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Lessig v. NYT: Very. Good. News.

Last week, the New York Times revised a headline, changed a lede, and acknowledged the misimpression — they call it an imprecision—in an article about me that had brought tons of awful into my life. So this is really great news.

Last September, the New York Times published an article titled as follows:

Headline: A Harvard Professor Doubles Down: If you take Epstein’s money do it in secret
Headline: A Harvard Professor Doubles Down: If you take Epstein’s money do it in secret
archive.org

The lede didn’t get any better:

Lede: It’s hard to defend donations from Epstein, though Lessig has been trying.
Lede: It’s hard to defend donations from Epstein, though Lessig has been trying.
archive.org

The article triggered tons of hate — and rightly so. Few could believe that anyone could “defend soliciting donations from the convicted sex offender Jeffrey Epstein,” or that anyone would argue that “if you take Epstein’s money, do it in secret.” Outrage filled my inbox and social media feeds. People literally stop me at work or at events to yell at me for my ignorance and callousness.

But of course, the headline and lede were just false. I had not “defend[ed] soliciting donations from … Epstein.” Indeed, in the essay that had triggered the Times to interview me, I had repeatedly stated that it was a “mistake” for MIT to take money from Epstein. And I had written explicitly that “it was a mistake to take [Epstein’s] money, even if anonymous.” To repeat, this time using the fancy formatting tricks of Medium to make it perfectly clear, again, as I had written,

It was a mistake to take [Epstein’s] money, even if anonymous.

The headline and lede had been carelessly crafted to trigger interest in the story — aka “clickbait”—with too little regard for whether together, they still conveyed a truth.

After the article was published (as I’ve recounted here and here and described in the beginnings of a podcast here), my first reaction was to believe it was a simple mistake. I wrote the author, somewhat playfully, without anger or demands, suggesting she might want to fix it. She didn’t. Then as an effort to staunch the hate, I wrote a response on Medium. The author was unhappy I had written as I had; we spoke on the phone; she promised to have her editor call me; no one did. I then wrote Dean Baquet, again asking the Times to correct the mistake. Baquet had the managing editor respond. She defended the article, and insisted that because I had defended Joi Ito, I was defending taking money from Epstein.

This was an extraordinary mistake for the Times to make. The Times was confusing

(A) my defending Joi Ito — against his being “scapegoated” for actions that MIT had known, directed and approved of

with

(B) my defending the actions that Joi Ito had taken.

I was doing (A). I was certainly not doing (B) — as the article expressly criticized the actions that Joi had taken.

This confusion was surprising, for I am certain that this is a position the Times is in all the time. If the Times opposed the death penalty for a convicted rapist, would the Times be defending rape? I certainly wouldn’t think so. And I would certainly think that anyone who said so was saying something that was flatly false. Yet that was the nub of the Times’ most substantive defense of this headline and lede. I had opposed the scapegoating of Joi, so in the eyes of the Times, I was defending the donations that Joi had secured.

At this point, my friends said, “let it go.” I wish to God that was possible. As I explained most expansively in a podcast, it was not possible. For very ugly personal reasons, I could not let it go (listen to the podcast). And for very obvious professional reasons, I would not let it go either: I am a teacher. Many of the students I teach have been victims of abuse or have suffered from a culture of abuse. If those women (and, sometimes, men) see me as someone who would “defend soliciting donations from” an abuser, they would not be able — indeed, they should not be able— to hear me again. Whether the whole world who had seen the false headline would know or not, they at least could come to see: That despite the personal cost, and emotional burdens, I was not going to leave this falsity unchallenged.

So in January, I filed a lawsuit against the Times. That lawsuit too, unsurprisingly, triggered tons of anger. (Though also a bunch of heartfelt support. I love the Times. I hadn’t quite realized how many don’t.) Suffice it that when I entered this, fight, I knew full well that in the end, even if I prevailed in the (which, given the facts, I believed I would), the costs to me would exceed any financial benefit. But I didn’t file the lawsuit for the net economic return. I filed the lawsuit because I could not, personally and professionally, leave the lie unchallenged, and because it would be a good thing if the law regarding clickbait were more responsive to the reality of the Internet.

Here then’s the surprising and good news: Last week, the Times changed the headline and lede. And it added a note to explain its correction. The new headline is now as follows:

New Headline: What are the Ethics of Taking Tainted funds?
New Headline: What are the Ethics of Taking Tainted funds?
perma.cc

And the lede now reads:

Lede making clear I had defended a person, not his taking any money.
Lede making clear I had defended a person, not his taking any money.

The explanation for the change is as follows:

Editors note acknowledging their “imprecisely” conveying views of Lessig.
Editors note acknowledging their “imprecisely” conveying views of Lessig.

There are so many layers of good wrapped into this one change, the most important of which is not even visible. This change is not a settlement of the lawsuit. There is no quid pro quo — they say this, and I go away. It was not negotiated — if you say this, then I’ll go away. Indeed, what’s been wonderfully surprising to me at every stage in this lawsuit (and surprising in a good way) is the ethics that the Times has insisted upon. We did discuss what needed to happen for the case to be settled. But the Times insisted any agreement they made, they would make public. And that ethical commitment to perfect transparency constrained them perfectly. So rather than a settlement, this change is simply the Times coming to recognize that indeed, the “imprecision,” as they put it, had to be fixed. So they fixed it, and then they shared the correction with my lawyer.

There is therefore an important integrity within that correction. But it is useful to flag again the source of the original compromise.

For notice from where the new headline was drawn:

It is the headline from the print edition of the article, when it first appeared.

And now contrast that headline to the original headline online:

The difference between the two — beyond one being true and the other false — is obvious: click-ability. The original online headline is written to invite clicks. It is written to be shared in social media, and from that sharing, written to drive traffic to the New York Times. The print edition headline is just true.

It’s for that reason that we framed this case as a case about “clickbait defamation.” No doubt, there’s nothing inherently wrong with clickbait. And no doubt, given the economy of journalism, it is not going anywhere anytime soon. But the challenge now is when the clickable titles become defamatory: What procedure or check does the paper put in place then?

This is a new risk because the technology of publishing builds the incentive to titillate into the platform. The Times uses the amazing Chartbeat technology, which allows authors to watch in real time as their articles are shared across the web. I wish I could afford that technology. The genius behind it is exactly that — genius. Here’s a clear and simple way for publishers to understand what’s working and what’s not. And in a time when newspapers especially need every advantage they can muster to sustain themselves, it is a brilliant addition to the arsenal of persuasion.

At least, if balanced by an effective process to correct mistakes, or “imprecisions,” especially those that are in their nature defamatory. Sure, headlines must be written quickly. But the authors of print headlines can afford to be boring — and what could be more boring than “what are the ethics of taking tainted funds?” By contrast, the authors of online headlines cannot afford boring—and what could be better than a Harvard professor defending anonymous gifts from a sex offender!

The Times intended to defend itself by arguing that the legal test is the truth of the headline and the article read together. But as precedent in this district makes clear, in the age of the Internet, that’s not the right standard, because those two things don’t always run together. The headline and lede have a life of their own, and unlike in a print publication, many of the people who get the headline and lede have no access to the article. Because as awful for truth and right thinking as this is (and I mean that quite genuinely), not everyone is a subscriber to the New York Times, and many who are not would have hit their free article limit. In the Internet age, the article cannot defend the headline, when the headline is published separately from the article, and most of the defamatory impact comes from that separate publication.

What the Times did last week is therefore a Very. Good. Thing. And I am happy to be confirmed in my original view of that great institution. Somehow, I knew that at some point, they would come to this place. That is my bias speaking, no doubt. But that bias built confidence.

That it took 200 days and the filing of a federal case, however, is less good. There was no reason to dig in and defend this “imprecision” — especially when everyone close to the story, or to me at least, knew precisely why the “imprecision” here would be so personally harmful.

Far better would be a process by which corrections to social media publications could be made quickly. Not for every quibble or every whine by the snowflakes of our day. But at least when an imprecision so obviously causes personal and professional harm, the response should be more responsible. If I were a copyright, the law would say that the online publisher has but a short time to fix an infringement or face significant legal penalties. The rules defending real people should not be anything less.

This is an age when social media can make — or break— a reputation quickly. Even with a correction, the defamatory harm will not be completely erased. But what the Times has done here is right. Because done asking nothing in return, it is also an act of integrity.

Let us celebrate at least that.

Written by

law professor, activist.

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