Clickbait Defamation

Lawrence Lessig has lost his damn mind.

The Harvard Law professor, who absolutely knows better, is suing the New York Times for what he calls "clickbait defamation," arguing in a lawsuit that "The consequences of this clickbaiting have been harmful to Lessig and his work."

Clickbait defamation, while surely a nifty phrase in the mind of Lessig, is most definitely not a thing. And this suit is dangerous, irresponsible, and very, very dumb.


Lawrence Lessig is mad that the New York Times reported some words that he wrote and said.

Unlike his Harvard Law colleague Alan Dershowitz, Lawrence Lessig doesn't to our knowledge pal around with pedophiles in his panties. But last fall, Lessig wrote a blog for Medium called "On Joi and MIT," where he discussed his thoughts on universities accepting donations from criminals, like infamous pedophile and sex trafficker Jeffrey Epstein.

In the blog, Lessig defended his friend Joi Ito, who had anonymously accepted donations from Epstein for MIT's Media Lab. Lessig argued that when universities accept money from people who have been convicted of a crime, they should only take the donations anonymously. He defended Ito and lamented that he had stepped down from his role as director of Media Lab.

Among other things, Lessig said:

Everyone seems to treat it as if the anonymity and secrecy around Epstein's gift are a measure of some kind of moral failing. I see it as exactly the opposite. IF you are going to take [...] money [from people like Epstein], then you should only take it anonymously.

The piece immediately blew up -- and not in the way Lessig had intended. As ultimately described in the article Lessig is suing over:

The reaction to Mr. Lessig's essay was swift and furious. On social media, many were dismayed that someone whose work focuses on institutional corruption would defend dealing with Mr. Epstein and hiding his money. "A disappointing moral crumpling from Lessig," wrote Anand Giridharadas, the author of a book on the corruption of the elite class. "No matter what you do as a dude, dudes will have your back."

Times reporter Nellie Bowles got in touch with Lessig and interviewed him about the piece. In the interview, Lessig again said of people like Epstein:

If you're going to take the money, you damn well better make it anonymous.

Now, Lessig is suing the Times for ... reporting on what he wrote and said.

In a suit filed earlier this week in federal court in Boston, Lessig sued the Times, reporter Nellie Bowles, editor Ellen Pollock, and executive editor Dean Baquet.

Amazingly, this defamation suit isn't even about the article -- it's specifically about the article's headline and lede.

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

Yeah, I'm pretty sure both of those things are accurate.

The article in question goes on to put Lessig's Medium post in context and describe the controversy, before getting to the crux of the piece: an interview with Lessig. (It looks like, at least, someone told the professor that he can't sue himself for defamation.)

The complaint is ... well actually, it's kind of amazing.

Yes, professor, that is basically exactly what you did.

Maybe don't write things defending your buddies anonymously taking money from Epstein if you don't want to be associated with defending people anonymously taking money from Epstein?

Not to mention the fact that the backlash for Lessig's Medium post began well before the Times piece ran.

Here, in his bragging about how awesome he is, Lessig also (perhaps inadvertently) identifies himself as a public figure -- which the former presidential candidate undoubtedly is. In a defamation suit like this one, public figures have a high bar; they have to show that any false and defamatory information about them was published with "actual malice."

Not that any of that really matters, since nothing the Times wrote was false or defamatory, but I digress.

That's not a cause of action, Larry.

Next, we get to the part where the law professor doesn't understand basic legal concepts.

There are a couple of ways to get a case like this into federal court. Either the case has to raise a "federal question," or the parties have to be "diverse" (located in different states) and the case has to be about something worth more than $75,000 in damages.

Lessig is arguing that a headline and lede about things he actually wrote caused him more than $75,000 in damages. Remember, Lessig isn't even arguing that the article, in its entirety, is defamatory. He thinks he is entitled to, at a minimum, $75,001 because of two sentences.

But honestly, it's the attempted invocation of federal question jurisdiction here that really pisses me off. (And apologies, because this is totally a law nerd thing, but since the plaintiff in this case is a Harvard Law professor, I feel like I have to go there.) Federal question jurisdiction only exists when the plaintiff -- in this case, Lessig -- raises a federal issue. In this case, it will be the defendants -- the Times and individuals named -- who will be raising the issue of the First Amendment. In law school, you learn this in your 1L civil procedure class.

For shame, professor.

I particularly enjoy this little nugget in the complaint:


Lessig also explains that:

Is the constitutional law scholar seriously making the argument that the New York Times was legally obligated to describe the four objectives he sought to convey in his blog post in its headline and lede?

I know that can't be what he's doing. Right?!

Lessig also appears to think he has a right to further coverage in the Times?

I hate to be the one to tell you this, Larry, but no one has a right to have their book excerpted in any publication.

And can someone teach the professor about actions having consequences?

That's now how the law works, Larry.

Truth is an absolute defense to a claim of defamation and absolutely nothing in the Times article is false. But don't listen to me! Take a look at what Lessig had to say about it in another Medium post complaining about the article:

Specifically, it wasn't flat out false.

Yeah, and as you know, that should end the court's inquiry.

Although Lessig insisted this angry blog was the "last [he] intend[ed] to write about this," because "I have a job, I have kids, I have a gaggle of briefs due in the next two months."

Well, those two months have passed and we at last get to the purpose of this baseless lawsuit: Lessig has figured out a way to make whining about this article part of his work!

Lessig's latest Medium blog, this time about suing the Times, links to a website: The site features an absurd video featuring Lessig (scroll up to the beginning of the post for this gem), a podcast featuring Lessig talking about the suit, links to Lessig's Medium blog, and even a page to donate money for the rich and famous Harvard Law professor to pursue his bullshit lawsuit.

I agree with Lawrence Lessig on a lot of things, but this suit is ridiculous. And the worst part is, he knows it.

If courts accepted Lessig's idea of "clickbait defamation," it would be an absolute disaster for the free press. There's an important reason the First Amendment puts such tight constraints on defamation cases. As the Supreme Court famously said in another defamation suit against the New York Times, the US has "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks[.]"

Lessig, who is a constitutional law scholar, knows this suit is baseless and understands just how dangerous it would be for a court to accept his argument. But he decided to sue anyway.

White male narcissism is a helluva drug.

I ask you, professor, to consider your own words:

But as I reflect on how we got to this day, yesterday, I can't help but fear for our time. Can we deal with any complicated issue, sensibly? Or humanely? Or with integrity?

Here's the full complaint:

[ NYT / Complaint / Medium / Medium again / Medium again ]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.

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