from the is-this-title-clickbait dept
Last month I wrote a long post explaining why I could not support Larry Lessig's new lawsuit against journalists and the New York Times for what he referred to as "Clickbait Defamation." Lessig argued that a NY Times headline and lede was false, while I argued that it was a different interpretation, but not "false," and thus not defamatory. I also argued that his lawsuit was a SLAPP suit, potentially harming the individuals named. Larry wished to respond to my post and I invited him on the podcast to discuss. Larry is a Harvard Law professor. I am not. This immediately puts me at a disadvantage in arguing things in a live debate, and while I don't think either of us convinced each other of anything, l definitely understand his argument more clearly, though I still disagree with it.
The full discussion is now available as the latest episode of the Techdirt Podcast.
As I said in my intro to the podcast, I think it's worth reading all of the background information to understand what we're talking about, including:
Also, for the first time, we are providing a transcript with this podcast. This is an experiment. We have wanted to do transcripts for a while, but it is usually quite expensive and/or time consuming. In this case, given the likely interest in the discussion, we felt it was worthwhile. We are testing an automated transcript service, and while we've gone through it and tried to correct the errors, it is likely that some still made it through. We apologize for any such errors and will try to correct them if you alert us in the comments.
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TRANSCRIPT: Techdirt Podcast Episode 238
Mike Masnick: Hello, and welcome to the Techdirt Podcast. I'm Mike Masnick.
[theme music]
MM: Today on the podcast I'm going to do something that is perhaps incredibly stupid, which is that I am going to try and probably fail to debate a legal issue with a Harvard Law professor, and not just any Harvard Law professor, but Larry Lessig, who I have long admired and have learned so much from over the years. Larry's work has certainly been an inspiration to me for many, many years. And among the many things that I've appreciated about his work is not just that he takes very principled stance on big and important issues, but that he does so even when they sometimes look hopeless from the start. But what is so fundamentally powerful about many of his ideas and stances and efforts is he goes into them with such thoughtfulness and with such earnestness and based on such principled reasoning that even those projects that I think sometimes look hopeless, to what I would refer to as the savvy and the cynical, suddenly appear possible. And it's that principled possibility to change the world against all odds, even if it might not work, that has always made me appreciate his work, even beyond the specific value of the projects that he takes on. It's also why I've always tried to support each and every one of his projects and campaigns and to urge Techdirt fans to do so as well. However, as I wrote recently on Techdirt, I cannot support his most recent effort, which is his attempt to create what is effectively a new class of defamation which he refers to as clickbait defamation. Larry recently sued the New York Times, along with two of its editors and one of its reporters for an article that they wrote about something he had written in a Medium post. If you aren't familiar with the background here, I would urge you to go read of the background material, including Larry's Medium post, in which he publicly struggles with his advisory role in talking to his friend Joey Ito, previously of the MIT Media Lab, concerning the decision of whether or not to take money from known sexual abuser Jeffrey Epstein. I would also urge you to read the New York Times article and Larry's response to it as well as the lawsuit that he filed. Most of the details for this can be found on Larry's new website clickbaitdefamation.org. You can also if you choose read the article that I wrote about the lawsuit. We'll link to all of this in the show notes. We may discuss some of the details here but I feel that the conversation would probably be better understood if everyone has read all that material first. I will instead start off by simply noting that we are living in an age when defamation law is frequently being weaponized against reporters. As most listeners know, I have fairly recent firsthand experience with this and Techdirt has come close to in fact shutting down due to this. So I'm extremely sensitive to defamation lawsuits against reporters and journalism outfits. So perhaps that makes me too biased against any defamation lawsuit. However, I still feel that Larry's lawsuit and wider campaign may be very dangerous to a free and functioning press. But given how much I've learned from Larry over the years, and how much I respect and appreciate his contributions on a variety of different topics, I felt it was only fair to talk this through with him and he graciously agreed to come on the podcast today, and to discuss and respond to my criticism of his campaign. So Larry, welcome to the podcast.
Larry Lessig: Mike. Thanks for having me.
MM: So Do you want to start out just by explaining your side and sort of why you brought the lawsuit?
LL: Yeah, sure. Um, let me ask you a question first. Have you ever interviewed Richard Stallman?
MM: I have not. I have interacted with him a few times, but I've never interviewed.
LL: So, you know, obviously, everybody in tech world knows Richard Stallman. I've long been an incredible admirer of Richard Stallman. And the work that he's done for the free software movement and for freedom generally, and for a while I actually served on the board of the Free Software Foundation. And in that context, in another context are many things that Richard Stallman said that I disagreed with. But, you know, there were just things that he said that I disagree with, like when we were on the board, he thought we should invest all our money in gold. I thought that was really stupid. Turned out he was right. That was really the smart thing to do. But the point was, you know, it was just a disagreement. Okay. So that There was one time when somebody, it was almost like, triggered Richard to start talking about pedophilia. And he started, you know, questioning whether pedophilia was a crime or whether it was a sort of crime that ought to be punished the way it's punished or we ought to be as uptight as he put it about it. And I remember him saying that and I remember almost the sound of a bad AM radio station, kind of filling my head as I sat there stunned, I couldn't hear him. And the reason I couldn't hear him something I talked about in the article, the original original Medium post is that, you know, I myself, was a victim of sex abuse as a child for many years, for three years. It fundamentally affected me it has affected everything I've done. I kind of, I could tell you, not this podcast, but I could tell you how every single project I've ever done has flowed out of that abuse. Okay, so I say that to say, if you have not been in that position the reason why it was important to me to fight this defamation might not be clear. But the reason is so important for me to fight that defamation, this defamation, is that I am a teacher. And in my classroom, there are women who have been sexually assaulted or sexually abused, there might be men who've been abused as a child. And when they look on the New York Times website, and the headline says, Lessig defends taking money from Jeffrey Epstein, they become, they react they will react the way I reacted as I heard Richard Epstein [sic] defending pedophilia, and it will be impossible for them to hear me if they understand me to be that sort person. So, in my experience, and in the context that I work, it was extremely important for me to make sure that this impression that I, in fact, did what the New York Times said I did was not true. Now, you know, the way I tried to do that originally was the way all of us try to deal with this type of problem in the modern digital age. When the headline came out, and the lead came out, I contacted the New York Times and I said, what the hell, you know, this isn't true. I didn't actually - I said it more playful, you know, quiet way, I didn't directly say, please change it. I said, you know, seems that your headline editor got out of control here. Okay. It'd be great if you could fix that. And, to my astonishment, they didn't fix it. To my astonishment, they continue to allow the headline to present a fact which is just false. In a way that is extremely harmful to me, and especially to me, because especially someone who has experienced this in the way that I have experienced to be placed into that light by them, you know, knowingly given the complaint, both before it was published and also after it was published, you know, constitutes what we call defamation. You open by saying this is a new kind of defamation, there's nothing new about this. This is knowingly publish, publishing a false and defamatory fact. And, you know, in the internet age, I think the response should be they should take it down. They refuse to and so that's why it became essential for me to take the next step.
Filed Under: clickbait, defamation, free speech, jeffrey epstein, joi ito, larry lessig
Companies: new york times
