Today I’m withdrawing my lawsuit against the Times, after they corrected their story online. What follows is the thinking behind that decision, and what comes next.
Exactly three months ago today, I filed a lawsuit against the New York Times for defamation—I called it “clickbait defamation”—based on a story published in September 2019.
The story was based on an interview. The interview was triggered by an essay. The headline of the print edition for the story was accurate, if slightly boring:
The headline and lede of the online edition was, well, let’s say, not boring:
That headline (and the lede that followed it) then forced me to spend way too much of my life showing just why both were flatly false and defamatory.
The defamatory bit is obvious. The false bit should have been obvious.
The essay had outlined a bunch of funding principles for a non-profit, like a university. One was that if you decide to take money from scumbags, at the very least, you shouldn’t launder their bad name. That rule would seem to apply to Jeffrey Epstein and MIT. It would seem to suggest you could take Epstein’s money, but only if anonymous. I explained why it did not apply to Epstein. Indeed, I said explicitly:
It was a mistake to take [Epstein’s] money, even if anonymous.
The headline ignored the exception—bizarrely, as if somehow I was not allowed to make an exception to a rule that I myself had made. If I told someone turning 21, “if you drink alcohol, do so in moderation — but never drink rubbing alcohol!,” would it be true to say, “Harvard Professor Doubles Down: If you drink rubbing alcohol, do so in moderation!”?
Answer: No.
I’ve told the story of trying to get this story corrected. That’s not my aim here. I’ve told the story of the Times correcting the headline and lede last, and acknowledging the imprecision that they had created. (Yay New York Times!). That’s also not my aim here either.
My aim here is to report that the lawsuit has been withdrawn—as I explained, none of this was negotiated and there is no settlement—and to reflect, briefly for now, on that experience.
I knew going into this that suing the Times was going to earn me hate. I respect much of that hate. Journalism is threatened and vulnerable and essential. We should do whatever we can to protect it and make it less vulnerable—again, because it is essential.
Though I’ll confess, I was surprised at the intensity in some. I’m a lawyer. I believe in the law. I make lawyers for a living. And I think the law is also threatened and vulnerable and essential (not for all, but for those who need it most). Yet when I hear about a lawyer being sued for screwing up someone’s case, I don’t take it personally. Indeed, I think such suits are a good thing—if they make lawyers work better. Even without a strong and constitutionally grounded principle of immunity—like the principle crafted for journalists by the Supreme Court in New York Times v. Sullivan (1964), that makes it extremely difficult for “public figures” to sue for defamation—I think such lawsuits can make the law work better. And I am generally against doctrines of law that immunize bad acts by even good people. I think the immunity granted to judges (practically absolute) is unjustified, as is much of the immunity secured to the police and other state actors. In general, it is my view that responsibility makes institutions responsible, and that if anything, we need more responsibility today, not less.
The institution of journalism resists this idea. I get it. I get why. New York Times v. Sullivan teaches why, perfectly. “Bo” Sullivan, the plaintiff in that case, a racist police chief from Montgomery, Alabama, was using the case not to get to the truth. He was using that case to destroy the Times, or at least to make it very costly for the Times or anyone else to cover the racial apartheid that he enforced. Lawsuits by powerful people are designed to intimidate. They’re intended to raise the cost on criticism. And no doubt—as astonishing as it is to recognize this, almost 230 years after America ensconced the First Amendment in its Constitution—our President uses lawsuits for precisely this reason.
But if I have any friends left in journalism, please see this: sometimes you give us no choice. Whether intended (initially) or not, sometimes we’re put in a place we cannot survive. And when there, whatever it costs, we have to fight to escape.
That was where this headline put me. There’s a raw and emotional account of why that you can listen to on a podcast. There’s a clinical and professional account that I have offered elsewhere, and repeat here: As a teacher, to be rendered as someone so oblivious to the harm that the Epsteins of the world impose is devastating to the work I do. Which means that if I wanted to continue that work, I needed at least the ability to say that this lie is a lie, and that I have done whatever I can to correct it.
I am very happy to have it now corrected. I hope it is not Stockholm syndrome to say that I am also grateful. Once the paper doubled down on its defense, I was convinced there was nothing—save a jury verdict—that would get it to change. I am happy I was wrong. No doubt, the harms have not been undone. Only a tiny fraction of those who formed an opinion based on that headline and lede will see the correction, or these explanations. No doubt, the vast majority will be left with the opinion they formed. And certainly the costs of even getting this far have created a debt that will take a long time to repay.
But the costs of continuing would also be huge. And the marginal benefit from winning would not. Decency should be met with decency. The Times was right to do what it did — with no promise of anything in exchange. That right inspires this return.
There remains, of course, the bigger issue—clickbait defamation. As I’ve said, I’ve got nothing against clickbait, or even the technologies that enable it. But we need a better way than federal lawsuits to remedy false and defamatory clickbait. I’m going to keep the website that I launched with this case alive, though remade (eventually). My case will be archived. I’m hopeful there’s someone eager to help to continue to raise awareness around the issue, and to encourage reform, who would take it over. lmk. And I’m hopeful that the Times would take a lead in setting a policy that others could follow: A kind of notice and correction, inspired by the notice and takedown of the DMCA, not always, and certainly probably not even frequently. But determined by people removed from the story, who ask not “is there some conceivable way that we could argue that this is true,” but instead, “is the impression that this is giving both true and fair.”
For we need more than all the news that is fit to print. We need fair print, done accurately.
Thanks to all who have weighed in on this, directly with me and not, supportive or not. The issue needed to be an issue. And thanks especially to the many friends who have offered support of every kind. You cannot know how important that has been, at every stage.
