Clickbait Defamation: On the careful reading of the New York Times editors

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

begins an article by Nellie Bowles, published in the New York Times, titled “A Harvard Professor Doubles Down: If you take Epstein’s Money, Do It In Secret.” Bowles and I had spoken for an hour on Tuesday. On Friday, she called to fact-check the article she had written. The essay she fact-checked was substantially different from the one that got published.

Specifically, it wasn’t flat out false.

Here is what I wrote:

Because the truth is that — as I thought about it then — if Joi believed as he did after real diligence, I didn’t believe he was wrong to take Epstein’s money anonymously.

That belief — of mine — was a mistake, for reasons that I’ll return to below.


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. If you have not been abused, if you have not experienced that sense of being used and helpless, that may well not be understandable to you. Maybe. But I believe that empathy is a basic human emotion. And I believe that all of us should recognize the pain that only some of us can feel in seeing the institutions around us painted with the names or wealth of those who do that wrong.

Joi should have recognized that risk. He had it in him because he had come to talk to me about it at the start. He knew people could be hurt by just knowing the facts. But he assumed they would not be harmed, because he assumed that they would not know the facts. No doubt, he had more confidence in confidentiality at the start than later on. But at the moment the wrong was initiated, he should have known that time bombs do not belong within the walls of great institutions. And he should not have brought this time bomb within the walls of the Media Lab.

He should have known that.

I should have known that. [emphasis added]


I am ashamed — ashamed — that I did not do for my friend the one thing I was uniquely qualified to do: I am ashamed that I did not let him see just how hurtful it was to imagine slime like Epstein living within the walls of MIT, even if hidden by promises of anonymity.

hatever else my essay from a week ago was doing, it was not my trying to “defend soliciting donations from the convicted sex offender Jeffrey Epstein.” Instead, the essay said taking money from Epstein was wrong. And whatever else, I was not arguing that “If You Take Epstein’s Money, Do It in Secret.” Again, the essay said taking money from Epstein — even anonymously—was wrong. The essay does not defend taking Epstein’s money in any way. So it is certainly not an essay by me trying to defend what I say is wrong.

It happens sometimes, maybe not a lot, but here the editor at the Times took truth and rendered it as completely false.

So what was my essay trying to do, if not “defend[ing] soliciting donations from the convicted sex offender Jeffrey Epstein”?

My essay is not defending. It is attacking. It is not arguing that Joi did something right. It’s attacking the scapegoating that was happening last week, after Ronan Farrow’s article made it seem as if (1) Joi was rogue inside of MIT and (2) Joi was somewhat strange for his having anything to do with Epstein. I never met Epstein, and given my past, I doubt I could have stomached any time with him, so I had no way to evaluate (2) (though spoiler alert — all of the reporting that’s going to happen about this story going forward will be about the extraordinary range of MIT luminaries who spent time with Epstein not because they were perverts, and not because they wanted his money, but because they found him interesting.)

But I did know that (1) was obviously false, and if anything angers me as much as pedophiles disgust me, it is scapegoating: Mistakes were made, but not by anyone in power; people should be punished, but not anyone who matters. I wrote what I wrote last Sunday to insist (1) Joi was wrong, (2) MIT was wrong, and (3) I was wrong about whether to take money from Epstein (why the latter you’ll have to read in the essay).

I wrote what I wrote last Sunday to say it was therefore completely wrong to let the consequences of this wrong fall wholly upon Joi.

Bowles and I did, on Friday, discuss the fact that a huge part of my motivation for writing had been removed by MIT the day before. She said she would reflect that in the essay. As I said in an addendum to my essay, on Thursday, MIT removed any ambiguity about whether, at the highest levels of that institution, the institution knew about the Media Lab’s raising money from Epstein. To his great credit, the President, Raphael Reif, has acknowledged that MIT knew of this fundraising and directed the anonymity. That critical progress was part of the essay she described to me. That it was progress — because it meant that the institution was not hiding from its responsibility—was something I was happy to celebrate.

Williams created Medium because he thought it would be a better platform to express complex ideas than the other platform he had helped birth, Twitter. I am sorry I have so completely failed to use the platform as he intended. Maybe my argument is clearer — and I certainly hope, less painful—on Twitter.

So at the bottom is the point, rendered as a Twitter thread. (Ah, Ev Williams, Medium doesn’t properly embed Twitter threads?) This is the last I intend to write about this. I have a job, I have kids, I have a gaggle of briefs due in the next two months. Time and reflection need to deal with the Joi story going forward.

do, however, expect to be writing more about what this tussle (with the Times, not Ito) really is. The New York Times is a great paper. It is filled with extraordinary people. I’ve had friends from the Times who were editors and reporters. It is, in my view, one of the great institutions in America.

But look at what this disagreement is really about: An editor at the Times tweaked a headline and lede to make a story more compelling. Indeed, very compelling. This essay about a blog post now sits high in the newsfeeds, because seriously, now it is really news. Who could believe it? A Harvard professor is trying to “defend soliciting donations from the convicted sex offender Jeffrey Epstein.” It angers even me!

Until I remember, it’s just not true. The headline and lede are now literally false. And the Times knows it is false. I’ve communicated with Nellie Bowles. She insists the truth “is in the piece.” Maybe—but it is a falsehood now ledes and titles the piece.

Not maliciously. I don’t think Bowles or the Times is out to get me. (Though here is yet another example of how defamation law is so inherently unclear — the law would call this “actual malice,” as it is false and known to be false.) But commercially. It’s false but now fun! Ad-worthy. And even better, it’s false to a great social cause — the fight against abuse.

When this happens on the other side, we see it. Clearly. When the Right bends the truth to make what he says more interesting, we on this side roll our eyes. They are corrupt. But we have the Times.

Yet as I have argued many times — and do so more extensively in a forthcoming book, They Don’t Represent Us (wow, I just had to consciously resist putting an Amazon link into that reference)—the corruption of incentives here is not partisan. It is systemic. It is the ordinary way of even great journalism in America today. It is what journalism has become.

Whatever you think about Joi, or MIT, or me, you should think about this. Not because it’s huge and important, but because it is ordinary and indeed, in the language of Arendt, banal. It’s completely normal today. It is the nature of “news.” And that is its problem.

Written by

law professor, activist.

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