Wed. Jan 22nd, 2020

Dear Larry Lessig: Please Don’t File SLAPP Suits

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:
This is legally preposterous.
This will cause real harms for those he sued.
This creates a massive chilling effect on a free press.
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.

But for heaven’s sake, read the headline! “IF You Take Epstein’s Money, Do It in Secret.”

IF!

Which is *exactly* what Lessig writes in his Medium post!

(For clarity: Lessig’s post describes Epstein’s money and similar money as “Type 3” money.) pic.twitter.com/ODc5zTxSQ9

— Joshua Benton (@jbenton) January 13, 2020

Also from Lessig’s piece:

“I believe that if [colleges] 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.”

AGAIN THAT IS THE HEADLINE pic.twitter.com/OreKg1WHjj

— Joshua Benton (@jbenton) January 13, 2020

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.
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