Cyberlaw Twitter has been mildly abuzz recently over the news that Professor Larry Lessig. Has decided to sue the New York Times for defamation. Specifically, Lessig claims that a NYT article describing this essay on Medium, explaining his position around the mess at MIT Media Lab and an anonymous donation from the late and utterly unlamented Jeffery Epstein. In his complaint, Lessig accuses the NYT of using a deliberately misleading headline and lede knowing that the vast majority of people do not click through to read the actual content they share with others and that therefore this “clickbait defamation” (as Lessig calls it) was knowingly defamatory even under the exacting standard of NYT v. Sullivan.
Perhaps unsurprisingly, in light of both the connection with Jeff Epstein and because newspapers don’t like to be sued, folks have reacted with particularly scathing criticism of this lawsuit. Many view this as contradictory to Lessig’s previous advocacy for an open internet and information freedom. Some have gone so far as to accuse Lessig of filing a “Strategic Lawsuit Against Public Participation” (SLAPP) complaint. Meanwhile, legal Twitter has been awash with rather melodramatic proclamations of how Lessig has lost his way by suing a newspaper, even if it did screw him over bigly.
Perhaps it is just the sheer overwrote nonsense that gets me contrarian here, but I’m going to disagree with the broader tech Twitter community on this. The Lessig Lawsuit actually raises a rather interesting new question of defamation law with a high degree of relevance in the modern world. It also highlights one of the things defamation law is concerned about — the ability of people to spread false statements that have very serious impact on your life or profession with virtually no repercussions. The complicated dance between needing defamation to protect people from harassment and potentially having their lives destroyed and the First Amendment protections for speech and the press has been pumped up on steroids in the information age — but we still need to remember that it is sometimes complicated. It is also important to keep in mind that while defamation law is frequently abused, it also plays a very important role in pushing back on deliberate misinformation and using a fairly powerful megaphone to make other people’s lives miserable — such as with the lawsuit by Sandy Hook families against Alex Jones. Defamation law requires a balance, which is why we cure the problem of SLAPP suits with Anti-SLAPP suit statutes rather than simply eliminating ye olde common law tort of defamation.
So I’m going to run through the Case for the Lessig Lawsuit below. To be clear, I’m not saying I agree with Lessig. Also, as someone who himself has a tendency to overshare and think things through online, I rank trying to work out complex highly emotionally charged issues online as up there with Hamilton’s decision to publish the Reynold’s Pamphlet. On the other hand, the chilling effect on open and honest discussion from “clickbait defamation” is an argument in favor of finding for Lessig here. Indeed, I have hesitated to say anything because the “chain of association cooties” and the ancient legal principle of “why borrow trouble.” (I am so looking forward to headline before my Senate confirmation hearing under President Warren with the title “Nominee supported Taking Jeff Epstien donation at MIT” — despite the fact that nothing in this blog post could reasonably suggest such a thing and the likelihood of my being nominated for anything requiring Senate confirmation ranks just behind my winning MegaMillions.) But I am hoping that obscurity combined with mind-numbing historical and legal discussion about one of my favorite traditional actions at common law will save me from too much opprobrium. Besides, the actual legal question is interesting and highly relevant in today’s media environment, and deserves some serious discussion rather than dismissive mockery.
More below . . . .
Defamation Lawsuits Aren’t Always Bad. Sometimes, In Fact, They’re a Good Thing.
Before I get started on this particular blog post, I want to address the underlying concern many of us have about defamation suits, particularly in the context of the press. As this delightful John Oliver segment discussing SLAPP suits explains, lots of companies and rich people (and even some cantankerous non-rich people) use defamation suits to shut down criticism, scare off reporters, and in other very abusive ways. We also have our deep concern over the First Amendment and the idea that news reporting ought to enjoy special protection because we want news outlets to vigorously pursue investigations that people will not like, report on controversial matters in the public interest, and offer their opinions on matters of public importance.
At the same time, however, defamation plays an important role in protecting people from having their lives damaged in very real ways. If you want to see a great movie about this, check out Absence of Malice staring Paul Newman and Sally Field. In it, a local federal prosecutor decides to “hack the media” by naming Paul Newman’s character a person of interest in a murder not because he thinks Newman is the actual murderer, but for the sole purpose of putting pressure on him to turn informant (although there is no evidence Newman knows anything about the actual murder, etiher). While obviously a dramatization, it highlights one of the big problems with how social media rewards headlines that are controversial, regardless of their truth. As a result, we have plenty of examples of how people hack that system to gain advantage in distribution. (This is where I will stick in my required plug for my book the Case for the Digital Platform Act. The relevant discussion is in Chapters 5 and 6.)
This is especially true with regard to allegations that are particularly noxious in the public eye, and which a reasonable person would interpret as fact, not opinion. Especially in these days of social media and national news, reputation is critically important to participating in the public sphere, to being able to do one’s job, and even living in peace without harassment. So while we don’t want defamation to be abused as a way to silence critics and stifle debate we do want some mechanism (other than fighting duels) to prevent people from harassing others with no consequence. Paradoxically, the worst damage to reputation can be done by those we most want to protect from being inappropriately silenced — the press.
Historically, the common law achieved this balance by limiting the things one could sue over and setting a very high standard for what constituted defamation. Traditionally, the three causes of defamation were (a) casting aspersions on one’s professional competence, (b) allegations of criminal activity, and (c) that one had a “loathsome disease” (or, as we would politely say today, a “social” disease). There was also a doctrine of construing the words of the speaker as favorably as possible. So that insulting someone by saying they were “a poxy, verminous toad” was not defamation, since the “pox” in question could have been small pox not the “French disease.” Over time, particularly with the rise of mass media and the difficulty in protecting one’s personal reputation in a world where people generally do not know each other, the category of defamatory statements has been somewhat expanded. Still, statements that are merely insults, opinions, or plausibly true (rather than clearly false) do not generally constitute defamation.
Thus Donald Trump calling Stormy Daniels a liar was not defamation, since it was clearly a statement of his personal opinion. (In fact, it was so obviously not defamation that Daniels had to pay Trumps attorneys’ fees.) On the other hand, Alex Jones repeated assertions that Sandy Hook was a hoax designed to support gun control legislation was so clearly false and damaging to the lives and reputations of the Sandy Hook victim families that — despite being a member of the press — Jones’ statements constituted defamation and he had to pay compensation and stop making the false and defamatory statements.
In the traditional English system, most defamation lawsuits have very low monetary awards. The primary purpose being to clear one’s reputation. These days, however, particularly in the American system, awards are designed to compensate the victim for the damage to reputation. That, plus the cost of litigation and the general reluctance of the American system to award attorneys’ fees, makes defamation actions potentially quite abusive. Hence our general modern dislike of them. Nevertheless, they continue to play an important role in the U.S., where sometimes the only way to get a company to do the right thing is to sue them.
A typical example of the value of a defamation suit where appropriate (and what generally happens most of the time) was the recent fight between Stack Exchange and one of its moderators, Monica Cellio. (Full disclosure: Monica is a good friend of mine, although we have never talked about any confidential aspects of this case so I’m relying on the public record here.) As reported by The Register and documented extensively by Cellio, Stack Exchange modified its code of conduct with regard to the use of preferred pronouns. Cellio — after making clear she totally supported using preferred pronouns — asked for a clarification of the policy (since, after all, she was responsible for enforcing it as a moderator). The VP in charge responded by publicly calling Cellio a bigot and revoking her moderator privileges. After several efforts to get Stack Exchange to reverse this decision and retract the statement (and other statements that were potentially damaging professionally and personally), Cellio finally sued. That settled quickly, with Stack Exchange issuing a statement basically acknowledging that they had over-reacted, their wording was unclear, and that: “We respect Ms. Cellio and believe she is a good person with much to offer and contribute. We sincerely hope she remains an active member of our community. In recognition of the mistakes that led us here, we invited Ms. Cellio to apply for possible reinstatement on all six sites following our new reinstatement process.”
So while we want to discourage bad/abusive defamation suits, we do want people to bring defamation suits that curtail actually abusive behavior. Because sometimes only the threat of a lawsuit will make people do the right thing. This will be an important point later on.
Why I Don’t Think the Lessig Lawsuit a SLAPP Suit.
One of the things about SLAPP suits is that they are “strategic.” That is to say, they are not brought because the litigant believes there has been an actual actionable claim. Indeed, one of the hallmarks of a SLAPP suit is that it should be obvious to any lawyer that there is no claim. The entire point of the SLAPP suit is not to win, but to silence a critic and discourage future criticism. I don’t believe that Lessig’s case fits that description.
First some lesser details. Number one, Lessig’s lawsuit is for $75K. By no coincidence, this is the minimum amount to establish diversity jurisdiction in federal court. Since SLAPP suits pile on the damages to ridiculous amounts (since they are designed to intimidate), suing for the bare minimum to get into federal court strongly suggests that Lessig is fighting for principle not simply to silence his critics.
Additionally, as even those who are most troubled by Lessig’s bringing the lawsuit freely acknowledge, the New York Times headline and lede clearly mischaracterized what Lessig said. Additionally, since Lessig himself was the victim of abuse as a child, the allegation that he was “doubling down” about not only taking contributions from child abusers, but on the strategy of taking them anonymously, would be particularly painful. Unlike the SLAPP suit, where the corporation or individual is trying to silence a speaker of the truth, this is a case where the intent of the newspaper was to convey a false impression for the sole purpose of attracting readers and ranking high on “engagement” in social media algorithms — or, as Lessig describes, “clickbait.” The general opprobrium directed at Lessig is not because people think the NYT was doing a great job of reporting an uncomfortable truth. The cries of “shame!” and accusations that Lessig is betraying the cause of free expression arise from the belief that (a) he has no case; (b) therefore the suit is simply about harassing the relevant reporter, editor and the Times; and (c) that suing the media here will intimidate actual good reporting in the future — especially if he were to actually win.
Which brings me to the most important reason I don’t treat this as a SLAPP suit. We need to distinguish between a genuinely bad faith claim and a lawsuit raising novel questions of fact or law. Common law evolves by people bringing lawsuits that argue “that principle you applied over there really ought to apply to this set of facts here, even if you never applied that principle to this set of facts before.” For example, at some point in the past, a court had to decide whether “publication” included a radio broadcast and whether it constituted slander or libel (both are forms of defamation, but there are differences not relevant here) and how to take into account that the vast majority of listeners to a radio broadcast will have no idea about the actual individual or actual facts and how that context matters, or doesn’t. To build the body of law around defamation since NYT v. Sullivan, we have lots of court cases which make such distinctions as whether the litigant is a public figure, whether they “sought the limelight” and therefore exposed themselves to criticism, and lots of other things that raised novel questions even around settled law. This is particularly the case where law must deal with changes in technology and social mores radically at odds with the time in which the common law action originated.
For example, we no longer limit defamation quite so narrowly as we used to because we have recognized that many false accusations have the same effect as did accusing someone of having syphilis back in the 17th Century. Someone had to bring the lawsuit where a court said “yeah, we’ve never before found that saying you are a [whatever] is defamation, but in today’s world being a [whatever] is just as bad as being a ‘pox-ridden whoremonger’ was back in ye olden days.”
That still leaves the question of (a) is what Lessig doing here a reasonable effort to force the law to evolve, or is it hopelessly bogus, and (b) assuming it is successful, is that a good result? As I will explain in more detail below, I think Lessig’s lawsuit actually does raise a novel question of law worth considering. I also think — and this is where things will get controversial with my free speech comrades — that a Lessig victory here would actually be a positive thing rather than a negative thing, and would not open the floodgates of litigation nearly as much as some fear. In making this analysis, we must keep in mind that because this is the complaint, Lessig has not yet set forth his legal reasoning and precedent, so it is hard to judge the likelihood of success. Additionally, to fully explore why this is both a valid claim and one that public policy should favor rather than discourage, I will take all facts in the complaint as true.
The Question Presented, Why It Is Important, and Why It Should be Tested.
Actually, Ken “Popehat” White rather summarized the legal rule in this Twitter thread here. To paraphrase: when considering defamation, the general rule is that a headline and lede must be taken together with the actual contents of the article. This is true even though many people will simply see a headline and not read the article. White concludes that “Lessig’s case is seeking, at a minimum, a non-majority interpretation of defamation law, and arguably a change in it that would make it easier to sue based on headlines read in isolation.” This is where we disagree.
I would argue that the question stated is somewhat different. “Should online publication of a headline and lede constitute an entirely separate publication from the full article when one is required to click through to the article, and must also pay to access or use up a ‘free article’ read.” This would make an exception in application to the general rule based on the real world differences between how publication in the digital world works v. the traditional print media world. This is precisely the sort of massively changed circumstances that prompts a court to say “yeah, you’re right, things have changed and application of the law to this new medium works differently.”
I would note that this would not change the already high standard of NYT v. Sullivan. One still has to show either actual knowledge that the headline/lede in isolation is false, or made with reckless disregard for the truth. Again, I’ll accept that the facts that Lessig alleges in the complaint (i.e., that the reporter understood that his position was not that stated in the article and lede, that the reporter reviewed earlier versions of the story with Lessig, agreed with Lessig that the initial headline was not a fair statement of the article, and that she would try to get it changed. Only later did the NYT take the position that it was justified based on Lessig’s words and that the headline was a reasonable interpretation. This would all seem to meet the standard of publishing with reckless disregard for the truth — assuming we treat the article and lede as a separate publication.
And this is where we get to the difference between an argument that really has no good basis in law and a novel argument that deserves to be tested. Traditionally, a headline is not physically separated from the article. Additionally, opportunities to view the headline and lede as separate from the article are severely limited. Members of the local geographic area may walk by a newsstand or see someone with the physical newspaper on the commuter train. But generally, the headline and lede are physically joined to the actual article and we can therefore expect that people read the actual newspaper article not merely the headline. The Internet, however, plainly functions very differently. It is well established that millions of people may see only the headline and the lede, that search engines and algorithms make decisions about ranking that weight the engagement value of the headline and lede separately, and that the “virality” of a story depends on its headline and lede in a way that is fundamentally different from the eye-catching nature of a headline.
Additionally, a physical newspaper has a relatively short half-life. After a relatively short period of time, the only way to see the misleading headline is to affirmatively seek it out in a library or archive. By contrast, when a newspaper makes a deliberate decision to use a misleadingly defamatory headline+lede, it will continue to come up forever in searches and can recirculate at any time. Given the likelihood and duration of the harm are significantly magnified, the analogy to traditional newspaper and headline arguably does not hold true for digital publication online.
Mind you, there are also lots of factual reasons to keep the rule applicable to actual newspapers applicable online, including the easy of clicking through and that the entire point of “clickbait” is to get the viewer to click through to the full article. Additionally, the problem with something being “well known” is that it shapes (or should shape) the viewer’s expectations as well. Granted there is an inherent tension between the something being so well known that newspapers exploit it to deceive people into clicking on articles and so well known that people are wise to this trick. But that sort of tension is fairly common in law.
Now let’s look at the public policy reasons why we might want a particular outcome. The reasons for applying the traditional rule to the Internet is obvious. We don’t want to make it easier to sue newspapers or chill public speech on important issues. Sure, that means some folks (particularly famous or public figures) are gonna get burned. But that’s the price of fame and the necessary trade off for an open internet with vigorous debate and permitting new news outlets that are not positioned like the NYT to withstand the inevitable flood of law suits to flourish.
But there are some significant counterarguments as a matter of public policy. After all, the newspaper is in control of its own headline and lede. We are still talking about the need to satisfy all the NYT v. Sullivan elements. Isn’t it reasonable, given the enormously magnified harm and magnified reach of social media over traditional newspaper distribution, to punish the publisher who decides that they are indifferent to the impact of their headline and lede as long as they can generate hits and heightened brand awareness? We’re not talking about damaging the substance of the article, or even imposing liability for a legitimate but provocative headline. We are talking about a very narrow expansion of the cause of action to punish a publisher that affirmatively decides to lie by implication for pecuniary gain. It seems rather melodramatic to insist that this is going to open the floodgates and drown out worthy reporting. Rather, it should achieve the positive result of forcing publishers to stop using deliberately false and defamatory clickbait as a lure to the actual article.
Which brings me to my additional public policy argument. Pretty much everyone panicking about “fake news” and its harmful impact on democracy and society (including — ironically — folks like the NYT) recognizes that people sharing clickbait headlines without reading the underlying article are a huge part of the problem. This is particularly true for social media, because the people most susceptible to these sorts of “fake news” tactics are low information voters. But it is far worse when the false/misleading headline/link comes from what is supposed to be a respectable news source like the NYT rather than some Russian troll factory. Isn’t it far more consistent with the First Amendment and our overall concerns for democracy to create incentives for news publishers to stop contributing to the problem by behaving in a professional manner (or, at least, not being deliberate jerkwads) than to try to force platforms to police their content? Frankly, given the self-righteous whining of the traditional media about the evils of social media, it seems to me it is totally justified to hold them accountable when they deliberately with malice aforethought, or with reckless disregard for the truth or the consequences of their action, decide to get in on the act and exploit the very weakness of social media and search they claim to despise and campaign against as a menace to society.
Reasonable folk can certainly debate back and forth the benefits and risks of expanding the defamation law to treat the publication of a defamatory headline and lede as a separate publication when the news publisher understands clearly that this is how things work on the Internet and deliberately exploits that. But that’s my point — it is actually a debate we should have. And the general way under the common law that we have these debates is through lawsuits like Larry Lessig’s.
Once again, I have no idea whether Lessig will prevail. I’m not even certain that he should prevail as a matter of public policy. But I am saying is that this is neither a spiteful act with no basis in law, or a betrayal of the principles of a free press and open internet There’s an actual real policy question here about where to allocate the responsibility and the consequences for exploiting the way the internet works, and whether newspapers have a responsibility to consider the consequences of deliberately hurtful headlines and ledes on the Internet. A bit less sanctimonious sneering or overwrought hand wringing is in order here.
Stay tuned . . .