On suing the Times

Lessig
Lessig
Jan 13 · 4 min read

Today I filed a defamation action — call it a “clickbait defamation” action—against the New York Times.

Here’s the skinny:

In September, I wrote an essay on Medium attacking the scapegoating of Joi Ito by many—including most prominently, Ronan Farrow and MIT—because of wrongs committed by Joi with the knowledge and approval of MIT. To its credit, shortly after the essay was published, MIT openly acknowledged that it had known and approved of Joi’s fundraising from the criminal Epstein. That would—or, in my view, should—have kept the attention of reformers on the institution as well as on the individuals within the institution.

Shortly after MIT acknowledged its complicity, the New York Times published a piece based on an interview conducted shortly after my Medium essay was published. This was the title and lede:

This title and lede are false. Yet I’ve found — in the months since this was published, facing the endless attacks I get in person and online—that the challenge is to focus anyone’s attention enough long to see just why they are plainly false. Offering a tweet-length proof that a perfectly tweetable headline is flatly false is not, it turns out, simple.

Here’s one passage from the relevant essay that might trigger the right mix of puzzled attention:

the point of the paragraph beginning “But what I — and Joi — missed” is to say that even if you take Type 3 and you take them anonymously, it is a mistake to take this particular type of Type 3 contribution — precisely because of the pain it would cause if it were eventually revealed. Maybe you can take the money of a tax fraud, again, if and only if anonymous. But the kind of pain triggered here means that that general rule should not apply here. Which again is why I said I believe it was a mistake to take this money, even if anonymous.

MY WORDS at the end here

it was a mistake to take this money, even if anonymous

should be read against the headline from the Times

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

And MY WORDS beginning at:

it is a mistake to take this particular type of Type 3 contribution — precisely because of the pain it would cause if it were eventually revealed.

should be read against the lede from the Times:

It is hard to defend soliciting donations from the convicted sex offender Jeffrey Epstein. But Lawrence Lessig, a Harvard Law professor, has been trying.

My essay was clearly not “defend[ing] soliciting donations” from Epstein. My essay said—repeatedly—that such soliciting was a “mistake.” And more importantly, it was a mistake because of the kind of harm it would trigger in both victims and women generally. That’s the reason why this kind of “Type 3” contribution—you’ll have to read the original essay to unpack that; that’s not tweetable here—was wrong.

So: I did not defend taking money from Epstein. I didn’t say it was ok to take money from Epstein “if in secret.” I said it was wrong to take Epstein’s money, “even if anonymous.” The assertion—in the tweeted headline and lede—to the contrary is thus flatly false.

I love the Times. I know that journalism is hard, and deadlines are short. So I when I asked the Times to correct these two false and defamatory statements, I fully expected they would, and I fully expected that would be the end of it. And I so I was astonished when they not only refused to fix the mistake, but doubled down on the absurdity of their justifications. For example: Because I was supporting Joi, I was therefore supporting what Joi did. Wow. So if the Times criticizes the assassination of Suleimani does that mean the Times supports what Suleimani did? I was criticizing the scapegoating of Joi. I was not supporting what Joi did.

The incentives of journalism in the Internet age are clear—drive eyeballs to your articles, so you can drive advertising revenue to your bottom line. That creates an obvious incentive to tabloid-ize the headlines. Flashy and fun is harmless. False and defamatory is not.

I still can’t believe truth alone was not a sufficient incentive for the Times to correct its false statements. But so be it. A suit like this might complement the incentives for truth.

Lessig

Written by

Lessig

law professor, activist.

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