Lawrence Lessig and Clickbait Defamation
Photo by Roger Fenton via Wikimedia Commons
Okay. So there’s, like, a lawsuit. Lawrence Lessig is suing the New York Times for defamation. Specifically: Clickbait Defamation.
Here’s the tweet in which he announces it:
Today I sued the @nytimes: https://t.co/tXEXgzcD9w
— Lessig (@lessig) January 13, 2020
So let’s say that you don’t want to read all of that stuff (who can blame you?). You just want the down and dirty details.
Lessig wrote something a while back. An essay. The NYT took one of the points he made in the middle of it and made a paraphrase of that point the headline. Lessig is suing because he made multiple points in his article and the NYT made a headline out of only one of them and it wasn’t the most important point he made. To give even more details (without getting into specifics), his original essay said something like “if you can’t do A, do B. If you can’t do B, do C. And the worst option is D” and the NYT ran a headline saying “Lessig says ‘Do C'”.
And the question is whether saying that Lessig said “Do C” in a headline is defamation.
Popehat, God bless him, wrote a thread about it that starts here:
I’ve seen Prof. Lessig’s suit against the NYT, and have a few thoughts.
/1https://t.co/Px8AibyY6i— EminentHat (@Popehat) January 13, 2020
Paraphrased, he points out that the Headline trick the NYT uses is kinda jerky but, at the same time, the article goes into a lot more detail and gets the story right and there is precedent for this sort of thing that says “it ain’t defamation if the article explains the headline in greater detail”.
Which gets us to this point here:
/5 The rule, in general, is a Very Good Thing, and crucial to protecting expression. I understand the argument that it’s misguided given the fact that many people read ONLY the headlines and draw conclusions based on them.
— EminentHat (@Popehat) January 13, 2020
Which has someone ask the following question:
So question; since NYT is notorious for having a paywall to see the article beyond the headline, would the change how the case could be ruled? Since the public can’t see the rest of the text in question?
— Jackie (@Writer724) January 13, 2020
Popehat responds by pointing out that this is a g-darned fantastic question (actual blasphemy appears in original).
So, in a world where you might not have access to the story itself just because you read the headline…is Clickbait Defamation a thing?
But wait, I hear you ask. I am not sure that I can really reach a conclusion without knowing what the headline actually was!
Okay, fine. Here’s the actual headline:
A Harvard Professor Doubles Down: If You Take Epstein’s Money, Do It in Secret
Here’s the essay in question:
On Joi and MIT https://t.co/yNxFR0O8QZ
— Lessig (@lessig) September 8, 2019
You should read the essay for yourself because any excerpt that I make isn’t likely to do it justice but, hey, maybe you just don’t have a whole lot of free time and just want the broad strokes. If that’s the case, fine.
He makes distinctions between 4 kinds of entities that might donate money to good causes and our attitudes toward the money that they offer. The first are good people who got their money honestly and want to donate. This group doesn’t cause any ethical problems. The second are corporations that got their money as honestly as corporations can really get money. It’s not that corporations are good, necessarily, but the money doesn’t obviously have blood on it. So that’s mostly okay too. The third are from people like Jeffrey Epstein. Criminals themselves but they didn’t necessarily get their money from their criminality. He said that it’s ethically best to avoid this sort of cash BUT if you have to accept it, accept it anonymously. (The fourth kind of money is from Corporate entities like cigarette companies or the Koch brothers or the like.)
Seriously, read his essay for yourself to make sure that I’m not paraphrasing him unfairly.
Anyway, the headline comes out: A Harvard Professor Doubles Down: If You Take Epstein’s Money, Do It in Secret
Now, Lessig added this addendum to the bottom of his essay a couple days after originally publishing it:
On whether Type 3 contributions should be taken
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.
The NYT article is dated September 14th. The Lessig essay is dated September 8th and the addendum is said to be on the following Wednesday (which would be the 11th).
So… Judges? Does he have a case?
(Featured image is “Scales of Justice” by Government of Prince Edward Island . Used under creative commons license.)
It’ll be funny to see who makes the argument that tainted money is tainted forever and there’s no good way to use it, and whether it’s the same people who just a little while back said that money is FUNGIBLE and so there’s NO DIFFERENCE between PAYING FOR BIRTH CONTROL and GIVING SOMEONE MONEY THAT THEY SPEND ON BIRTH CONTROL so if you don’t have a moral concern with the latter then you BY DEFINITION ARE NOT ALLOWED to have a moral concern about the former.Report
This goes beyond click-baity headlines. These seem like outright lying headlines. If the NYT keeps this up, it will one day go the way of gawker. It seems as if people haven’t learned the lesson of Gawker: Don’t be an enormous asshole. If you make a habit of it someone will eventually sue you for everything you haveReport
If I were to defend the NYT, I’d look at the note that Lessig added on Wednesday:
I’ve argued that “IF” a great university takes type 3 contributions, then they should be anonymous.
And then the last line from that paragraph again:
“IF” they do that, then of course the contributions should be anonymous.
And then, let’s look at that headline again:
A Harvard Professor Doubles Down: If You Take Epstein’s Money, Do It in Secret
Okay: You’re on the Jury.
Who do you find for?Report
I’d hope that Lessig would learn an important lesson about what happens when you take someone’s remarks out of context and retail them around the entire media discussion ecosystem with inappropriate interpretation.
But, y’know, he doesn’t seem like a lesson-learning kinda dude.Report
I think that there are a lot of lessons that are going to be learned around this sort of thing.
One of the wacky things is that this is yet another Epstein issue. If “the Media” did its job on covering this particular story (and not the “covering with a pillow until it stops breathing” version), I’m not sure that we’d be… well, here. I don’t know where we’d be but we sure as hell wouldn’t be *HERE*.
He’s going to Streisand himself and goodness knows how many others.
I mean… *I* think the lawsuit is a good idea.
But not because I think that the headline really distorted his point beyond all recognition or anything like that.Report
I look at the if and I see a conditional. NYT might get away with it if it printed everything after the column. The bit that irks me is about Doubling down. What is he doubling down on? that universities should take epstein’s money?Report
The update to his original was the double down?Report
I believe the “doubling down” refers to how Lessig came back the Wednesday following the Sunday he published his essay to restate his point that, seriously, he said “*IF* you take the money, you should do it anonymously”.Report
I mean, that’s kind of another theme of our times, that the response to critical accusations is not “how dare you bring such vile and unsupported smears against my pristine nature”, but rather “how dare you poke around and dig up these dirty things that I did, you muckraker“.
It’s what happens when you see the Death Laser turning around and starting to point in your direction. You try to convince people that, no, all along firing the Death Laser was a bad thing, an act of the basest immorality, and it didn’t matter that the Content-Specific Target Filters accepted you as a target because that isn’t the point, it doesn’t matter that you fired the Death Laser in the past because we are talking about right now, andBZZZZZRRRWWWNNTTTTTReport
“That’s what I said but it wasn’t what I *MEANT*” is something that all of us have said.
I’ve got some sympathy for it!
That said, we’ve kinda got a grand tradition of noticing people saying things at this point.Report
Well. First, I’m entirely on board with “well that wasn’t what I *MEANT*” but Lessig and people like him have made careers out of replying “well yeah it was what you meant, I think”.
Second…he isn’t, really, saying “that’s not what I meant”. He’s saying “you’re saying this thing that I said is bad, but it would only be bad if *I* was a bad guy, and I’m not, therefore it isn’t.” (along with the aforementioned “and fuck you very much for finding this thing I said and telling people I said it”.)Report
I admit. I don’t know enough about Lessig to know exactly what he’s famous for doing/arguing. I know he ran for president in 2016 on the platform of “If elected, I will change how elections are funded and then immediately resign, leaving my VP in charge of the country!”
No one signed up willing to be his VP and he dropped out.
And if he hadn’t done that, I wouldn’t know a dang thing about him.Report
What harm to Dr. Lessig followed this headline? The suit against Elon Musk calling someone a pedophile was dismissed because the offended individual, and I agree that he was besmirched, couldn’t show material harm. I am not sure that I understand the Musk dismissal correctly, but it makes sense to me that you can’t drag people into court without suffering something more than hurt fee-fees.Report
Two points: First, in Musk’s case there was a genuine issue of whether he was making a serious accusation of pedophilia, which would be defamatory, or just using the term “pedo guy” as a synonym for “creep,” which is just general assholery and abuse. A jury could reasonably have come to either conclusion. I didn’t pay enough attention to the evidence and had no way to judge general credibility, so I don’t have an opinion on whether the jury got this right or wrong. It was their call, and it wasn’t obviously wrong, though if I had sat through the trial I might have voted differently.
Second: For certain kinds of defamation cases it is necessary to show what are called “special damages,” concrete, definable damages other than (or more likely, in addition to) hurt feelings, but taking the “pedo guy” statement as an accusation of pedophilia, no “special damages” are required. Emotional harm, or hurt feelings, is enough.
None of that is to deny that a jury presented with a plaintiff who could not show more than hurt feelings (for example, proof that a number of people took the accusation seriously and believed it) might be inclined to let a technically liable defendant skate. Indeed, I suspect that the lack of evidence of damage might have affected the jury’s decision on whether “pedo guy” was a serious accusation or just abuse.Report
While I think a lot of the issues were argued to the Jury and made news, one of the jurors later said that the issue for them was that the specific tweets complained about never mentioned the plaintiff by name. This was the second element to be decided according to the instructions they received from the Judge.
It sounds like there was circumstantial evidence that the tweets were about the plaintiff, otherwise I suspect the Judge would have dismissed the case, but the plaintiff’s attorneys, according to the Jury Foreman, didn’t focus on the tweets, but on trying to ramp up their emotions.Report
That sounds plausible. I wouldn’t be surprised if all the jurors agreed on the ultimate result but some had different reasons from the others.Report
What harm to Dr. Lessig followed this headline?
This is a great freakin’ question.
I think that the answer is something close to what Duck gets into above. The harm done was an amplification of what Lessig said.
I think that Lessig coming back and adding additional clarification on Wednesday indicates that he was not prepared for the general response to his essay… and then, when the NYT said “HEY LOOK AT WHAT THIS FREAKIN’ GUY SAID!” and more people looked at it and saw it, the harm that he did to himself was amplified. I mean, if he was uncomfortable with the response from the people who read him all the time and are inclined to read his stuff with the attitude of “Oh, this is Larry Lessig, a guy operating at a huge level of abstraction”, I’m sure the response of the people who had never heard of him was something that presented to Larry Lessig as “harm”.
And now the question is whether pointing at this freakin’ guy constitutes “harm”. (See also: Adria Richards, Justine Sacco, Vince Vaughn.)Report
I think Richards and Sacco were harmed, but not plausibly defamed?
But they can point to, like, the jobs they lost as evidence of that harm.
Lessig maybe had some more people think he was an idiot (though talk about diminishing returns).Report
I think the question someone asked Popehat is interesting, but here… like… he actually said what they said he said. There might be cases where the headline would be misleading enough to make the fact that the important context being behind a paywall would make a difference, but this isn’t one of them.Report
he actually said what they said he said.
Truth is one heck of a defense against defamation, that’s for sure. In the US, anyway.Report
1) The second half of the headline is accurate to the best of my parsing. The first half of the headline and the lede are deeply wrong, certainly *morally* wrong, and shouldn’t have made the paper whether or not it’s actionable as libel (IANAL), and if I were the editor or reporter who let that come out in that phrasing I’d feel really fucking guilty for a really long time;
2) The guy is a victim of child sexual abuse dealing with (again AFAICT) his pain and suffering over having not prevented the enabling of such by *his dear friend* Ito more effectively when he works so hard to combat it, and to combat abuses of power more generally, in many other ways;
3) I don’t like the feeling of being worried he’ll sue me for writing this list, that strikes me as a problem, but I don’t actually think he would since he seems real clear on the difference between me as a private individual and a big corporation like the New York Times;
4) Again, this dude has spent his life dealing with the aftermath of severe abuse and now is embroiled in a very public pedophile scandal in which his flaw lay in perfectly understandable self-insulation from the very worst of what it meant. (To my similarly victimized eye the whole line about how you can’t really *know* that Epstein was profiting from his enabling of other people’s crimes given his connections to those other people reads as some continuing self-insulation which seems real real understandable under the circumstances.)
Why anyone has anything other than compassion for him (except maybe whatever NYT folks have to manage the lawsuit and AREN’T their overpaid lawyers who handle this kind of stuff from less well-positioned people with way less of a point, all the time, so whatever it’s their job…..
That part – that lack of compassion for Lessig – is a deep mystery to me.Report
I think we can have compassion for someone’s past hardships while still concluding that what they’re doing is a bad idea.Report
@densityduck Absolutely. I meant to imply that with #3. I don’t think it’s a good idea. For one thing, completely coldly and calculatingly, this kind of petty suit and some of the content of his posts tarnish the heck out of his (imo fairly virtuous) brand. I feel bad for him *partly because* he’s clearly not making great decisions right now. If I thought it was a *good idea*, I wouldn’t think compassion an appropriate response to it.
“anything other than compassion” is a statement about proportionate response, albeit a slightly hyperbolic one, not a claim to see into people’s hearts. People are responding with no visible compassion and tons of visible crankitude and etc.
*shrug* I’m not telling anybody what to do anymore and thus am also free to respond how I want to things? To me, as a victim of these things, it bugs me to see a post here and tons of comments, plus most of the coverage elsewhere, be so callous about what happened to the guy in their rush to condemn him for a relatively minor grief-induced error.
He’s not going to *win*. I *like* most of what Lessig does (not this, but the EFF stuff and even some of the congressional stuff) and he almost never wins. Especially not here where his usual allies are likely to also see it for what it is, a grief-induced error.Report
Lessig has offered additional clarification:
He’s got an entire thread but here’s the nut:
Report
I admit: I did not see this coming.
Report
Court precedent in this area (NY Times v. Sullivan) makes newspapers arrogant spinners of mythology. The media like to talk about how they are an integral part an informed electorate, but they modesty dribble out a correction in a time and prominence unequal to their initial falsehoods. I don’t know if there will be more lawsuits, but I think they are dangerously courting with the case that results in changing their legal privileges. Justice Kagan has written critically about this precedent.Report
Justice Kagan: “And this contrast raises a final question about the unintended effects of Sullivan: Is it possible that Sullivan bears some responsibility for a change in the way the press views itself and its conduct — a change that the general public might describe as increased press arrogance?”
Link(pdf)
Incentives matter.Report
Huh. Makes an interesting pairing with the Gawker case.Report
Paywalls and clickbait headlines aren’t exactly new, are they?
I mean, in the dead tree days, newspapers hung on the vendors rack, and all you could see was the headlines, unless you paid money to buy the paper.
And I’m wondering if maybe the actual clickbaity websites woudn’t be an easier target; e.g. “Jennifer Aniston Reveals Her Terrible Secret!”Report