Lawrence Lessig and Clickbait Defamation

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Jaybird

Jaybird is Birdmojo on Xbox Live and Jaybirdmojo on Playstation's network. He's been playing consoles since the Atari 2600 and it was Zork that taught him how to touch-type. If you've got a song for Wednesday, a commercial for Saturday, a recommendation for Tuesday, an essay for Monday, or, heck, just a handful a questions, fire off an email to AskJaybird-at-gmail.com

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29 Responses

  1. Avatar DensityDuck
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    says:

    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

  2. Avatar Murali
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    says:

    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

    • Avatar Jaybird in reply to Murali
      Ignored
      says:

      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

      • Avatar DensityDuck in reply to Jaybird
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        says:

        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

        • Avatar Jaybird in reply to DensityDuck
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          says:

          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

      • Avatar Murali in reply to Jaybird
        Ignored
        says:

        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

        • Avatar Ozzzy! in reply to Murali
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          says:

          The update to his original was the double down?Report

        • Avatar Jaybird in reply to Murali
          Ignored
          says:

          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

          • Avatar DensityDuck in reply to Jaybird
            Ignored
            says:

            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

            • Avatar Jaybird in reply to DensityDuck
              Ignored
              says:

              “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

              • Avatar DensityDuck in reply to Jaybird
                Ignored
                says:

                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

              • Avatar Jaybird in reply to DensityDuck
                Ignored
                says:

                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

  3. Avatar Mark
    Ignored
    says:

    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

    • Avatar CJColucci in reply to Mark
      Ignored
      says:

      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

      • Avatar PD Shaw in reply to CJColucci
        Ignored
        says:

        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

    • Avatar Jaybird in reply to Mark
      Ignored
      says:

      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

      • Avatar pillsy in reply to Jaybird
        Ignored
        says:

        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

  4. Avatar pillsy
    Ignored
    says:

    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

  5. Avatar Maribou
    Ignored
    says:

    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

    • Avatar DensityDuck in reply to Maribou
      Ignored
      says:

      I think we can have compassion for someone’s past hardships while still concluding that what they’re doing is a bad idea.Report

      • Avatar Maribou in reply to DensityDuck
        Ignored
        says:

        @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

  6. Avatar Jaybird
    Ignored
    says:

    Lessig has offered additional clarification:

    He’s got an entire thread but here’s the nut:

    Report

  7. Avatar Jaybird
    Ignored
    says:

    I admit: I did not see this coming.

    Report

    • Avatar PD Shaw in reply to Jaybird
      Ignored
      says:

      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

      • Avatar PD Shaw in reply to PD Shaw
        Ignored
        says:

        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

    • Avatar DensityDuck in reply to Jaybird
      Ignored
      says:

      Huh. Makes an interesting pairing with the Gawker case.Report

  8. Avatar Chip Daniels
    Ignored
    says:

    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

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