David versus Goliath: Law professor sues New York Times Company over misleading and allegedly defamatory headline (Michael Simkovic)

Professor Lawrence Lessig recently sued The New York Times Company for defamation for incorrectly suggesting in a headline and lede that Lessig advocated soliciting donations from a convicted sex offender.

The New York Times wrote: "A Harvard Professor Doubles Down: If You Take Epstein’s Money, Do It in Secret . . . It is hard to defend soliciting donations from the convicted sex offender Jeffrey Epstein. But Lawrence Lessig, a Harvard Law professor, has been trying."

What Lessig actually said was more nuanced and subtle and had more to do with not being too quick to scapegoat fundraisers when donors turned out to have done disreputable things.

Read Lessig's complaint here.  From the complaint:

"Defendants published their headline and lede despite their both being the exact opposite of what Lessig had written and despite being told expressly by Lessig pre-publication that they were contrary to what he had written.  When Lessig brought the matter to Defendants attention post-publication, they refused to remove or edit their headline or lede to reflect the truth. . . . Defendant's publication destroyed [Lessig's efforts to spearhead a national dialogue dedicated to developing best standards for accepting and retaining donations from individuals and corporations who engage in wrongdoing] and has harmed Lessig's reputation more generally.

Defendant's actions here are part of a growing journalistic culture of click-baiting. . . . Defendants are fully aware that many, if not most, readers never read past the clickbait...The use of this tactic represents a uniquely troubling media practice as it relates to the harm to and destruction of the reputation of the target of the clickbait."

Although the full New York Times article provides more detail about Lessig's position, the headline and lede were anything but subtle or nuanced, essentially taking a few of Lessig's comments out of context and mischaracterizing them for shock value and humor at the expense of Lessig's reputation.  As Lessig's complaint notes, the headline and lede are all many people read.

Social media comments in response to the NY Times article suggest that Lessig would also defend wife beating and pedophilia.  In response to the NY Times article, a New York Times editor also cancelled publication of an article profiling Lessig's work on institutional ethics.

Lessig's account of suing the Times is available here.

Lessig writes:

"I know that journalism is hard, and deadlines are short. So I when I asked the Times to correct these two false and defamatory statements, I fully expected they would . . .  I was astonished when they not only refused to fix the mistake, but doubled down on the absurdity of their justifications. . . .

The incentives of journalism in the Internet age are clear—drive eyeballs to your articles, so you can drive advertising revenue to your bottom line. That creates an obvious incentive to tabloid-ize the headlines. Flashy and fun is harmless. False and defamatory is not. . .

A suit like this might complement the incentives for truth."

Lessig's assessment is consistent with how The New York Times Company describes its own business.  Its annual report extensively discusses risks of declining readership and revenue, tracking consumer tastes, and keeping up with competition.  It barely mentions the risk of defamation suits.  Even consumer privacy protections, which impact advertising revenue, seem to be a greater concern. 

Judging from its own explanation of its business to its investors, the NY Times is far more concerned with "engagement", "popularity", "ease of use", "monetization", "pricing", "marketing", "selling", "return on investment", "profitability", "visibility" and "brand strength," "consumer demands", "interesting", "relevant", and "differentiated content" than it is with factually accurate coverage.  The only explicit concerns for "accuracy" and "fairness" mentioned are whether the NY Times' financial statements accurately reflect its financial position to its investors and comport with "fair value" accounting.  

The New York Times does note that it is important that its coverage be perceived by readers as "trustworthy" and "high-quality" but its leadership doesn't seem to be overly concerned if its news coverage is actually fair or accurate.

My view is that the New York Times should be liable for foreseeable interpretations of its headlines and ledes which are misleading and cause damage to the reputations of those it chooses to write about. People's lives should not be play-things for powerful journalists and editors to casually toy with with impunity.

Actually caring about facts--and internalizing the harmful consequences of misreporting them--might lead to less exciting articles, and maybe even lower readership.  But the cartoonish fictionalized version of reality that some newspapers attempt to pass off as critical information is in reality little more than a sadistic form of entertainment--character assassination as sport.  Worse than entertainment which acknowledges that it is fictional, exaggerated "news" uses real people as its sensationalized villains and callously hurts them in the process.

But the law is so friendly to corporate media defendants that the NY Times might emerge unscathed. The New York Times seems intent on relying on favorable legal standards, writing: 

"''We plan to defend against the claim vigorously. . . .' It is unclear whether Lessig is a 'public figure' who must show the Times acted with actual malice in publishing its article."

It's not every day a modestly paid teacher uses his own limited resources to sue a financially and politically powerful corporation, when the legal deck is stacked against him.  The New York Times company has a $5.5 billion dollar market capitalization and 150 million readers. NYT's annual revenues are close to 5000 times Lessig's salary. 

The New York Times can retaliate by simply "disappearing" Lessig from its coverage and thereby lowering his scholarly profile.  Other media organizations are likely to take the NY Times side, both because of licensing relationships with the NY Times, and out of professional courtesy lest they encourage defamation suits against themselves in the future. Numerous studies find that media organizations slant their coverage to favor the financial interests of their owners. (Indeed competing news organizations have collaborated on political and legal efforts to water down defamation law).

Professor Lessig's courage and fortitude are very unusual.  Studies find that although sources often believe news articles are inaccurate, sources are afraid to ask for corrections for fear of retaliation.  Many people or organizations mistreated by media organizations roll over, cower, or buy advertising in the hope of currying more favorable coverage in the future.  Multiple studies find that media organizations provide more positive coverage of their advertisers. 

After being bullied by The New York Times, most people would hide or turn over their lunch money.  But Lessig is actually trying to hold The New York Times accountable.