NYT: S1E1: Introduction

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This is the draft text of the episode. It is close to what was recorded, but is not identical.

This is Larry Lessig and this is the launch of a new podcast, focused at first on a lawsuit that I have just filed against the New York Times, but aiming eventually to scan much more broadly to the institution of law itself.

The story begins with this particular case, which I’ll introduce just briefly in this episode. But my ultimate aim across the life of this podcast is to explore more critically this bizarre system at the core of modern society — the law.

If you know me, you know I am a law professor. I’ve been teaching for almost 30 years. I’ve been a believer in the law for almost 20 years longer than that. I am a committed lawyer — in just the sense that I believe in the ideals and institution of the law.

But over the course of my career, I’ve become more and more skeptical. Not of the law, or not of its ideals, but of how it is built. I have become skeptical of the actual institution of the law. Of the mechanics or machine that we’ve constructed for delivering what we still imagine is justice. I increasingly believe something that seems obvious to almost everyone who is not a lawyer but strangely obscure to many lawyers, or maybe just those of us training people to be become lawyers.

That belief is that the law is broken. Or defeated. Or maybe more directly, that the law sucks. That it is an embarrassingly bad institution, inefficient and captured, not in the corrupt or self-serving way that we might think that Congress is captured, but in a more practical sense of corrupted or captured. The law is wildly too expensive, it is bizarrely inefficient, and it systematically fails at the most basic level to do the one thing it was intended to do — justice.

I want to describe and understand that failing through the life of this podcast. I feel like I’ve been an apologist for too long. I’ve trained thousands of lawyers, many of whom are at the very top of the profession. It’s kind of inexcusable that it’s taken me so long to get to this place.

But I want to describe it and understand it in a particular way. I have no interest in trashing the law. I don’t believe society can live with out it. I don’t believe it is evil or essentially unjust. In this sense, I’m not anti-law, in the way one might be an anti-capitalist.

To the contrary, I am deeply pro-law, in the sense that I still believe it could be the institution that too many of us pretend it already is. I believe there is an ideal we could be pushing in the direction of achieving. I believe it is our duty — all of us— to work to achieve that ideal.

And so in this podcast, I will explore both the general question — of the law—beginning with the specific story of this litigation. I want to use the litigation to introduce the institution of the law, explaining the part of the law as the case develops. But beyond this litigation, this podcast will explore every corner of our existing legal system. I will interview skeptics and believers, in criminal law, family law, constitutional law, and, you get it. Through these interviews, I want to come to understand an answer to these two fundamental and motivating questions — Why is the law so bad? And what could we do to make it better?

Both of those questions are hard questions. If I had to answer them now, I’d have a sense. But I’m not interested in answering them now. I want to spend the next how many years I don’t yet know exploring to understanding to reflecting to organizing — for change. This is a new project for me. This is its beginning.

But let me clear about that newness and my intent here. I’ve had a strangely wandering legal career. I began focused on interpretation and constitutional theory. My first job was at the University of Chicago. I started teaching two years after the Berlin Wall came down. I spent many nights traveling with colleagues across Eastern Europe and the former Soviet Republics understanding the struggle they were engaged in, and how the law could work, or at least help. I wrote article after article about constitutional interpretation, while I practiced in the field the project of crafting constitutional regimes.

Then in the middle of the 1990s, the Internet became visible to lawyers. That triggered my next passion. I taught the first “law of cyberspace” classes at Harvard, Yale and Chicago. I published my first book, Code and other laws of cyberspace, in 1999. I quickly became an advocate for a free and open internet. I worked with many organizations — Creative Commons, EFF, the FreeSoftware Foundation, PublicKnowledge—to protect the internet from influences, especially from lawyers, keen to make it less than it should be.

Suffice it that we didn’t know jack shit about anything. At least I didn’t. There are real truths I believe I helped describe or craft. But no one understood just how this technology was going to change us. We fought — naively, but in good faith — for a vision of the Internet. No one can really be happy with what has been produced.

But all that is to get ahead of the story. For reasons I will describe in a later episode, in 2007, my work changed again. Along with my friend, Aaron Swartz, I began a project to understand the corruption of democracy in particular, and institutions of public trust more generally. I left Stanford where I had been working on internet and copyright policy; I moved back to Harvard to take over the EJ Safra Center for Ethics. And there I began a project to understand the more subtle and pervasive kind of corruption that affects so many institutions, including democracy. And I began a reform project to bring about the fundamental reform of our democracy.

That project continues to this day. I’ve helped found many organizations — Change Congress, which became Rootstrikers; Mayday, and now EqualCitizens. Each of these organizations has been fighting for real reform of our corrupted democracy. And after a dozen years in this fight, the truth is, I am more optimistic now about us prevailing that I have ever been. If not in this cycle, then the next — for sure. I promise.

I’m not giving up that work. I won’t give it up till its finished. But I want to begin something new, or different. I’ve written six books touching on corruption and democracy. I want to begin something new that can teach me something new, and that I can turn into something useful, someday, if not soon.

In the end, I expect I’ll take everything I learn in this podcast and in these discussions, complemented with endless reading of the work of many others, and do what every academic does — turn it into a book. But along the way, you can watch as that story develops. You can hear the conversations, and the arguments. You will feel my frustration and my anger. And you will understand something about at least how the law functions right now. At first, through this case. Later, through other cases — hopefully not mine — and other interviews as well. I don’t start with a map about where this will go. It is more investigation today than analysis. But stay tuned and you’ll feel this story grow. And if you subscribe to the podcast through Patreon, you’ll receive a free signed copy of the book when indeed it is done — assuming of course that I have the opportunity to complete it.

Ok, that’s a longer introduction that I intended. In the last minutes of this episode, here’s a couple minutes on the first focus on this story, LESSIG v. NYT,

Start with something simple. I love the Times. I have enormous affection and respect for the institution. I’ve had real friends who have worked in the institution. I may lose some of them when this lawsuit gets launched. But I’m sure I will not lose many of them — because of who they are, and what they stand for.

But last fall, the Times pushed me in front of a bus. Not literally. It was nothing that dramatic. And I’m certainly not defeated or wounded or even upset — at least not any more. But I have been harmed in an important way, and I continue to confront the echos of that harm in the righteous anger of many, as I speak or write on social media or meet people at work or elsewhere. More importantly, I am convinced that the why of what the Times did is deeply wrong.

In a line, what they did was this: the Times published an article about me with headline and lede that was plainly false. That falsity was defamatory — meaning, technically, that it harmed my reputation. Yet when I pointed out the error to the Times, they didn’t do what I expected they would do. They certainly didn’t do what they should have done. They didn’t fix it. Instead, in an almost Trumpish-way, they doubled down on their mistake, and insisted that any mistake in the headline was corrected in the balance of the article.

They didn’t do what they did because they had it out for me. I’m not enough of a someone for them to even notice me, let alone have a purpose regarding me. Instead, I fear that they did what they did because of the incentives of publishing today. The headline is what is called “clickbait” — it is crafted to induce people to click on the article to read it. Because the more who click, the more ads the New York Times gets to sell, and the more successful the write of the article is deemed to be.

Clickbait is not itself a problem. Less boring is always more interesting than more boring — kind of by definition — and I myself have written articles with titles plainly intended as clickbait. (A decade ago, I published an essay in the New Republic titled “Against Transparency”, a title specifically to draw people into the story with some anger right up front.)

But when the clickbait is false or defamatory, it is a problem. No one should be able harm someone else through falsity, simply to sell ads. And that kind of falsity, or that kind of defamation, I want to call “clickbait defamation.” And this case is all about whether clickbait defamation can be remedied by the law.

You can catch a glimpse of the substance of the fight — what the defamation was —in a brief video that I had prepared for the launch of the case on the website — CLICKBAITDEFMATION.Org. That video was prepared when I first thought about bringing this case. I then decided to let the matter cool for a bit, before launching a lawsuit.

In the next episode, I’ll talk about the facts that lie behind this defamation. And then I’ll describe the first steps of a lawsuit — how it gets born, and how it develops — and where I want this case to go. Then, as this case is developing, we’ll explore other corners of the law, and how they work, or don’t work — and why. It should be fun — the podcast, not the lawsuit. It certainly will be tons of work — for me, not for you. And I am hopeful that the end will seem much more hopeful than the beginning does. I can’t believe how long it has taken to get here but I am here: the law is so much less than it promises to be — than it could be; we have so much to do to make it better.

If you have stories of your own, please send them to the story line for this podcast, [email protected] I won’t be able to answer everything that gets sent there. But I’m grateful for ideas and leads, as I begin this conversation and exploration, to the end of contributing to the repair of this part of democracy too. And please share this podcast with others you think might also be interested, not necessarily in this case against this great institution, the Times, but in this institution meant to be great in all times, the law. It should be. I want it to be. This is the story of how it could be.

So stay tuned.

This is Larry Lessig, this is the end of episode 1.