Mike Masnick worries I’ve “lost the plot” because I joined an amicus brief about whether AIs should get patents. I’ll leave the merits of that argument to the briefs. It’s another bit of Masnick’s post that I want to flag here.
Mike’s essay begins:
This statement — that I filed “a very clear SLAPP suit” — is just flat-out false. And to falsely assert it now, long after ordinary souls have forgotten the context, and thus triggering hate into my inbox, is just not cool.
A “SLAPP suit” is a “strategic lawsuit against public participation” — essentially, a lawsuit without legal basis, launched to harass someone or to stop them from speaking. I had filed the suit said to be “a very clear SLAPP suit” against the New York Times in Massachusetts based on its refusal to correct the title to an article online that was plainly false and defamatory. Under Massachusetts SLAPP law, the Times would have had no right to challenge the filing. Under New York SLAPP law, the Times could have filed a SLAPP action, but that action would obviously have failed: My suit certainly had “a substantial basis in law or is supported by a substantial argument for an extension … of existing law.” N.Y. C.P.L.R. 3211(g)(1).
I leave to below the fold in this essay to explain just why both claims are true. But because they are true, not only was my suit not a “SLAPP suit,” but it was obviously not “a very clear SLAPP suit.” The statement is false. Given the response it has triggered, it is also defamatory.
So fix it, Mike. I welcome your criticism of my work. I learn a great deal from it, as I learn from your criticism of others. Your voice is clear and uncompromised — and therefore rare.
But lose the Bridgerton “Dear Reader” style. Your audience is smart enough to evaluate the strength of your arguments without your beginning your essays by locating the target in moral space. Here, for example, is how you began an essay about Cass Sunstein, certainly one of the most important free speech scholars of our time:
Not only is this an embarrassingly simplistic understanding of what Sunstein said, it also just weakens your piece. Make your claim, and defend it. Drop the “Dear Reader, this is a horrible person I’m going to tell you about, so listen closely, and condemn appropriately.”
And three years after a disagreement with me, just let it go.
Below the fold:
What follows is a simplified account of why Masnick’s claim is obviously wrong. The filings and writing about the case are archived at Against Clickbait Defamation.
Clickbait Defamation
My case was triggered by a headline in an article the New York Times published. The article itself was fine — subtle and fair. The headline of the print edition was fine as well—subtle and fair. But the headline of the online edition was false and defamatory — and the refusal to correct it after fair notice constituted the “actual malice” that NYT v. Sullivan should demand.
(1) That it was false:
The article was about an essay I had published on Medium about MIT’s scapegoating of Joi Ito. MIT had led the press to suggest (Ronan Farrow most directly) that Ito was some kind of rogue within the MIT universe. I knew that to be flatly false, and that every wrong that Ito was rightly charged with was a wrong attributable to MIT as well.
In the course of making that argument, I had distinguished among four types of donors to non-profits like MIT: (1) the innocently wealthy, like Taylor Swift or Tom Hanks; (2) the controversially wealthy, like Google; (3) the criminals who were wealthy because of their crimes (like a tax cheat), and (4) the wealthy who were criminals but who committed crimes like Epstein’s.
My essay argued that universities should find as much type 1 money as they could; I said I didn’t have problems with type 2 money (beyond the obvious issues of institutional corruption); I said type 3 money should only be taken if the giver was anonymous (universities should not be in the business of laundering reputations); and I said universities should never take type 4 money, even if anonymous.
Why the difference between type 3 and type 4? Because the wrong Epstein had done to so many would cause even more harm at a university that he supported—if discovered—since so many women (and men) have been victims of sex abuse. For them to learn that their school or program or department was funded by a rapist would likely retraumatize them. Epstein was a criminal, no doubt. But his crimes were relevantly worse, and that difference made it wrong for universities to profit from a relationship with him. (And don’t think MIT was alone in this. Here’s a piece I wrote about Harvard’s crimes.)
Again, the Times article (based on the Medium essay and an interview) fairly reported this complexity. That complexity, I imagine, is what led the headline writer for the print edition to title the piece:
That’s a great question (and a fair summary of what I had written). But that title was not sexy enough for the online edition. Its headline was as follows:
So astonished was I when I read this headline that I couldn’t actually believe it was written by someone who had read (carefully at least) the article it titled. I reached out to the writer. I was then even more astonished to discover she had had a hand in drafting the headline. (I’ve been told that at the time, there was a winners board at the Times, reporting the social media shares of articles. Surprise surprise.) As I said to her then, I was astonished because my piece had expressly said a university should not take Epstein money even if anonymously. Here were my words summarizing that argument:
Her defense was this: because (a) I had said that it was ok to take a criminal’s money so long as it was anonymous, and (b) Epstein was a criminal, it was therefore fair for the headline to say that I was saying (“[Lessig] doubles down”) (c) it was ok to take Epstein’s money so long as anonymous.
That logic is obviously not logic: If I tell my teen-approaching-the-drinking-age, “Always drink alcohol in moderation, but never drink rubbing alcohol,” would it be “fair” to report: “Father tells son: drink rubbing alcohol in moderation!”?
Obviously not. The statement that I was “doubling down” by recommending that a university take Epstein money by taking it in secret was therefore just flatly false.
(2) That it was defamatory:
The second question under NYT v. Sullivan is whether the false claim was defamatory. And here, you need to remember my position and profession: At first, I thought I would just ignore it, imagining it would go away. But then students — especially female students—began to make it clear that they had seen the false statements, and had credited them as true. (After all, it was the Times). “I’m so disappointed in you,” one especially brilliant woman told me. “Why?,” I asked, not knowing what she was referring to. “Because you would defend the idea of taking money from Epstein! How could you be so clueless, and hurtful?”
With that one exchange, I knew that every time I stood before a class, a significant portion would be seeing me as the guy who defended taking money from Epstein. And for those who themselves had suffered sex abuse, I knew that experience could be traumatizing.
That realization led me to work hard to get the Times to correct the online title. There was nothing it could do about the tweets it had sent, or the retweets from those tweets. But it could at least change the Google Search results, which at the time ranked me as the leading defender of taking money from Epstein.
But the Times refused — again, and again. I went to the very top; I was told that because I had said a tax fraud’s money could be taken if anonymous, it was fair to say I had said Epstein’s money could be taken if anonymous— even though I had explicitly said precisely the opposite.
My job, that student, the inevitable triggering of further trauma in others then drove me to seek some way to get the headline corrected — or at least to demonstrate that I was fighting that claim as firmly as I possibly could, lending credence to my claim (to the few who would listen) that the charge was just false.
That necessity mothered the idea of a lawsuit.
Yet a lawsuit could only be filed with integrity if I could get over the most important hurdle of the NYT v. Sullivan standard: actual malice. This is the only interesting legal aspect of the case, and one which I hope gets addressed by some court, some time soon.
(3) That this was “actual malice”:
As anyone who knows anything about defamation law knows, “actual malice” does not mean actual malice. It means instead knowing the falsity of what you are publishing, or adopting a reckless disregard of the truth.
That standard makes perfect sense. The Press needs substantial freedom to get it wrong, while in pursuit of getting it right. Every mistake cannot be a federal case.
But the interesting question in my case was when do you have to know that something is false? Just as copyright law, modified by the Communications Decency Act, says a user-generated site is not liable for copyright infringement merely because infringing material is posted to the site — so long as it has a procedure allowing copyright owners to give notice, and based on true notice, a process for taking the offending material down — so too do I believe a paper, even a digital paper, should have no liability for publishing a headline that proves to be false and defamatory unless, at the time they initially published it, they knew it was false or was reckless about whether it was.
But the issue my case pressed is whether that initial immunity was permanent. The difference between the Internet and the newspaper business New York Times v. Sullivan had protected is that in 1964, a paper was published one day, and became fish wrap the next day. Today, however, an article is “published” every time someone accesses it, or every time Google links to it. “Publishing” is continuous, which raises the important question of whether the actual malice question is asked only at the time of initial publication or whether it continues to be asked after the initial publication.
This was a bit of what was at issue in the Dominion v. Fox case. Certainly, early in the reporting about the alleged fraud of the 2020 election, Fox should have been protected absolutely in its reporting about what was being said. But at the point it was clear that the “reporters” themselves believed the claims were false, the continued publication changed from fair to “actual malice.” Obviously, that line is not an easy one to draw. But that the line is difficult does not mean there is no line.
My claim against the Times was thus not that they had published the title originally; it was that despite my pointing out both the defamatory error in the title, and them knowing they had had a radically different title in the print edition, they continued to leave the false and defamatory speech as it was — because, after all, it was getting tons of clicks!
The title was clickbait. But “clickbait” itself is not the problem. The problem is clickbait that is defamatory — at least when the publisher does nothing to correct it after the error has been fairly shown to them.
After I filed the lawsuit, the Times retained outside counsel. After that counsel gathered its evidence—including the accurate but radically different title from the print edition—it corrected the title online. After it corrected that title, I spent many hours (including many hours of my friends’ time) trying to decide whether to continue the suit or not. My primary objective had been achieved. But to settle would mean missing getting an affirmative finding by a jury that the statements were (1) false, (2) defamatory and (3) actual malice. And it would not resolve the question of whether there was a different standard for ongoing publication rather than a one-shot publication.
But settling would save tons of legal fees. And as much as I expected that courts would ultimately recognize the difference that we were arguing for, I also realized that this Supreme Court is dangerous on these questions. So I accepted the incomplete victory of the Times correcting its headline and voluntarily dismissed the case.
One might well believe one should never sue a newspaper. I get that. I don’t agree with that. (See, e.g., Dominion v. Fox News).
One might well believe one should never sue a newspaper unless the falsity is clear and the harm is significant. I get that and I do agree with that — at least after the paper has been given a chance to correct its mistake.
If you don’t think what the Times published is false, ok, that’s interesting. About you.
If you don’t think the harm was significant, ok, but then you don’t know anything about teaching in 21st-century America.
Either way, it’s perfectly fine to think I was wrong to do what I did. It’s a free country (outside of Florida and Texas at least). Think what you will.
But just don’t falsely state that what I did was a “very clear SLAPP suit,” even in a Bridgerton blog. It was not. And if you’re a defender of free speech, then you should believe that false statements should be corrected.
