Dear Larry Lessig: Please Don't File SLAPP Suits

from the what-a-disaster dept

Anyone who reads Techdirt knows that I've been heavily influenced by Larry Lessig, and have learned a lot from him. There still are many areas where I have and continue to disagree with him, but on the whole, when he comes up with a project, or writes about something, I am compelled to listen to him. I often appreciate his willingness to effectively take on big, crazy, impossible challenges -- ones almost certainly destined to fail -- in support of a principle or an idea. In recent years, this has included his ill-suited campaign for President, his flopped attempt to create an anti-SuperPAC SuperPAC, his plan to change the way the Electoral College works, his attempt to call for a Second Constitutional Convention (to route around Congress to amend the Constitution), and, even (tragically) his attempts to use the courts to end copyright term extensions. Even when I thought the ideas were a bit silly, the very least you could say about Lessig was that he was willing to take crazy chances to make changes in the world that he thought would improve the world. You could say that he was the living embodiment of the idea that, rather than complaining about the system, you need to make a real effort to change the system, no matter how quixotic that effort might be.

And, even when I disagreed with him or thought his projects to be misguided or silly, I still supported his willingness to put his best ideas out there and try to come up with clever ways to make them a reality. Indeed, I found much of it to be admirable and principled.

However, I cannot and will not support his latest crusade, which is a dangerous attack on free speech, and frankly goes against everything that I thought Lessig stood for. Indeed, to me this move undermines much of Lessig's legacy, and forces me to rethink my past support for him and his projects. The short version is that Lessig has filed a defamation lawsuit against the NY Times, its executive Editor Dean Baquet, its Business Editor Ellen Pollock, and reporter Nellie Bowles. Lessig is upset about the way some blog posts he made were portrayed by the NY Times. And you can, perhaps, understand why. The NY Times' framing of Lessig's positions, regarding Jeffrey Epstein and his funding of MIT's Media Lab, was, at the very least, shaded in a manner that did not portray the nuance that Lessig hoped to convey in his Medium posts on the matter. But not fully portraying the nuance is not defamation.

Furthermore, Lessig appears to be using this to kick off much more of a campaign against free speech and a free press, by saying this is his attack on what he calls "clickbait defamation." This is, unfortunately, the same sort of framing that lots of people have been using to go after journalists of late, when they don't like the framing or how they're portrayed in the media. In short, Larry Lessig appears to have filed a SLAPP suit. And that's tremendously disappointing.

Let's take a step back. Lessig was tangentially associated with the mess last fall regarding Jeffrey Epstein's donations to the MIT Media Lab, which was run by Joi Ito. Reports detailed how Ito cultivated a relationship with Epstein, and then later sought to hide it from various people -- including those associated with the Lab. Ito has long been considered one of the "good" people in the tech world, and this situation upset many people who were shocked to find Ito's involvement, and his ethically dubious decisions. Ito, after immense public pressure, resigned from the Lab.

Lessig, who has known Ito for many years, had signed a petition in support of Ito prior to all of the details coming out and prior to his resignation. This raised some eyebrows among those who felt that Ito's decisions had clearly crossed a line. After Ito resigned, Lessig -- as he's been known to do -- took to Medium to effectively work through his thoughts on the matter. He revealed that Ito had sought his advice before taking the Epstein investment. Lessig, who has publicly discussed how he was sexually abused as a child, had acted as something of a sounding board for Ito on whether or not it was inappropriate to take money from someone accused of similar crimes. It was clear that Lessig had extremely mixed feelings about the whole thing and was trying to "write through" his thoughts. While I can see -- and sometimes support -- the idea of writing out ideas where you're unsure of where to eventually land, doing so almost always risks people taking some of the statements (especially "on the one hand, on the other hand" or "here's how I thought about it back then..." statements) completely out of context.

Without getting into the full text of Lessig's piece (though I recommend reading it), many, many people (including many supporters of Lessig) reacted very, very negatively to it. For what it's worth, my own reaction was that, in it, Lessig appeared somewhat tone deaf to the actual concerns with accepting the donations, and made a bunch of assumptions that weren't necessarily accurate -- but again, giving him the benefit of the doubt, I found it interesting that he was really clearly trying to struggle through the conflicting feelings he had about the whole mess. In particular, I actually appreciated that Lessig did what few people are willing to do: to try to break down exactly his mindset in making a decision that -- in hindsight -- he now recognized was a mistake. And thus, part of his essay could be read as a "defense" of the original decision to support Epstein's donation to MIT's Media Lab.

And that quite reasonably upset people, though, for sometimes different reasons. Some were upset that they believe he was rationalizing his support for Ito taking Epstein's money. Some were upset that they read this (perhaps inaccurately) as a defense of Ito taking the money. And some were upset that his attempt to put himself back in that original mindset suggested that, even at the time, his thinking on this was... not great. Particularly troublesome (to me, at least) was his assumption of why he felt that Epstein wanted to donate to MIT (Lessig suggested it was an attempt to rehabilitate his image) and why, at the time of the initial donation, he thought it might be okay for MIT to take it: if they did it in a way that did not allow him to burnish his reputation.

Specifically, Lessig suggested that Epstein was what he referred to as a "Type 3" donor, who he described as:

Type 3 is people who are criminals, but whose wealth does not derive from their crime. This is Epstein, but not just Epstein. It may be that we’ll discover that Epstein got rich by blackmailing people whom he had encouraged or enabled to commit abuse. I doubt it, but it’s possible. Suffice it that when Joi was investigating whether that criminal continued his crime, no one was suggesting that his enormous wealth was the product of blackmail or sex slavery. He was, the world assumed, a brilliant, savant-like investor, who was also a sexual predator.

He then noted that if a university were to take such money, it should not be used to "forgive" the donor:

I think that universities should not be the launderers of reputation. I think that they should not accept blood money. Or more precisely, I believe that if they are going to accept blood money (type 4) or the money from people convicted of a crime (type 3), they should only ever accept that money anonymously.

And, later, he specifically said: "IF you are going to take type 3 money, then you should only take it anonymously."

There actually is an interesting question buried in all of this, which Lessig sort of mentions in passing, but never explores that in-depthly. If a "bad" person makes a ton of money, what should happen to all that money? Is it effectively tainted forever? Could no one accept the money from that person and use it for good and the advancement of good? That's... a big philosophical question, and Lessig hints at it, but doesn't go too deep on it.

Still, the larger point behind Lessig's essay was that this level of thinking -- where his mind was back when he had supported Ito's decision -- was clearly wrong. And he was trying to understand why it was wrong and why he had made that mistake. Later in the essay he makes this explicit:

But what I — and Joi—missed then was the great risk of great harm that this gift would create. Sure, it wasn’t blood money, and sure, because anonymous, the gift wasn’t used to burnish Epstein’s reputation. But the gift was a ticking time bomb. At some point, it was destined to be discovered. And 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 and not taken seriously enough. And every bit of emotion and outrage from victims that I have seen in this episode is, in my view, completely justified by the completely predictable consequence of that discovery.

Either way, the NY Times published an article by reporter Nellie Bowles, entitled: A Harvard Professor Doubles Down: If You Take Epstein's Money, Do It in Secret. So, does that misrepresent the larger point of Lessig's piece? Absolutely. But does he say that? Well, yes, he does. And, while I've had many, many concerns about the way in which I believe the NY Times often does a terrible job misrepresenting things -- and have even called out what I believe is sloppy reporting on the part of Bowles -- to argue that this particular framing is defamatory... is very problematic.

But that is what Lessig has done. He argues that this is "clickbait defamation." He argues that the headline and the lede (the opening text beneath the headline) are misleading, and designed to draw people in by being misleading. Lessig is going even further than just filing a lawsuit. He's created an entire website called "ClickbaitDefamation.org" and started a podcast about the issue (which he claims will go beyond just his own lawsuit).

But, there are significant problems with this:

  1. This is legally preposterous.
  2. This will cause real harms for those he sued.
  3. This creates a massive chilling effect on a free press.
  4. If, somehow, he succeeds, it will open the floodgates for more abusive lawsuits
As for it being legally preposterous, lawyer Ken "Popehat" White has explained that while Lessig's complaint is basically just with the headline and lede of the story, defamation law requires that the court judge the entirety of the context within which the statement is made. You don't get to cherry pick. Indeed, it's somewhat ironic that part of the complaint here by Lessig (and in similarly questionable defamation lawsuits) is the argument that the press "cherry picked" a statement, and didn't give the full context. Yet, that's what Lessig himself is doing in arguing that just the headline and the lede are what is defamatory.

Because if you look at the whole of the article, it does provide the nuance. Joshua Benton from the Nieman Lab did a nice job breaking down how everything that Lessig claims is somehow defamatory, are actually things he said. It may be true that Lessig doesn't like how the headline portrayed his position, but nothing they said is defamatory.

John Roddy makes an interesting point that perhaps one could argue that the fact that the article itself (but not the headline and lede) are behind a (fairly porous) paywall could somehow change the calculus, but that seems unlikely to fly in any court.

Either way, the entire crux of Lessig's lawsuit is about splitting hairs. The NY Times headline and lede suggest that Lessig was "defending" MIT soliciting and accepting donations from Epstein, when what he was more doing was trying to understand why he did support the idea years back -- and then explaining why he was wrong. But, that doesn't change the fact that many, many people certainly read Lessig's piece as a defense of the Epstein donations. The fact that many people misunderstood is also why Lessig later added an addendum and tried to clarify. Yet, now he's suing the NY Times, its reporter and two editors, because they may have misunderstood it in the same way lots of people did.

Larry, if so many people misunderstood your intent with the article, perhaps the problem was with how you wrote it. You don't get to sue over that.

What troubles me, though, is that of all the people out there, Larry Lessig should know more than others how much pain and pressure a lawsuit can cause people. You could argue that it's one thing to just sue the NY Times, but he added individuals as well. Now, it's quite likely that the NY Times and its more than capable lawyers will handle the legal work for each of the individual defendants, but it will still create a massive headache in terms of time, energy, and attention that must be put forth.

In addition, merely by suing, Larry Lessig is creating a chilling effect. I've spent nearly a whole freaking day writing this article, and I'm trying to choose each word -- especially in my description of what Lessig wrote -- extra damn carefully, because he has now shown, that if he doesn't necessarily agree with your take, and thinks that you're engaging in "clickbait," that he can or should sue for defamation. I'm kind of shocked, because the last thing I ever expected is that I would feel intimidated and chilled by Larry Lessig. And, yet, here we are.

And, should Lessig somehow (miraculously) win, this will set off a ton of bogus, chill-inducing SLAPP suits. As someone who has written literally tens of thousands of headlines, it is impossible to include all relevant and salient points in a headline. It is impossible to include all nuance in the headline. Headlines are supposed to show the interesting bits. Yes, you can argue that clickbait is a bad practice, but highlighting a key point in a headline and then including the relevance and nuance elsewhere is part of journalism. Saying that every headline must include all nuance is literally impossible. Even worse, it would open up the floodgates for all sorts of crackpot SLAPP suits.

The fact that he has set up a dedicated website and a podcast about "Clickbait Defamation" makes me worry that this may be one of his latest crusades: to "open up our libel laws" and expand the definition of defamation to include the idea that a headline and lede, that don't show all facts or all nuance, open you up to a defamation claim. And that would create a massive chilling effect on the press.

Larry: don't let this be your legacy.

And while I can understand why Lessig -- a resident of Massachusetts -- sued in Massachusetts, I will note (as I know all too well and all too personally) that Massachusetts has an incredibly weak anti-SLAPP law that only applies to speech petitioning the government. Massachusetts needs to pass an updated anti-SLAPP law that stops these kinds of suits (and the federal government should pass one as well, to guarantee that anti-SLAPP laws apply in federal court as well). But, the real shame here is that someone I have looked up to and been inspired by in the past, is now filing a lawsuit like this and pushing for an interpretation of the law that will harm journalists. It is a true shame. It is surprising. But, mostly, I am so very disappointed in Larry.

Filed Under: 1st amendment, anti-slapp, clickbait defamation, defamation, framing, free speech, jeffrey epstein, joi ito, larry lessig, nellie bowles, slapp
Companies: ny times


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Turk, 14 Jan 2020 @ 11:02am

    Can Clicktait be defamatory?

    Let's stretch the story into a hypothetical for purposes of clarity:

    I write story about Famous Person doing something Really Boring.
    I write headline stating "Famous Person Involved in [Crime of Extreme Moral Turpitude]!?!

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 14 Jan 2020 @ 11:20am

      It might not be defamatory, but it would sure as hell be sleazy, immoral, and unethical. It would also mark you as an asshole whose desire for more pageviews outweighs all of your journalistic integrity and ethical standards.

      reply to this | link to this | view in chronology ]

      • identicon
        Turk, 14 Jan 2020 @ 11:28am

        Re:

        It might not be defamatory, but it would sure as hell be sleazy, immoral, and unethical.

        Right. But the question is: Is it actionable?

        What if a clickbait headline wasn't simply misleading, but utterly divorced from the content of the story?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 14 Jan 2020 @ 12:22pm

          The headline is still part of the article. It cannot be considered separately from the context of the article, but if it is considered together with the article, and can still be reasonably interpreted as a statement of fact which is demonstratably false, then it could be defamation.

          reply to this | link to this | view in chronology ]

          • icon
            urza9814 (profile), 15 Jan 2020 @ 12:11pm

            Re:

            I think the paywall argument has a lot of merit here though. If they publish the article one place, but only the headline somewhere else, then those are two different publications, and ought to be actionable separately.

            In this case I do think the headline still appears to be sufficiently accurate that this is certainly a frivolous lawsuit...but in theory if you only make the headline available, then you don't get to say that the article that people can't read is an inseparable part of it. You're the one who intentionally separated them, you don't get to then claim that you didn't. It's one thing if the viewer doesn't bother to click through, or if their internet connection dies before the page loads; it's completely different when you actively take steps to prevent them from accessing it.

            reply to this | link to this | view in chronology ]

            • identicon
              Qwertygiy, 15 Jan 2020 @ 3:04pm

              As mentioned well below... "those are two different publications" is not at all true. When you post a headline separately, you are quoting part of the publication. It's no different than if it was Google displaying the headline in search results, or if it was listed as a citation in a court case or Wikipedia page. The mere act of repeating an exact quote in good faith is not libelious, and therefore quoting the headline of the article cannot possibly be any more libelious than the article itself.

              But even if you did not use the same headline in the article, it wouldn't be libel just because they are not available in the same place.

              The relevant part of defamation law is that you can be found guilty if you've falsely presented an opinion as being based on privileged evidence that is not possible for the reader to verify, such as something you personally witnessed, or something you present too vaguely for others to identify. It is not that you can be found guilty if you've presented an opinion (even a clearly stupid or nonsensical opinion) as being based on information that is available in some other specific place, which may require additional effort to access (such as a paywall or a visit to a library) but is still possible for the reader to verify.

              reply to this | link to this | view in chronology ]

        • icon
          Wyrm (profile), 15 Jan 2020 @ 1:46pm

          Re: Re:

          Tons of clickbait headlines are similar to a bait-and-switch.
          They represent an exaggerated and often misleading point from the article.

          This is a known practice, and courts will consider the headline as part of the article, meaning that it's not defamation if you bait people with a misleading statement then correct the induced misunderstanding later in the article.

          However, I agree with Lessig in that a lot of people read headlines and lede, then ignore the article itself. Even more so when the body of the article is behind a paywall. That doesn't make it defamation, but it is unethical. Now, if people - both writers and readers - cared about ethics, the world would be a different place.

          reply to this | link to this | view in chronology ]

  • identicon
    Adam, 14 Jan 2020 @ 11:15am

    valid lawsuit possible?

    I don't know enough about the law to answer this myself, so I ask, if something you write is misconstrued by another writer, is it ever a valid response to sue? I mean that in a legal sense, not a moral sense. Where is the line between the reader made up stuff and the writer should have done a better job of outlining what they meant?
    The topic of why Mr. Lessig supported Ito initially is something that a lot of people have been grappling with lately. The high school Ito (and I) went to has been having a lot of conversations lately about if/how alumni should support him. It got very heated quickly, sometimes it's hard for people to connect the person they know with the awful things they have done. Hopefully he serves as an example to future fundraisers (and people in general) and is able to make up for his mistakes.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 14 Jan 2020 @ 11:21am

      if something you write is misconstrued by another writer, is it ever a valid response to sue?

      Short answer: No.

      Long answer: Hell to the goddamn fucking no.

      reply to this | link to this | view in chronology ]

    • icon
      Leigh Beadon (profile), 14 Jan 2020 @ 11:38am

      Re: valid lawsuit possible?

      if something you write is misconstrued by another writer, is it ever a valid response to sue

      If the writer who was misconstrued is a public figure (which, at least for the limited purposes of the subject at hand, they almost certainly are by simple virtue of having published a public piece of writing on the subject) then a defamation lawsuit requires them to prove that the person who misconstrued them didn't just make a mistake, but rather said something deliberately false or with reckless disregard for the possibility that it might be false.

      reply to this | link to this | view in chronology ]

      • identicon
        Adam, 14 Jan 2020 @ 12:05pm

        Re: Re: valid lawsuit possible?

        So the difference between misconstrued and deliberately rewritten is important, but also difficult to show.

        reply to this | link to this | view in chronology ]

        • identicon
          Rocky, 14 Jan 2020 @ 12:39pm

          Re: Re: Re: valid lawsuit possible?

          Which is why defamation-suits in general are such messy affairs.

          reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 15 Jan 2020 @ 6:21am

          Re: Re: Re: valid lawsuit possible?

          "So the difference between misconstrued and deliberately rewritten is important, but also difficult to show."

          VERY important. Did you make an honest mistake due to a misunderstanding or did you deliberately set out to lie?

          And intent in general is always incredibly difficult to prove which is why, in the end, there's almost always multiple individuals responsible for determining guilt in a court of law (jury of some sort).
          Even if you can prove that "defendant stuck exhibit A into the body of victim A" you still need to determine whether this was by tragic accident, carelessness (manslaughter) or with intent to kill (murder) before you can determine the type of crime and degree of guilt.

          I think Lessig is acting like an ass here - he should just admit that he expressed himself clumsily and own it.

          reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 14 Jan 2020 @ 11:32am

    ... or live long enough to see yourself become the villain

    A pity really, with a blatant attack on free speech like this I suspect he just did more damage to his image and reputation than the NYT article ever could have.

    reply to this | link to this | view in chronology ]

  • identicon
    rsteinmetz, 14 Jan 2020 @ 11:46am

    What about Alfred Nobel, who developed munitions and made a large fortune on what could be called war profiteering, bequeathed his fortune to award noble discoveries.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Jan 2020 @ 12:40pm

      Whataboutism aside... that's wrong.

      Nobel's family was involved in war profiteering, not Alfred himself -- directly. His father invented one precursor of the modern naval mine. His brother Ludvig was the one who managed the war profiteering business. Alfred merely invested in them, yet this was enough to cause him considerable turmoil, as his beliefs were quite pacifist, and a significant part of his fortune came from these businesses, rather than the mining explosives he had devoted most of his life and effort to inventing. When Ludvig died, and Alfred's name was used in error in a scathing obituary referring to him as "the merchant of death", he vowed to leave behind a better legacy than this, and secretly designed his will to fund the Nobel Prizes for important contributions to society and science.

      But perhaps the most important distinction to make between the two situations is that manufacturing guns, and kidnapping and raping and selling children, are not even close to the same level of wrongness. Morally or legally.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Jan 2020 @ 12:50pm

      Re:

      "Reputation laundering" by any other name, right? The problem is looking at the world in monotone. Or even grayscale.

      Would you refuse a Nobel Prize on the basis of Alfred Nobel's war profiteering?

      Would you refuse to watch "Charlie and the Chocolate Factory" because Roal Dahl was an asshole? Refuse to read "Ender's Game" because Orson Scott Card has been a bigot?

      Would you refuse to go to a soup kitchen supported by money from Harvey Weinstein?

      Mind, none of these actions corrects the problem, or even punishes the offender. Spite your face all you like. Just don't come to me looking for rhinoplasty.

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 14 Jan 2020 @ 4:42pm

        People make decisions like the ones you laid out all the time. Conservative Christian groups stop supporting companies that use the word “damn” in a commercial. Queer people stop supporting organizations when they hear about anti-LGBT stances held by said organizations (e.g., Chick-fil-A, the Salvation Army). People do these things to settle moral and ethical dilemmas and thus live with themselves.

        Am I helping to monetarily support groups that promote the torturous practice known as “conversion ‘therapy’ ” if I buy something from Chick-fil-A? Am I helping to further oppress people of color if I vote for a White political candidate whose record on racial issues is less than stellar (but not flat-out racist)? We ask ourselves questions like these every day — or we should, at any rate. How we answer them, and how we choose to act based on those answers, defines who we are.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 14 Jan 2020 @ 5:55pm

          Re:

          I think there is an important distinction to make here between your examples and his: the order of support.

          Chicken sandwich buyer -> money -> Chick-Fil-A -> money -> anti-LGBT group.

          Voting for politician -> vote -> Politician is elected -> process of law -> Politician wields power over people.

          In those cases, your action contributes to the enabling of behavior you might disagree with.

          BUT:

          Nobel Prize winner <- medal <- Nobel Prize fund <- money <- Alfred Nobel.

          Homeless person <- soup <- soup kitchen <- money <- Harvey Weinstein (theoretically).

          MIT students <- knowledge & tools <- MIT research labs <- money <- Jeffrey Epstein.

          In these cases, the behavior you disagree with isn't gaining anything from your actions. In fact, it takes resources away from that behavior.

          reply to this | link to this | view in chronology ]

          • icon
            Stephen T. Stone (profile), 14 Jan 2020 @ 6:56pm

            Even if behavior we either agree or disagree with is neither harmed nor helped by our actions, we still have a choice to take those actions based on our own morals and ethics. Someone who refuses to work with MIT’s research labs based on the Epstein debacle may not be stopping MIT from finding other people to work with the labs, sure. But that someone still felt like they had to make that choice. Whatever effect that choice (and any subsequent action) does or doesn’t have on the MIT labs doesn’t invalidate that choice.

            reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 15 Jan 2020 @ 6:51am

            Re: Re:

            "In these cases, the behavior you disagree with isn't gaining anything from your actions. In fact, it takes resources away from that behavior."

            Actually it does. If Epstein and Weinstein can call themselves philanthropists because they tossed a million into cancer research (don't know if they did, so just an example) then they have bought themselves a laundered reputation. Most fundamentally it allows the perpetrator to consolidate their own self-image which allows them to indulge in self-deception as to how harmful to others their behavior is. Anyone read about how Weinstein, standing accused of 80 cases of sexual abuse is now whining about how "He's done more for women than anyone". Google that specific sentence and find a sexual predator who honestly believes that because he's given a nod towards equality in a few jobs he should be off the hook for multiple rapes.

            When you take the money of a monster, you encourage it to continue being a monster.

            Thus it behooves the trust in question to scrutinize any person who donates and up front refuse to share their credibility with that person if they find that would lend their good name to a rapist.

            Lessig is correct in stating that the only way you should receive donations from a shady source is if you do so anonymously, refusing to lend your name. What he should also have said is that for your own peace of mind you need to consider refusing to accept money from sources you know to be shady at all.

            reply to this | link to this | view in chronology ]

            • icon
              urza9814 (profile), 15 Jan 2020 @ 12:19pm

              Re: Re: Re:

              Seems to me that if this many people know who donated the money, then it wasn't really anonymous, was it? Then again, exactly how "anonymous" can you get before you're getting charged with money laundering or some other financial crimes? Is it even legal to accept a million dollar donation in unmarked cash stuffed in an envelope with no return address?

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 15 Jan 2020 @ 2:28pm

                Re: Re: Re: Re:

                It was anonymous to the public until someone leaked it well after the fact. Epstein could not benefit from touting his donation to people as a reputation booster, as nobody would be able to verify it without someone at MIT disclosing it, which would be the point at which it no longer became anonymous.

                reply to this | link to this | view in chronology ]

                • icon
                  Scary Devil Monastery (profile), 16 Jan 2020 @ 1:09am

                  Re: Re: Re: Re: Re:

                  "It was anonymous to the public until someone leaked it well after the fact."

                  I bet you ten to one that if Epstein had been alive every last one of his "anonymous" donations would come up in court as an attempt to establish him as a generally decent guy with a few lamentable urges which should net him a few months in rehab rather than truly hard time in a maximum security facility.

                  "...nobody would be able to verify it without someone at MIT disclosing it..."

                  Again, if epstein had been alive there'd be another party able to disclose it and use the connection to unload some of his taint on MIT.

                  The only safe way to receive a donation is if you either know the source is morally OK or if you truly can not say either way.
                  Otherwise, when a pedophile, rapist or drug dealer walks up to you and offers you a bank transfer of a million dollar, just say no.

                  It's that simple.

                  reply to this | link to this | view in chronology ]

              • icon
                Scary Devil Monastery (profile), 16 Jan 2020 @ 1:04am

                Re: Re: Re: Re:

                "Seems to me that if this many people know who donated the money, then it wasn't really anonymous, was it?"

                Of course not. the donor will be sure to donate "anonymously", then ensure his participation leaks, giving him the double hat of being "modest" about being a philanthropist.

                "Then again, exactly how "anonymous" can you get before you're getting charged with money laundering or some other financial crimes? Is it even legal to accept a million dollar donation in unmarked cash stuffed in an envelope with no return address?"

                Probably not. In which case, when you find that a million dollar has come the way of your trust fund courtesy of a Mr. epstein, you politely refuse, publicly, and make sure you state your reasons as to why you're turning down a fortune investment into <charitable cause X>.

                If a donor truly wants anonymity then the option DOES exist to have a bank act as proxy under an NDA in which case the only time the real name comes out is if the IRS or law enforcemrnt actively investigates, for good and valid reason.

                reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 15 Jan 2020 @ 6:38am

      Re:

      "What about Alfred Nobel, who developed munitions and made a large fortune on what could be called war profiteering..."

      A sad side effect.

      Alfred Nobel's invention of dynamite was because the mining explosives used at the time was nitroglycerin which has the lamentable quality of exploding when it's shaken, impacted, or in a pissy mood. In a nation with extensive mining this led to horrifying disfigurements and death tolls.

      Nobel spent many years trying to stabilize the explosive to the point where it could be considered "safe", and naturally the first use to which a stable explosive was put was in the military.

      After which Alfred set up his will, in secret, to fund the Nobel price as an annual award for the statesman who had contributed the most to peace, literature, physics, chemistry or medicine.

      reply to this | link to this | view in chronology ]

  • icon
    Rico R. (profile), 14 Jan 2020 @ 11:55am

    A chilling reminder that no one is infallible

    It’s a shame to see someone I look up to like Larry Lessig stoop so low as this. I really liked his work with Creative Commons and copyright reform. He is one of the few people who recognized that remixes and mashups of many kinds should be encouraged and welcomed, not pushed underground. So to see him do something just as chilling as filing a SLAPP suit because the New York Times said something about him that he didn’t like is disheartening, and it also is a reminder that our heroes shouldn’t be put on pedestals, as nobody is perfect.

    Larry: don't let this be your legacy.

    But if I may make a counterpoint, must we define someone by their faults and bad decisions instead of the good that they have done? I’m NOT excusing Larry’s recent behavior in the slightest, but we still shouldn’t forget all the good things he has done, such as pushes for copyright reform, helping establish the Creative Commons, etc. Perhaps a bigger philosophical argument than the one Lessig was making is if we should regard someone’s legacy as the bad or good things they do, and I’d argue that we remember the good.

    But above all, it’s sad to see Larry Lessig file this lawsuit.

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 14 Jan 2020 @ 12:31pm

      Re: A chilling reminder that no one is infallible

      But if I may make a counterpoint, must we define someone by their faults and bad decisions instead of the good that they have done?

      Ask somebody what they think of Ralph Nader and their first response probably won't be about auto safety.

      reply to this | link to this | view in chronology ]

      • icon
        Samuel Abram (profile), 14 Jan 2020 @ 1:42pm

        Re: Re: A chilling reminder that no one is infallible

        I was just about to bring up Ralph Nader. He did a lot of good with auto safety and establishing Public Citizen. But a lot of people (I used to be one of them, mind you) rightfully or wrongfully see him as someone who gave us George W. Bush's presidency, though to be honest, considering that
        A. Obama won in spite of Ralph Running,
        B. Obama also went to the right of George W. Bush in some respects (like militarism),
        C. Some of the same people who criticized Ralph Nader for being a spoiler said the same thing about Bernie Sanders in 2016 despite him running against Clinton in the primary and supporting her in the general,

        I think People should have been angrier at the democratic party for suppressing their left flank than being mad at a third-party candidate who had the audacity to run (and whose votes wouldn't be an issue if we had ranked choice/alternative/instant runoff voting in the general election).

        reply to this | link to this | view in chronology ]

        • icon
          Thad (profile), 14 Jan 2020 @ 2:29pm

          Re: Re: Re: A chilling reminder that no one is infallible

          Oh, I'm not saying the people who are still mad at Nader about the 2000 election are right, just that that's the thing he's most associated with now.

          reply to this | link to this | view in chronology ]

          • icon
            Samuel Abram (profile), 14 Jan 2020 @ 3:06pm

            Re: Re: Re: Re: A chilling reminder that no one is infallible

            Fair enough. To be fair, I still think Nader's third-party presidential runs were quixotic and nonsensical. That being said, it's not just that Nader ran in 2000, he ran again and again. Also, 2000 wasn't even the first year he ran; he ran in 1996 first. It remains to be seen whether what Prof. Lessig is doing here is a blemish or a permanent scar on his record. Hopefully the former; I fear the latter.

            reply to this | link to this | view in chronology ]

            • icon
              Thad (profile), 14 Jan 2020 @ 3:16pm

              Re: Re: Re: Re: Re: A chilling reminder that no one is infallibl

              I think Nader was a great public servant and could have been a great elected leader.

              He should have started by running for Congress, or maybe state or local office. He shouldn't have jumped straight to running for president.

              reply to this | link to this | view in chronology ]

              • icon
                Samuel Abram (profile), 14 Jan 2020 @ 5:22pm

                Re: Re: Re: Re: Re: Re: A chilling reminder that no one is infal

                think Nader was a great public servant and could have been a great elected leader.

                He should have started by running for Congress, or maybe state or local office. He shouldn't have jumped straight to running for president.

                It worked for Trump*

                *but only after he ran as a Republican

                reply to this | link to this | view in chronology ]

      • icon
        Hugo S Cunningham (profile), 14 Jan 2020 @ 1:50pm

        Re: Re: A chilling reminder that no one is infallible

        Or ask someone about Sonny Bono, a reasonably likeable entertainer in the 1960s.

        reply to this | link to this | view in chronology ]

        • icon
          Thad (profile), 14 Jan 2020 @ 3:13pm

          Re: Re: Re: A chilling reminder that no one is infallible

          Or Fredric Wertham. If he hadn't decided to mount a censorious moral-panic crusade against comic books, he would be remembered as the psychologist responsible for the doll study used as evidence in Brown v Board of Education.

          reply to this | link to this | view in chronology ]

    • icon
      Leigh Beadon (profile), 14 Jan 2020 @ 12:46pm

      Re: A chilling reminder that no one is infallible

      But if I may make a counterpoint, must we define someone by their faults and bad decisions instead of the good that they have done? I’m NOT excusing Larry’s recent behavior in the slightest, but we still shouldn’t forget all the good things he has done, such as pushes for copyright reform, helping establish the Creative Commons, etc. Perhaps a bigger philosophical argument than the one Lessig was making is if we should regard someone’s legacy as the bad or good things they do, and I’d argue that we remember the good.

      But what if it's not up to us, and a person's legacy is defined by which of their actions has the most lasting, regularly-visible impact on the world after they are gone?

      Right now for Lessig that would probably be Creative Commons.

      After this, it may well be Lessig v. New York Times getting cited in every libel case - either because it's a terrible anti-free-speech precedent that allows people to sue their critics, or because it's a stark example of a pathetic SLAPP suit getting brutally smacked down by the courts.

      reply to this | link to this | view in chronology ]

      • identicon
        Qwertygiy, 14 Jan 2020 @ 4:09pm

        Re: Re: A chilling reminder that no one is infallible

        I am a NASCAR fan, and so there is one very good example of this sort of problem I can present.

        My favorite driver is a first-ballot Hall-of-Famer who is among the top 10 winningest drivers of the modern era. He's the only driver to ever win a national open-wheel championship and a national stock-car championship. He's only the second person in the 70 years of the sport to win separate Cup titles as a driver and as a team owner. He operates what is arguably the most successful dirt track in the country. And on top of that, he's done a ton of things for charity, not only through his foundation that supports endangered animals and injured drivers, but working with groups like Habitat for Humanity or Victory Junction Gang and personally paying off medical bills for certain injured racers.

        But it seems as though the world will only ever remember Tony Stewart as "that NASCAR driver who killed someone" after that crash in New York in 2014 when Kevin Ward ran in front of his car. Even though there were never criminal charges, and the civil case was in his favor up until the family settled, the damage has been done.

        There are a lot of other examples, too. Pete Rose, a stellar career overshadowed by placing bets on games as a manager. Janet Jackson, second-most-successful female musician of the 90's, blacklisted for half the 2000's over a wardrobe malfunction. Even the likes of Benedict Arnold, who almost nobody remembers was the man who truly seized Fort Ticonderoga and the surrounding regions from the British.

        But then again, sometimes it doesn't always stick. Charles Lindbergh is still remembered as the Spirit of St. Louis, not as a Nazi sympathizer. H.P. Lovecraft is remembered as a master of horror stories, not as a serious racist. Dr. Seuss is remembered for his childrens' stories, not his racist WWII propaganda.

        But, perhaps, it is important to note the order of events. Lindbergh returned to America in 1939 and flew missions in the Pacific after Pearl Harbor. Lovecraft's racist beliefs weakened over time as he interacted with broader minds, and his stories weren't well-known until after his early death. Seuss's stories of tolerance and cooperation, like the Star-Bellied Sneetches and the Grinch, were written after he'd denounced his earlier works as offensive and wrong. And Jackson's blackballing has faded away somewhat as she's continued to do the things she did before the Super Bowl fiasco.

        In short... if you're going to screw up, don't screw up after you've already done all your good things. Make sure you have some good left in you to make up for it.

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 14 Jan 2020 @ 5:01pm

          Janet Jackson, second-most-successful female musician of the 90's, blacklisted for half the 2000's over a wardrobe malfunction.

          And yet Justin Timberlake, who was the one directly responsible for said “malfunction”, got off scot-free.

          Sounds about white to me.

          reply to this | link to this | view in chronology ]

          • This comment has been flagged by the community. Click here to show it
            identicon
            Anonymous Coward, 14 Jan 2020 @ 5:23pm

            Re:

            Why must everything with you be about race? If there is any chance at all that an event involved racial discrimination that's the bandwagon you jump on. Every single time.

            reply to this | link to this | view in chronology ]

            • icon
              Stephen T. Stone (profile), 14 Jan 2020 @ 6:01pm

              As a White American, being able to ignore race is a privilege. I choose not to indulge in it.

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 14 Jan 2020 @ 10:23pm

              Re: Re:

              Sooo much projection bro.

              reply to this | link to this | view in chronology ]

            • icon
              Scary Devil Monastery (profile), 16 Jan 2020 @ 1:18am

              Re: Re:

              "Why must everything with you be about race?"

              Well, it could be about endemic misogyny instead.

              Fact of the matter we've got one artist ripping the cover off another artist's breast at a massive gala and somehow the one who got blacklisted and ostracized was the victim.

              I personally think it's less about Janet being black and much, MUCH more about her being female and showing a nipple on TV. After which the witch hunt was on and it was all her fault.

              A lot of it could be because most of the media involved was just too spineless to use the headline "Justin Timberlake rips Janet's dress, exposing nipple" rather than the more crowdpleasing "Janet has wardrobe malfunction, makes a clean breast of it. Tee Hee."

              reply to this | link to this | view in chronology ]

            • icon
              Scary Devil Monastery (profile), 16 Jan 2020 @ 1:21am

              Re: Re:

              "If there is any chance at all that an event involved racial discrimination that's the bandwagon you jump on. Every single time."

              Well, yes. It's pretty natural that sane people react negatively when obvious racists perform obvious racist acts against minorities and then brag about how they put the "damn Nxxxer" in his place.

              And in Janet Jackson's case it's pretty fucking obvious that either due to being female or due to being black when a white, male artist tore her dress down SHE was somehow the one to take the blame.

              reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 14 Jan 2020 @ 6:18pm

            Re:

            Not necessarily fair to say he was directly responsible; Timberlake was following Janet's orders. By her own account, it was her show, she was responsible for the performance, and it was her idea to have the corset-ripping moment. I agree it's not right that there was so much disparity in how they were treated afterwards, especially when she was forced to step down from the Grammys and Timberlake wasn't, but neither of them ever claimed it was all his fault.

            But all this is a bit, eh, sidetracking.

            reply to this | link to this | view in chronology ]

        • icon
          Leigh Beadon (profile), 14 Jan 2020 @ 9:12pm

          Re: Re: Re: A chilling reminder that no one is infallible

          Ooookay. A lot to unpack here. Let's see what we can do.

          Re: the NASCAR driver. I don't know enough about the specifics to offer much of an opinion, but based on your description: yes, sometimes spectacle can really throw this whole equation out of whack, and a NASCAR crash is a high-octane brand of spectacle. The majority of people don't know a damn thing about Cup titles or the relative success of dirt tracks, but a gruesome NASCAR crash is front-page news. I can definitely see how this might result in some unfair legacies - but it's pretty far removed from the subject at hand, so that's all I'm going to say about that one for now.

          Pete Rose - again honestly not my area of expertise, and so I'm basing everything I say on a glance at his Wikipedia page. But it seems to me that your description "a stellar career overshadowed by placing bets on games as a manager" is fair enough, and there's no real problem with that. Personally I don't really know or care much about the careers of baseball managers - whereas I am at least somewhat interested in famous cheats. And I expect there are dozens of stellar managers who I don't know about - but far fewer stellar managers who were banned for dishonest gambling. It's no surprise to me he's remembered for the latter, and since it's a great tradition (and especially but not exclusively an American tradition) to kinda love a clever scam artist, I gotta say, I think he might have actually lucked out on the legacy front.

          Janet Jackson - Is that honestly a stain on her legacy? Sure, she suffered some negative consequences - in part because our culture's attitude about sex and women's bodies is completely insane, and also in part I assume because "willingness to do something unscripted and controversial at a show as large as the superbowl" is a black mark in the books of a lot of fastidiously risk-averse producers. But as for her legacy, when the histories are written, it will be just a chapter in the story of her career (and, okay, maybe the book jacket photo) but not even close to the only thing she's remembered for.

          Benedict Arnold - Okay c'mon man, whatever. Even his corpse is gone by now. What, is his dust spinning in his grave? I'm not gonna stress over this one. Plus that show Turn portrayed him at least semi-sympathetically at times.

          Charles Lindbergh - I've thought of him first and foremost as "nazi sympathizer" since I learned that a long time ago, so I forgot about that, but you're right - he deserves more criticism than he gets. Though he's also remembered primarily for a famous kidnapping to some people. Between the kidnapping, the incredible complexity of the culture's postwar handling of Nazi sympathizers and expats, and the cool airplane stuff, I'm going to chalk that one up to "unique situation" and move on...

          H.P. Lovecraft - That's an interesting example because we are right now in the middle of a sea change on that front. For a long time you were correct, but now the subject of his incredible racism has bubbled up to the mainstream. (Incidentally, one of his stories that just became public domain this year is a possible source of inspiration for our public domain game jam but... well, let's just say it offers some challenges on exactly the front you mention, and I hope that if anyone chooses to work with it they have thought carefully about that.) So now we've got Jordan Peele in charge of the upcoming Lovecraft Country series on HBO, among several other recent and upcoming examples of projects taking on Lovecraft's racism. In the case of someone who held views as vile and odious as his, I tend to have an attitude of "we should take the valuable things they created away from them and make them our own, and when possible even specifically put them to work for purposes he would have hated in the hands of creators he would have looked down on". Because I dunno, that feels like a way to achieve justice without throwing out the things we might as well enjoy despite (and to spite) him. And again it doesn't really matter because he has spent the last 80 years in a grave that is little more than the subject of a funny story Patton Oswalt tells that I can't find a convenient link for right now.

          Dr. Seuss - I have a big book of Seuss's WW2 cartoons with an introduction by noted cartoonist Art Spiegelman. It's been a while since I read it so maybe I need to take another look, but I don't remember it being predominantly racist. I believe there are a few cartoons that do indeed fall into racist caricature territory in terms of their visual depictions, but the overwhelming thrust of the comics is committed antifascism and advocacy for America to oppose the Nazis.

          So look, yes: legacies are complex. And nobody has control over them. So no, I will not respond to this by saying "Lessig was a libel troll and nothing else". But it'd also be nice if Lessig v. New York Times doesn't become the autocomplete for everyone who gets halfway through typing his name in a search box.

          reply to this | link to this | view in chronology ]

          • identicon
            Qwertygiy, 15 Jan 2020 @ 12:50pm

            Re: Re: Re: Re: A chilling reminder that no one is infallible

            Just to clarify one point -- I was referring to Pete Rose's career as a baseball player being stellar. To this day he still holds almost every career record in Major League Baseball that isn't related to pitching or scoring. Most hits, most players tagged out, most games played, most games won, best right-fielder, and a lot more that are less interesting. His peers are the likes of Derek Jeter, Ichiro Suzuki, Ty Cobb, Lou Gehrig, and Joe DiMaggio.

            But your comment still holds pretty valid (as do the other responses!) -- "getting away with it" stories about clever cheaters are usually more interesting than baseball. Just ask Shoeless Joe.

            reply to this | link to this | view in chronology ]

        • icon
          urza9814 (profile), 15 Jan 2020 @ 12:53pm

          Re: Re: Re: A chilling reminder that no one is infallible

          That brings up an interesting question -- where do we draw the line between "reputation laundering" and doing good to make up for your mistakes? I do think it's a fair point that you shouldn't get a clean slate just by throwing some money around, but I also agree that we need to provide everyone an opportunity to clear their reputation. But they've gotta put some actual work and commitment into it. Then again, I don't really think anybody should get a reputation just for throwing around some cash. "Philanthropist" isn't a purpose or a mission, it's a sink.

          reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 14 Jan 2020 @ 4:59pm

      must we define someone by their faults and bad decisions instead of the good that they have done?

      “Tell my tale to those who ask. Tell it truly, the ill deeds along with the good, and let me be judged accordingly. The rest…is silence.” — Dinobot, Beast Wars, "Code of Hero" (Season 2, Episode 9)

      We don’t judge someone only by the good things they’ve done unless those things truly outnumber/outweigh the horrible things they’ve done. The opposite holds true as well. To wit: Whatever good Bill Cosby did as an actor and a voice for Black people, he ruined that by being a serial rapist.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 15 Jan 2020 @ 7:00am

      Re: A chilling reminder that no one is infallible

      "But if I may make a counterpoint, must we define someone by their faults and bad decisions instead of the good that they have done?"

      It's a valid counterpoint but...
      ...that way Harry Weinstein is similarly someone who should be remembered because "he did more for women than anyone" thanks to him every now and then using women directors before other producers did.

      What is important is, i think, to curb hero worship, recalling that just because someone has, at great risk to self, done a great deed doesn't mean they can't be an asshole. View Julian Assange as exhibit A.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Jan 2020 @ 12:49pm

    Only winners are his lawyers

    His lawyers must be celebrating every time he gets angry enough to sue. They are fleecing him out of his wealth but he is too blind to see it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Jan 2020 @ 1:04pm

    The NYT headline was dishonest yet what Vice did to Stallman was 100x worse. However, Stallman didn’t sue, which puts Lessig lower in my eyes than Stallman. Weird times.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Jan 2020 @ 2:41pm

      Re:

      If you don’t know what I’m talking about:

      From Stallman’s email:

      We can imagine many scenarios, but the most plausible scenario is that [Epstein’s victim] presented herself to [Minsky] as entirely willing. Assuming she was being coerced by Epstein, he would have had every reason to tell her to conceal that from most of his associates.

      Vice headline:

      Famed Computer Scientist Richard Stallman Described Epstein Victims As 'Entirely Willing'

      ...and the article body:

      Early in the thread, Stallman insists that the “most plausible scenario” is that Epstein’s underage victims were “entirely willing” while being trafficked. Stallman goes on to argue about the definition of “sexual assault,” “rape,” and whether they apply to Minsky and Giuffre’s deposition statement that she was forced to have sex with him.

      reply to this | link to this | view in chronology ]

    • identicon
      Jordan Chandler, 14 Jan 2020 @ 4:06pm

      How?

      How was it dishonest? He literally had the title in his article

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Jan 2020 @ 4:20pm

        Re: How?

        "dishonest"! says Jordan. It was literally in their comment!

        reply to this | link to this | view in chronology ]

        • identicon
          Jordan Chandler, 14 Jan 2020 @ 4:33pm

          Re: Re: How?

          Can you read? I asked how is it dishonest. They literally quoted him in the title of the article,

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 14 Jan 2020 @ 6:21pm

            I believe you may have gotten whooshed. ;)

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 16 Jan 2020 @ 10:28am

            Re: Re: Re: How?

            It is dishonest in that Stallman never said the victims were "entirely willing", but that they were probably forced to present themselves as such to their "clients". That's the same difference as "giving your money willingly" and "giving your money to someone pointing a gun at you". And the reason he raises this point is in questioning the degree of knowledge of Minsky and others had of the girls' situation.

            There is a world of difference between what Stallman said and what Vice reported.

            reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Jan 2020 @ 5:48pm

        Re: How?

        How dishonest? About 100 times less dishonest that Vice's headline about Stallman. That's how.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Jan 2020 @ 2:31pm

    Either way, the NY Times published an article by reporter Nellie Bowles, entitled: A Harvard Professor Doubles Down: If You Take Epstein's Money, Do It in Secret. So, does that misrepresent the larger point of Lessig's piece? Absolutely. But does he say that? Well, yes, he does.

    No, he doesn't. He says, "this is what I thought in the past, and this is why I was wrong to think that way." In other words, literally the exact opposite of doubling down on it. So saying that he doubled down on that notion is pretty clear-cut defamation AFAICT. We've seen a lot of bogus defamation suits come through Techdirt over the years, but this one sure looks legit.

    reply to this | link to this | view in chronology ]

    • icon
      Leigh Beadon (profile), 14 Jan 2020 @ 2:37pm

      Re:

      "this is what I thought in the past, and this is why I was wrong to think that way."

      Not really. He stands by the assertion that if you are going to take it, take it in secret - but ultimately concludes they shouldn't have taken it at all in this case.

      See, you're offering up a totally valid favourable interpretation of his piece; Bowles offered up a totally valid unfavourable interpretation of his piece. And it's not even so much a difference of interpretation as just a different choice of which part of the message to focus on. And the courts are not the place for a fight between totally valid interpretations/focuses.

      reply to this | link to this | view in chronology ]

      • identicon
        Paul, 14 Jan 2020 @ 9:56pm

        Re: Re:

        Lessig clearly said that "If you're going to take it, take it in secret" doesn't apply to Epstein. Before discussing type 3 money he called taking the money a mistake WRT Epstein, and then after he points out his reason: that it won't stay secret. Believing NYT's headline requires believing Lessig doubled down on a strategy that requires doing something he said shouldn't be done.

        It's valid to be concerned about press freedoms -- every exclusion to free speech is an opportunity to chill the press. At the same time I think it's valid to be concerned about the victims of such creative interpretations. I remember not too long ago when the press pulled a similar trick with Stallman.

        reply to this | link to this | view in chronology ]

        • icon
          Leigh Beadon (profile), 14 Jan 2020 @ 10:49pm

          Re: Re: Re:

          Lessig clearly said that "If you're going to take it, take it in secret" doesn't apply to Epstein

          I think "clearly" is quite a stretch - I honestly don't read it that way. He says it shouldn't have been taken at all, but that if it is taken, it should be secret. He even doubles down on this in his update, which reads:

          I’ve argued that “IF” a great university takes type 3 contributions, then they should be anonymous. That conditional has been heard by some to mean I support the idea of a great university taking Type 3 contributions. I do not. I believe a great university should say, absolutely, it won’t take money from criminals. My only point was that MIT had apparently decided to take Type 3 contributions. “IF” they do that, then of course the contributions should be anonymous.

          This is kind of splitting hairs, of course, because I do agree the overall thrust of his piece is at least slightly misrepresented by the NYT headline. But I also think it's entirely fair of someone to feel the opposite, and to focus on the message that is summarized in the NYT headline, because that message was absolutely present in the piece. And so this is not a libel issue - it is a difference of opinion.

          reply to this | link to this | view in chronology ]

  • identicon
    Jordan Chandler, 14 Jan 2020 @ 4:05pm

    He wrote a medium article about it

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Jan 2020 @ 5:58pm

    Not Just Context But Weight

    In online journalism how important is the headline and the lede? Headline and lede are the monetary hooks, the SEO, and the only thing X% of readers will ever see. Is the headline more important than the article as a whole? If not, it's probably close to equal.

    Yes, a victory for Lessig sets a scary precedent. Yes, the floodgates would open to a lot of absolutely terrible lawsuits. Yes, abuse of any new laws would outnumber legitimate uses...

    Imagine a world the other way around though. Imagine the precedent being set that a headline doesn't have to have anything to do with the whole article? You think people are poorly informed by articles hot-potato'd around social media now just imagine if headlines could be anything.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Jan 2020 @ 6:36pm

      Re: Not Just Context But Weight

      This would not be the other way around. This is not a case of intentionally-misleading, false information. The only part of the headline that isn't a direct quote is the phrase "doubles down", which just means "stands by what he did or said before". Which he does.

      This is not an article about John going to the store and buying an iPod with the headline JOHN HATES AMERICA AND THINKS INDUSTRIAL SLAVERY IS GREAT.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 15 Jan 2020 @ 7:51am

        Re: Re: Not Just Context But Weight

        Lamentably Lessig dun goofed. I'm pretty sure that he opposes the idea of taking donations from Epstein - and this is the part which discerning readers of the NY Times should focus on.

        Sadly, however, Lessig should have proofread his manuscript and realized that any ambiguity would be quoted out of context if it provided a decent attention-grabbing headline. The he should have formulated the text so as to remove said ambiguity.

        reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 14 Jan 2020 @ 8:08pm

    Well, that's new

    ... did TD just get woo spam?

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 14 Jan 2020 @ 8:28pm

    Clickbait Defamation and the Circular Firing Squad (Obama)

    Wow, ClickBait Defamation.

    That's pretty much Techdirt's WHOLE business model.

    No wonder you are against it.

    You would have nothing left.\

    You have become part of Obama's "Circular Firing Squad"!

    I love it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Jan 2020 @ 10:25pm

      Re: Clickbait Defamation and the Circular Firing Squad (Obama)

      How Jhon you threaten to rape any disabled people today?

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 15 Jan 2020 @ 7:51am

        Re: Re: Clickbait Defamation and the Circular Firing Squad (Obam

        "How Jhon you threaten to rape any disabled people today?"

        Shush, he's wearing his Hamilton suit today.

        reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    Zof (profile), 15 Jan 2020 @ 3:45am

    Good job Larry

    The only way to get justice now is to sue the shit out of people that tell lies about you. It's the only thing works. I hope he sues them to death.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 15 Jan 2020 @ 5:59am

      Congratulations, you’re a vindictive asshole who thinks anyone who spouts even the smallest mistruth, regardless of whether it was done maliciously, should be sued until they’re homeless so they can die in a gutter. The Trump administration will be contacting you shortly to see if you want a job in the DOJ.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Jan 2020 @ 3:48pm

      Re: Good job Larry

      You’re almost as much as an impotent fuckwit as Jhon boi.

      Congrats?

      reply to this | link to this | view in chronology ]

  • identicon
    dr evil, 15 Jan 2020 @ 5:43am

    spellin nazi

    in-depthly?

    reply to this | link to this | view in chronology ]

  • icon
    urza9814 (profile), 15 Jan 2020 @ 12:05pm

    Paywall IS important

    "John Roddy makes an interesting point that perhaps one could argue that the fact that the article itself (but not the headline and lede) are behind a (fairly porous) paywall could somehow change the calculus, but that seems unlikely to fly in any court."

    That seems...not just possible, but obviously true IMO. The free version may be a derivative work of the paid article, but it is clearly a different publication, being provided through different means to a different user base. Much like Sparknotes is not the same publication as the novel it's based on. The original is the original. The summary is not the original, the truncated version is not the original, the translation is not the original...nothing is the original except the original.

    I can't sue over something I can't access...if I can't view it, I can't be sure it exists. But now you say I also can't sue over the part that I CAN access? That seems very, very wrong.

    reply to this | link to this | view in chronology ]

    • identicon
      Qwertygiy, 15 Jan 2020 @ 12:59pm

      Re: Paywall IS important

      I feel like it should be a factor that is weighed in the importance of the headline/lede vs. the article, but it should not be treated as a separate work. This is not an abridged version of a work. It is not a treatise upon a work. It is not a translation of a work.

      If the article was to be compared to a novel, the headline and lede would be the title and tagline upon the front cover of the book. And while the law is, thankfully, much more nuanced than old adages and truisms, you know what they say about judgement upon covers.

      reply to this | link to this | view in chronology ]

      • icon
        urza9814 (profile), 15 Jan 2020 @ 1:07pm

        Re: Re: Paywall IS important

        I think there's a pretty significant difference between headlines of paywalled articles and the cover of a novel. Typically, if you have access to the novel to read the cover, then you have access to read the rest of it too. Most book stores won't kick you out for flipping through the book before buying it. The only way you'd only have access to the cover is if you're seeing it in a catalog or something -- and that is certainly a separate work.

        Also, I think it really must be viewed separately. Otherwise, what's to stop me from publishing absolutely any blatant fraud that I want, and claiming that it's not fraud because it's only the headline and the full article which explains the truth is available for the low price of $10,000,000 per view?

        reply to this | link to this | view in chronology ]

        • icon
          Leigh Beadon (profile), 15 Jan 2020 @ 2:02pm

          Re: Re: Re: Paywall IS important

          Most book stores won't kick you out for flipping through the book before buying it.

          But that implies that if book stores - which are totally independent entities from the writers/publishers - decided to change their practices and put all the books behind glass, then they could, by their actions over which the writer/publisher has zero say, turn a book into libel even though it wasn't before. That's a very problematic legal situation.

          Similarly the NYT does not intend for anyone to "only read the headline", or to take the headline at simplistic face value when they haven't read the article - so while they may know that people do that, they have no control over it. So how can something they have no say in be the determinant of whether or not they committed libel?

          reply to this | link to this | view in chronology ]

        • identicon
          Qwertygiy, 15 Jan 2020 @ 2:19pm

          Re: Re: Re: Paywall IS important

          RE: the first paragraph: not necessarily true, for many reasons.

          For one, just as some bookstores will usually let you read paid books without buying them, the New York Times will usually let you read the paid article without subscribing.

          For another, there can be instances in which there is a significant difference in access to the cover and the contents -- perhaps the book has packaging that keeps it from being opened until bought, such as with some magazines, special editions, or bundled collections of books. Or perhaps the book is one that the store has restricted for some reason and cannot be read without special access or purchase, perhaps because it contains adult material or because there are concerns about vandalism.

          And as far as catalogues go, including the title and tagline for a book in a catalogue does not mean that this title and tagline are now its own separate work with its own unique copyright status. It is a portion that is being quoted from the original work, which consists of the entire book. This is pretty squarely established in numerous copyright lawsuits where the courts declared search engines to be fair use.

          RE: your second paragraph: there are plenty of examples of similar situations to be found, and some of them are not illegal. The classic example would be the $1,000 book titled "A Complete Guide on How to Make $2,000 Fast" where the entirety of the book is a single sentence: "Write a book on how to get rich quick, and sell two copies for $1,000 each." And then you have things like this book; The Deep State: How an Army of Bureaucrats Protected Barack Obama and Is Working to Destroy the Trump Agenda. Such slanted titles are not exactly uncommon in political works of any variety, but I am not aware of any instance in which a work has been found to be libelious (or, as perhaps is being argued in this case, where a catalogue listing the work has been found to be libelious) because the catalogue only lists the title and tagline and not also the text which validates them.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Jan 2020 @ 7:01pm

    I think such a defamation suit is a really bad idea and could set an atrocious precedent. I also think the Times' headline and Benton's argument are crap. Saying "in secret" implies something rather different from saying "anonymously". "Secret" is like hiding illegal or illicit behavior. "Anonymous" is like denying credit for something minor to an asshole. Maybe journalists and papers should up their game a little if they want to avoid being chilled, because thats how you get chilled, regardless as to wrong bad defamation claims and law are. (Plus stupid journalism helps no one.)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Jan 2020 @ 7:10pm

    Mike you should give up the charade, you don’t think defamation lawsuits should exist period.

    reply to this | link to this | view in chronology ]

    • identicon
      Qwertygiy, 15 Jan 2020 @ 8:11pm

      Re:

      Yeah, no, sorry, bud. When a notable one shows up that actually has some merit and isn't clearly a SLAPP suit, he says so. And it didn't even succeed in the end, so it's not like he only said so because it was a slam dunk win.

      reply to this | link to this | view in chronology ]

    • icon
      Leigh Beadon (profile), 16 Jan 2020 @ 11:55am

      Re:

      Mike you should give up the charade, you don’t think defamation lawsuits should exist period.

      And here we see how this barrage of bad SLAPP suits has begun to normalize itself in people's minds.

      You think suits like this are characteristic of defamation law, and well within its intent. They are not. You think that opposition to the majority of defamation suits involving public figures indicates opposition to defamation law entirely. It does not.

      Remember that public figure defamation is an edge case in the law. Its main purpose is to handle disputes between private individuals that are not of any particular interest to the public. If you have a personal enemy and they call up your boss and tell him a bunch of lies about how they saw you smoking crack and beating your spouse, and get you fired, then by all means sue them for defamation. It just won't get any news coverage because nobody else cares any more than they do about a dispute with your neighbour over the height of your fence.

      reply to this | link to this | view in chronology ]

  • icon
    Richard Bennett (profile), 18 Jan 2020 @ 3:20pm

    I like this phrase "clickbait defamation"

    Clickbait defamation is the business model of oh so many blog since Gawker pioneered it. I don't think it's criminal in the US, but it is in some other countries.

    Anyhow, I've been saying Ito and Lessig are off their rockers for 15 years. It's good that Masnick is finally wising up.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jan 2020 @ 12:13pm

      Re:

      I like this phrase "clickbait defamation"

      Not surprising. Ironic though since you use so many "clickbait defamation" headlines on your own blog. Not to mention the thumbnails you use.

      Clickbait defamation is the business model of oh so many blog since Gawker pioneered it.

      Pfft! Hahahaha!!! That's been around a heck of a lot longer than Gawker. I'd say at least since the invention of the printing press. Maybe longer.

      I don't think it's criminal in the US, but it is in some other countries.

      Then why even bring it up?

      Anyhow, I've been saying Ito and Lessig are off their rockers for 15 years.

      Bully for you. I'd be willing to bet money they are less off their rockers than you.

      It's good that Masnick is finally wising up.

      You might try reading the article again.

      Try again Richard.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Jan 2020 @ 6:16pm

      Re:

      Hi, Bennett. How's that Frontier begging rescue operation coming along?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jan 2020 @ 11:35pm

    If you're okay with Twitter, Facebook, or Youtube removing videos they find objectionable - such as Nazi propaganda - then you are also perfectly okay with this. Or you're a hypocrite.

    The only moral reason a newspaper should be capable of publishing whatever they please, regardless of whether its "nuance" is damaging, is if the right to state one's opinions in a public forum is protected by the first amendment from ALL infringement - by both the government or <i>or any other party</i>.

    Much like a site removing "legal yet objectionable" content, a civil suit is not considered "infringement" of the constitution, and thus no protection <i>of any sort</i> exists for either.

    To put this another way: fucking lie in it. You made it.

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.