguments about, you know, whether or not they are clickbait or whether or not is just like, getting the point across in a way that will attract an audience or, or what, you know, and I have, you know, this is a tangential discussion, I dislike the phrase clickbait because I think it's potentially misleading for a variety of reasons and I think the incentives structure- I mean, it depends different media organizations have different incentives, but the idea that that reporters especially for say the New York Times are focused solely on you know, how much traffic a particular article is going to get versus just trying to get ideas out there and have them read is a different issue. But, you know, the, I've now I've lost my train of thought -

LL: Well, you were talking about clickbait. Yeah, I mean, I don't mean clickbait, again, I don't mean clickbait to be disparaging. I think it is the mechanism of journalism today in a world where you've got to grab people-

MM: But it, it is in some cases, and it's not in other cases, and I think you lump in all the cases as if it is one, but, but sorry, I now have recalled where I was going with that, which was that, you know, headline writing is incredibly difficult because, you know, the reason you have a story that is, you know, however many hundreds or thousands of words is because you're trying to convey a lot of different points. Putting a headline on that is a very, very difficult thing, it's one that that, you know, 50,000 headlines in struggle with all the time it is, you know, very common that I am, you know, sitting here with my colleagues discussing headlines. How do we get the relevant points into a headline, and how do we make it so that is, you know, it actually catches people's interest- not for clickbait reasons, but because we hope they will read the article. And, and that's a challenge and, and especially on very complex issues, those are the worst. It's, it is next to impossible to get the complexity and nuance into a headline, you know, I, there are times where I've, you know, been tempted to write a headline that's basically like, you know, this is too complex and too crazy to put into a headline, read the story, you know. But like, you know, the complaint from your end is basically that the New York Times was unable to get the nuance that you wanted into the headline

LL: No, no That's not my complaint. My complaint-

MM: But that's what it boils down to, at least from my view, that's what-

LL: I get, I get that this is the way you're framing it. But that's not what I would complain of. I'm complaining because the headline is false. And so I agree, it's hard to write headlines. And that was, in fact, my email to them, like try to, you know, playfully suggesting that it was difficult to write this headline and they got it wrong. But the response to that should have been okay, we'll take the we'll take what is perceived to be the defamatory content out. I mean, you make a lot about this fact that people read my article, and had the impression that might be suggested in the headline. I'll suggest that many people read the headline, and had the impression that I was defending, today, Jeffrey Epstein, or, or Jeffrey Epstein- taking money from Jeffrey Epstein. So that impression, that false impression, that false and defamatory impression, was created by the headline. And all I'm saying is, if you're writing headlines, I agree it's difficult. But if you're writing headlines and your flagged this is false and defamatory, it's trivially easy to fix. And if you don't fix it, then-

MM: If they agree, if they agree. The problem is they don't agree. Right? This is what it comes down to. They don't think it was false and defamatory,

LL: Well, you know, you're right. They don't. But let's just flag again, really important point, their reasons for disagreeing are very different from the discussion we've just had.

MM: Sure, but I'm not, I'm not here to defend the New York Times.

LL: Okay. But my point is, then, you know, let's understand that to the extent they believe, or they say they believe that it's not defamatory, the claim is about reading the headline in the context of the whole article. And so as a conceptual matter, you know, I thought this was kind of easy for you, but you wouldn't accept the framing, but as a conceptual matter, the first most important thing to say is in the internet age, when the headlines live separate from the articles, and when not everybody who sees the headline can even read the article, should there be a concern if the headlines are defamatory? Not if they're just misleading, I mean, you know, I wrote an article 10 years ago in the New Republic, the title of the article was against transparency. That was plain clickbait. Because people saw Lessig writing an article against transparency? They're like clicking on it, and they're trying to read what the hell, how can you say that? And all sorts of people yelled at me because I was against transparency. And of course, my piece is not against transparency, but it's designed to draw people in. So that's a sense of which I'm defending clickbait and, and, you know, people said, you should change that headline, or they should change that title, and the New Republic got letters to say change that title, and they didn't, and they didn't have to, in my view, because nobody was hurt by it. But Were you hurt someone, in a really visceral way, because I can tell you, it really disrupts my ability to do my job to create an environment where women in my classroom and some boys, you know, some kids who are as boys abused in my classroom, can't see me or hear me, because they think I defend Jeffrey Epstein. That's a big problem that they should have fixed.

MM: And I, I understand where you're coming from on that. And I understand, you know, how that headline could, could, you know, upset you and cause, cause problems for you. The question is whether or not that, that rises to the level of defamation, and whether or not is appropriate to then take them to court over it.

LL: Okay. I agree. Those are two important questions. But again, why isn't there also the question, whether it wasn't incumbent on them to correct it? Not because they mean, even, you said it's not defamation. You know, okay, fine, even if you don't think it's defamation, recognizing the harm that that misimpression creates, why isn't part of this conversation: what the hell New York Times, why didn't you fix that?

MM: Yeah, I mean, that's fair. I, like I, as I say, I agree. I agree that it was misleading. I think it was bad reporting. And and I think they should fix it. But, you know, just because I think something is bad reporting or that, or that it's misleading, you know, I think there's a different line when it comes to, you know, actually taking them to court.

LL: There, that's fine. That's fair. I mean, you know, because, I mean, we could either argue with the line could either be the question, is it defamation or not? We've had that conversation. I appreciate the way you've helped frame it. And then there's also a question, even if it's defamation, should you take it to court? Because part of what you were saying is no, you should just write a piece on Medium and and the world will come to understand the truth. That's another thing we could argue about. But the point that I think is really important and seems to be missed in so much of this kind of screaming at me for defamation action, is that there is an additional question, which is why when you know you are hurting someone, harming someone, causing damage to someone, because even accepting your framing of your misleading title, you don't think it's incumbent upon you to fix it. That, that's a question that I think we need to ask more.

MM: Well, yeah, I mean, and it's fair to ask that question, and it's fair to think about that. I still worry about that framing. There are plenty of factual headlines and accurate headlines that cause harm to people. Right?

LL: Yeah, right. So you know, Jeffrey Epstein is a pedophile. There's a headline, causes harm to Jeffrey Epstein. That's fair. I don't think anybody has the obligation to change it. But you you made an important point here. You know, whether you wanted to call it false or not, you did say it was misleading.

MM: Yes.

LL: Is New York Times' business to be, to publish misleading headlines that harm people? I mean, would they would they say, this is what we're here for? We're gonna, we're trying to, you know, maybe if they were partisan paper and they were trying to harm, you know, Donald Trump. Okay, I get that. But that's not what the Times is. That's not why we look up to the Times. So again, if it's misleading, I think it's defamatory, but if even if it's just misleading, the internet age response here should be okay, fix it, fix it.

MM: Right. Again, but that depends on on whether or not they they believe it's misleading as well. And, and as a journalism organization, right, you're not their editor.

LL: Yeah, but, they don't get to decide what truth is.

MM: That, that's right. But but they do get to decide what their interpretation is.

LL: And if their interpretation is false, then their - this is an important point - if their interpretation is wrong about whether it's misleading or not, then it's entitled to the criticism. You know, I would say that, you know, it's entitled to be criticized by you, 'cause you have just said exactly that, right?

MM: Yeah. And I don't deny that and as I said, I mean, I think we disagree I, you know, I, I certainly, I criticize the New York Times all the time, I probably hold it in less regard than you do. I do think it is, you know, on the whole a good paper, but I've had lots of problems with the New York Times and their reporting over the years on a variety of different subjects that I think are misleadingly presented. But I don't think that that rises to defamation. And so, you know, at this point, we've been talking about this for over an hour and some of it is going around in circles and and, you know, I could keep talking about it. But, you know, I kind of feel like I can, I'll give you the last word on this and let you finish your thoughts and we'll send it out there into the public and, and see what, see what they think.

LL: I appreciate it. Mike, I don't have last words really about the substance. I just, you know, last words of gratitude. Because, you know, it takes time to unpack and understand things and I in my, you know, most recent book have extolled the virtues of these podcasts as a place where good democracy can happen, slow democracy movement happens here. And so it's, I understand a lot more about the issue because I've spoken to you about it. But I hope that understanding about especially the particular harm that has been caused here and continues because they refuse to respond, it's also been made more understandable.

MM: Yeah, and I think I understand your position much more clearly. And I understand your thinking, and I understand the the reasoning behind what you're doing more. I still will say I disagree with it and I think that it is, you know, has the potential to cause damage, but I, but I certainly appreciate you taking the time and explaining it clearly and, and going through this exercise and, and and trying very, very diligently to you know, get me to see your, your side of it. And I appreciate that.

LL: Okay. Thanks very much.

MM: All right. Thank you. And thanks to everyone for listening as well.

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Comments on “Techdirt Podcast Episode 238: Larry Lessig Defends His 'Clickbait Defamation' Lawsuit”

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Thad (profile) says:

I can’t say that my opinion’s changed either, but I appreciate Lessig taking the time to articulate his reasoning. He makes interesting points as always, even if I ultimately don’t find them convincing here.

The transcript is an interesting experiment and I wouldn’t mind seeing it as a regular component of the podcast posts. There are places where it definitely doesn’t flow very well and is difficult to read; it’s no substitute for the audio — but I think it’s valuable for people who can’t listen to the audio.

This comment has been deemed insightful by the community.
Qwertygiy says:


I can’t say that my opinion’s changed either, but I appreciate Lessig taking the time to articulate his reasoning. He makes interesting points as always, even if I ultimately don’t find them convincing here.

And this, my friends, is the true meaning of "debate." It is not merely presenting your point of view and refuting any dissent with it. It is presenting your point of view and then listening to the other side present theirs, and comparing their logic and conclusions to your own.

A good debate does not necessarily have a winner; the goal is not to convince your opponent that they are wrong, but to understand why your opponent disagrees with you. If the answer is "ignorance," perhaps they will change their mind as a result of new information. If the answer is "stupidity" or "stubbornness", now you know that in the future, there are many things you can spend your time on which will be more worthwhile than trying to debate with them.

And if the answer is anything else, you have gained knowledge about them and their point of view which can be valuable to understanding and working with them in any number of ways, such as in finding a different solution which benefits both sides.

Christenson says:

Re: Typo monster!

if they understand me to be that sort person….
if they understand me to be that sort [of] person.

and I’m out of time, I bet there are more.

Lessig makes an interesting point, how the NYT divorces its headlines from the context of the article… and then they off and re-tweet it but the article is paywalled.

So silly question, you are Jack Dorsey… what’s your moderation decision??? lol

This comment has been flagged by the community. Click here to show it.

Federico (profile) says:

Lessig wins the day

I’m sorry but Lessig wins this debate, because Mike wasn’t able to agree to a single example of bad headline being defamatory. Which is fine, if you argue there shouldn’t be any law against defamation; but Mike is not (explicitly) arguing that.

So, tomorrow the NYT publishes an article with headline "Mike Masnick’s Car Plows Into Childs, Killing 2 and Injuring 3" (example). The headline is repeated all over the place: frontpage, Twitter, RSS feeds, email newsletters, every social media under the sun. The first paragraph describes the brutal accident. The second paragraph says, well actually, the children were a bunch of childish trolls on his websites, and by driving over them we mean he ruthlessly debunked their posts and left them utterly demolished.

All fine then? Come on Mike, give us a single example of something you would agree is and should be sanctioned as defamatory. (Real world example from court cases allowed.) Otherwise your argument is not very credible.

That said, I do think that Lessig’s lawsuit is extremely unlikely end up well. It will certainly drag on for a while and attract more attention to headlines which otherwise could be forgotten sooner or later (maybe in 1 year, maybe in 20). If Lessig loses, then ok, we know the NYT is free to have the most misleading headlines one can possibly imagine. If Lessig wins, out of thousands or millions of lawsuits and legal blackmail letters which will ensure, trying to emulate him, what percentage will be from good people? More or less than 0.001 %?

Vermont IP Lawyer (profile) says:

A very tough call

I have enormous respect for both Mike and Professor Lessig. They are both advocating in good faith for plausible positions so I struggle to take sides one way or the other. To try and make up my mind, I went back to the NYTimes article I am struck by the way Professor words his argument differently at two places in the article. At one point, he says:

That has no relation to what I wrote. Because here’s what I wrote: “When it was discovered, it would do real and substantial pain to the people within the Media Lab who would come to see that they were supported in part by the gift of a pedophile. That pain is real and visceral and substantial.” People who actually have suffered at the hands of pedophiles absolutely have a right to be outraged to know that their institution has been supported by a pedophile.

The "doubles down" implication of the headline is inconsistent with that statement and, if that was all we had, I would side with Professor Lessig. However, look at the very last sentence of the article, where Professor Lessig is quoted this way:

All I’m trying to suggest is this: that the suggestion of the Ronan Farrows of the world that somehow there’s something terrible about the anonymity — no! If you’re going to take the money, you damn well better make it anonymous.

That quotation, if accurate, is consistent with the headline–it is Professor Lessig expressing his position in the present tense. I think the presence of that concluding quotation (assuming it is acurate), persuades me of the merit of Mike’s side of the argument.

But, again, it is a close call. The world–and this debate–is a better place with both these people participating.

Anonymous Coward says:

Re: A very tough call

The second quotation you cite from the NYT article, does not appear in the original medium quote.

I think that the core of LL’s argument is interesting. Because of paywalling, many people can be exposed to the headline and lead but do not have access to the article. This is a new behaviour and calls for a reexamination of defamation in which normally the entire article is taken into account. The question is should the article be excluded in cases where the article is paywalled? (Yes, its easy to get around the paywall, but that requires some effort that many will not make).

I think its an interesting question. I side with LL on this one. It should only apply when paywalling is in place and the headline and lead are false and contain attacks on the character of an individual.

Vermont IP Lawyer (profile) says:

A very tough call

Anonymous Coward: I do not understand the significance of the first sentence of your post (beginning "The second quotation you cite … ."). I would like to understand and hope you will clarify.

I see that, as you correctly state, the quotation from Professor Lessig at the very end of the NYTimes article does not appear in the Medium article. The Medium article is very carefully worded with a nuanced and sophisticated articulation of LL’s argument. If some third party had published an article with the NYTimes headline attached to the content in the Medium article, it would be easy to see the fundamental inconsistency between the headline and the article.

However, that is not the argument raised by LL’s defamnation suit. The suit grounds its argument on an inconsistency between the headline of the NYTimes article and the body of the article. I don’t know whether I agree that defamation law should include the "clickbait" doctrine–I worry, as I gather MM worries, that defamation law thus adjusted would be weaponized to limit desirable free speech.

But whatever is the proper balance on that question, LL’s specific lawsuit is against the NYTimes based on the actual headline and actual body text. In that specific situation, it is much harder to make LL’s argument. In that specific situation, the headline is consistent with at least one quotation from LL in the body of the article (which I’ll assume for the moment to be accurate). Now one can argue that the import of the closing quotation is being used out of context in the headline but the closing quotation is on the same side of the paywall as the rest of the article so the argument that there is a fundamental inconsistency between the headline and the article is weakened.

CrushU (profile) says:

Unconvinced - Have to Overrule Precedent

While I do believe the headline and lede in this case are definitely non-factual, the argument about whether it falls into opinion or not is one that can be had. However, even if it is non-factual and presented as if it were a statement of fact, not opinion, it doesn’t rise to the level of Defamation.

For me, the existing precedent of headlines not being valid for defamation is enough to side with the NYT. Surely we’ve had people only reading headlines in the past, and headlines have spread far and wide in the past, without people reading the full article. Yet defamation still requires us to consider the entire article. I believe this is only precedent and not written into the law itself, but I’m not sure on that point.

After all, newsies used to shout headlines from street corners. If that isn’t defamatory, I cannot believe that printing headlines in search engines is defamatory.

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