Lessig Withdraws 'Clickbait Defamation' Lawsuit Against NY Times After Changed Headline
from the still-a-bad-lawsuit dept
You may recall that earlier this year, I heavily criticized Larry Lessig’s defamation lawsuit against the NY Times, which I believe is a quintessential SLAPP suit. The NY Times presented a Medium post that Lessig had written about the Jeffrey Epstein/MIT Media Lab situation in a way which he felt unfairly presented what he had said. As Larry and I discussed in a long and frustrating podcast, Larry believed that NY Times’ characterization of what he said was “false and defamatory” and that it was done for clickbait reasons — while I believe it was that Lessig himself failed to clearly explain his ideas, and that led many people to believe he was arguing something he was not. Lessig, clearly, disagrees. While I agreed that the NY Times (and many others) failed to understand the nuance of Lessig’s arguments, you don’t get to sue someone for misunderstanding your poorly made arguments.
Either way, for reasons that are not entirely clear, on April 2nd, the NY Times finally changed the headline and lede to the story and added a correction. The original headline had read:
A Harvard Professor Doubles Down: If You Take Epstein’s Money, Do It in Secret
To what it now says:
What Are the Ethics of Taking Tainted Funds?
The lede has also changed from:
It is hard to defend soliciting donations from the convicted sex offender Jeffrey Epstein. But Lawrence Lessig, a Harvard Law professor, has been trying.
It is hard to defend a university official who anonymously accepted donations from the convicted sex offender Jeffrey Epstein. But Lawrence Lessig, a Harvard Law professor, has been trying, even though he wishes universities had never taken the money.
And it added a correction:
Editors’ Note: April 2, 2020
An earlier version of this article referred imprecisely in the lead paragraph to the views of Professor Lawrence Lessig. The lead has been edited to reflect that while Mr. Lessig defended Joi Ito, who had accepted anonymous donations from Jeffrey Epstein, he said he would prefer that institutions not accept such money. The headline has also been changed, and this version of the article now has the same headline as in the print edition of the Times.
Lessig highlighted this change last week, but then doubled down on his claim that the title was chosen solely for “clickbait” reasons, given that the new title is what appeared in the print edition:
The difference between the two ? beyond one being true and the other false ? is obvious: click-ability. The original online headline is written to invite clicks. It is written to be shared in social media, and from that sharing, written to drive traffic to the New York Times. The print edition headline is just true.
It?s for that reason that we framed this case as a case about ?clickbait defamation.? No doubt, there?s nothing inherently wrong with clickbait. And no doubt, given the economy of journalism, it is not going anywhere anytime soon. But the challenge now is when the clickable titles become defamatory: What procedure or check does the paper put in place then?
Then, on Monday, Lessig announced that he had agreed to withdraw the lawsuit because of this change. It’s not a settlement and it wasn’t negotiated. The NY Times made this change, and Lessig felt that there was little reason to continue the (expensive) lawsuit.
To be clear: I think that the NY Times did the right thing here, eventually. The original headline was misleading, but it was never defamatory as Lessig claims. It tried, badly, to summarize a complex and nuanced issue which Lessig himself presented poorly. Yes, the NY Times did a bad job of it, but the number of people who have found that news organizations cannot fit all the nuance they want conveyed into a headline is the list of almost anyone ever covered in a news story. Bad summaries of nuanced issues happen. They’re not defamatory. Yes, the NY Times should have clarified this earlier, but the lawsuit was still a problem.
Lessig, however, is continuing to defend the legal strategy:
I?m a lawyer. I believe in the law. I make lawyers for a living. And I think the law is also threatened and vulnerable and essential (not for all, but for those who need it most). Yet when I hear about a lawyer being sued for screwing up someone?s case, I don?t take it personally. Indeed, I think such suits are a good thing?if they make lawyers work better. Even without a strong and constitutionally grounded principle of immunity?like the principle crafted for journalists by the Supreme Court in New York Times v. Sullivan (1964), that makes it extremely difficult for ?public figures? to sue for defamation?I think such lawsuits can make the law work better. And I am generally against doctrines of law that immunize bad acts by even good people. I think the immunity granted to judges (practically absolute) is unjustified, as is much of the immunity secured to the police and other state actors. In general, it is my view that responsibility makes institutions responsible, and that if anything, we need more responsibility today, not less.
To be honest, I believe that this paragraph, by Lessig, misrepresents most of the media’s support of NYT v. Sullivan. Indeed, I’d say he misrepresents it as badly as the NY Times’ misrepresented his argument about Joi Ito. NYT v. Sullivan is not about “immunizing bad acts by good people.” That’s a complete misrepresentation of the law. It is about making sure that the the 1st Amendment means something, and that different interpretations or summaries of statements are not silenced. Indeed, the whole point is not to create chilling effects from powerful public figures, to force news organizations, like the NY Times, to only cover what they say in exactly the way they approve.
That’s especially necessary in today’s day and age when we have powerful politicians — like President Trump and Rep. Nunes — regularly making use of defamation laws to try to sue newspapers over coverage they dislike. That’s not — as Lessig insists — about “making the law work better.” They’re about chilling reporters from reporting what they see and hear that reflect negatively on the public figure.
Indeed, Lessig’s view of the usefulness of lawsuits ignores, almost entirely, how abusive and ruinous they can be to the individuals sued. It may be fun for a law professor to try to make points with lawsuits, but it ignores that real people are dragged into these lawsuits in a manner that is not just disruptive to their daily lives, but potentially ruinous. To make a point about clickbait? Lessig does allude to this point later in his post, but then immediately brushes it aside:
Lawsuits by powerful people are designed to intimidate. They?re intended to raise the cost on criticism. And no doubt?as astonishing as it is to recognize this, almost 230 years after America ensconced the First Amendment in its Constitution?our President uses lawsuits for precisely this reason.
But if I have any friends left in journalism, please see this: sometimes you give us no choice. Whether intended (initially) or not, sometimes we?re put in a place we cannot survive. And when there, whatever it costs, we have to fight to escape.
And while it is true that there can be some cases where people are given no choice, this was not one of those. The idea that Lessig “could not survive” because of a misleading headline is difficult to take seriously. He went into depth on that argument in the podcast we did, and summarizes it in his latest post as well:
As a teacher, to be rendered as someone so oblivious to the harm that the Epsteins of the world impose is devastating to the work I do. Which means that if I wanted to continue that work, I needed at least the ability to say that this lie is a lie, and that I have done whatever I can to correct it.
He can say a lie is a lie, and he can (and did) make very public arguments for why the NY Times should change it. He did not need to sue. He did not need to drag people into court to make that point.
So, yes, I’m happy that the NY Times did change the headline and the lede. I still think Lessig’s course of action was wrong, and I still see little recognition on his part of why this approach was so dangerous to free speech, and so enabling to those powerful figures who wish to create chilling effects and to shape press coverage to only present stories in the way they want them presented. To me, it remains a stain on Lessig’s long, and otherwise, incredibly influential career.