Commentary

Harvard Law Professor Has Weak Libel Case Against 'NYT'

Harvard University law professor Lawrence Lessig this week sued The New York Times for "clickbait defamation," accusing the newspaper of hurting his reputation with an inflammatory headline and lead sentence in a story that mentioned sex offender Jeffrey Epstein.

Lessig may have suffered damages, but they were mostly self-inflicted.

The lawsuit focuses on a Sept. 14 story titled "A Harvard Professor Doubles Down: If You Take Epstein’s Money, Do It in Secret." The first sentence read: "It is hard to defend soliciting donations from the convicted sex offender Jeffrey Epstein. But Lawrence Lessig, a Harvard Law professor, has been trying.

Lessig's suit describes the headline and lead as "clickbait," while also arguing many readers don't read past the story teasers they see online. By not reading the complete story, readers can form an unfavorable opinion based on incomplete information, according to the suit.

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Lessig claims the story triggered "mass outrage in Cambridge and Somerville, in Lessig's nationwide social-media following, by countless victims of sexual assault, and in the infinite depths of the 'Twittersphere.' Within hours, he became associated with the notoriety surrounding the Epstein scandal, and the community that quietly or silently tolerated such monstrosity."

The newspaper published the story six days after Lessig wrote an essay on Medium to support his friend, Joichi Ito, who had quit his job as director of the Media Lab at the Massachusetts Institute of Technology. Ito resigned after a New Yorker story detailed how the research center concealed its relationship with Epstein by marking his $525,000 in donations as anonymous.

Epstein was found dead in his jail cell on Aug. 10 after pleading not guilty to federal charges of trafficking dozens of underage girls. An autopsy determined the 66-year-old financier had hanged himself. His donations to MIT were revealed after his death.

Lessig's essay said that while it was a mistake to solicit the donations, it was also wrong to blame Ito as a scapegoat. Lessig is seeking unspecified damages from the NYT, executive editor Dean Baquet, business editor Ellen Pollock and reporter Nellie Bowles.

The lawsuit is surprising, considering that Lessig and the newspaper appear to have had a friendly relationship over the years. Lessig even says "I love the Times" in a follow-up essay explaining his suit.

The NYT story isn't that confrontational, consisting mostly of a Q-and-A interview that gives Lessig a public forum to counter the withering criticism he received after publishing his essay on Medium. Lessig brought those denunciations on himself before the NYT ever came calling.

Lessig also has a novel argument about the way the NYT allegedly defamed him with a "clickbait" headline and lead that didn't compel readers to look through the entire article and form a more balanced opinion. In other words, the clickbait didn't bait any clicks.

The NYT can't ensure that every reader pores over an entire story and arrives at the same favorable opinion about Lessig. It's not clear how Lessig will support his damage theory.

The newspaper's editors and lawyers did review the story after Lessig complained — and determined it didn't need to be revised. The newspaper plans to defend itself, according to an NYT spokesperson, cited by USA Today.

I'm not a lawyer, but I can't see this lawsuit getting that far. I expect a court to dismiss the suit, unless Lessig withdraws it first.
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