NYT: S1E2: The Facts

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

Every case is a story. That story begins with the facts.

This is Larry Lessig, and this is the second episode of the podcast “The Law, such as it is.” The aim of this podcast — eventually— is to explore how the law works, or doesn’t work, across the endless range of contexts in which it now touches our lives. But to see that, we need a scaffolding. And the case that I’ll introduce in this episode — Lessig v. NYT—will provide at least part of that scaffolding. Over the course of the next few episodes, we’ll explore what happened, and then how a case gets born. The law moves slowly, so we can’t quite cover this in real time. But we’ll fill the time exploring other areas. And other cases. Trust me, there is a lot to cover.

In this episode we’ll cover what happened in this case. What happened to get us here. The facts. We won’t get to my reaction to what happened here. That’s the next episode, and maybe the hardest. But if this one works, at the end you’ll understand what I said and then what they say I said. And though I assume it’s not necessary, you’ll see the obvious — why what they said I said is so damaging.

The facts.

At the end of the summer, a story about the convicted pedophile, Jeffrey Epstein and the MIT Media Lab started to emerge in the media. The Media Lab, through its director, Joi Ito, had accepted donations from Epstein. On a number of occasions, Epstein had visited the campus.

That fact was troubling for what should be obvious reasons. And yet, sometimes the obvious needs to be said.

Pedophilia is a kind sex abuse. By definition, it is nonconsensual; it is therefore like every kind of non-consensual sex, harmful, sometimes profoundly harmful. It is especially harmful for especially young kids. We’ll turn to all that, and, unfortunately more, in the next episode. But regardless of its scale, like every kind of nonconsensual sex, it tears at a foundation of confidence and security. For many, it destabilizes and renders insecurity. For some, it disables, sometimes for a short time, sometimes forever.

Women have suffered this wrong more than men. Sometimes people think that only women have suffered this. Would that that were true. Or maybe not. It’s complicated. It’s better that fewer suffer this wrong, no doubt. It’s not better that that the wrong is so gendered.

But regardless, the wrong is visceral and common and present for some — always. And for some of that some, it is more than present. For some, it is a trigger waiting to be pulled, a fuse, ready to be lit. For some, it is more than something that once happened. It is something that always, in a sense, happens, whenever that past gets recalled.

And this is precisely the problem with what Joi and MIT did. Joi never abused anyone. I know this. I know him. And MIT, as a bunch of buildings and technology, never abused anyone. By definition, it can’t. But when Joi and MIT stood with someone who was abuse personified, it was injury added to insult added to injury. When they took money from someone who had become so plainly connected to abuse — and not just connected, but above it, or flaunting it, or flaunting the flouting of the laws about it—they ignited an explosion that should have seen was inevitable. This pain — not just a pinch, but a punch in the gut, over and over and over again, they should have anticipated. They should have seen how harmful it was going to be to the people they were charged with educating, or at least, protecting.

If that’s not convincing to you, in a sense, that could be good thing. It could be a good thing because it likely means you’ve not suffered this kind of abuse. But then construct for yourself an equivalent. How would a Jew feel at seeing MIT stand with — by taking money from—a billionaire who was also an open acolyte of Hitler. Or how would a kid whose mom died from an opioid addiction feel walking by a building named in honor of the Sackler family. If you can’t feel — viscerally—what so many felt when this connection was revealed, or if you can’t imagine it or empathize with it, or acknowledge it with respect, then please tune out, now. There’s not much of what follows that will mean anything to you, if this means nothing to you now.

Ok, so back to the timeline. In August, 2019, the connections between MIT and Epstein were becoming public and the focus of significant attention and growing anger. Ethan Zuckerman — a prominent social science researcher at MIT, and someone has been at the core the conscience of the Net since its birth—announced that he was resigning because of the revelations. Others followed. There was a growing call for Joi to resign. As the crisis developed, Joi engaged endlessly with the community, apologizing openly and publicly for his mistake, and then in endless private and public meetings at the Media Lab.

In the first week of September, I spoke to Joi. He was endlessly self-critical, yet surprisingly optimistic. The most recent meetings had been good he told me — cathartic, for him at least, is the way I remember him describing them. On Thursday of that first week, he told me he thought he’d get through it.

Then Friday, September 6, the New Yorker published an essay by Ronan Farrow. With that essay, everything changed.

Farrow painted Joi as rogue within MIT. He told a story of an institution filled with people with good intentions trying to resist the pressures that Joi placed upon them — pressures to take money from Epstein. The clear impression that one had at the end of Farrow’s piece was that there was a rotten apple in the barrel of MIT. As the MIT community, and the world, came to see it like this, the demands that Joi leave became deafening. On Saturday morning, September 7, Joi resigned. On Sunday morning, at about 3am, I awoke, angry at what had happened, and unable to sleep. I sat down in front of my computer, and without pausing once, I pounded out a 2,700 word essay about my thoughts about what had happened at MIT.

Part of that essay was personal, and confessional. I talk about that in the next episode.

But the primary aim of that essay was political: This issue, I wanted to say, is bigger than a single MIT administrator. And the idea that this problem was caused by a single person going rogue was absurd. The scapegoating of Joi Ito was wrong, and not just wrong to Joi. The scapegoating was wrong because it would turn attention away from the institution. From MIT. The scapegoating was wrong because this problem was not episodic, it was systemic. The problem is not a single individual making a fundamental mistake. It was an institution that allowed and encouraged and ratified that mistake. And if we’re EVER going to end this kind of wrong, we have to find a politics that can think about institutions too. Not just individuals who we brand good or bad; but institutions, that enable or protect those individuals who do bad.

I was driven to write this in part because Joi is a friend. But in part as well because I knew that Farrow was just wrong. I knew that MIT knew everything that Joi had done. I knew that had authorized and approved what Joi had done. I knew this was not just one person going rogue. And so I wanted to write an essay that explained as much about the reason an institution does what it does as about why an employee of that institution acts to support it.

And so after the personal part, I described the context within which universities raise money. And I mapped my own view about how I thought university should raise money.

I first sketched four kinds of money that a university might try to collect. These kinds I called “types” — type 1, type 2, and so on.

Type 1 is the easiest type to accept. As I put it, type 1 money come from QUOTE

people like Tom Hanks or Taylor Swift — people who are wealthy and whose wealth comes from nothing but doing good.

Type 2 is a bit harder. As I wrote, Type 2 comes from

entities like Google or Facebook, or people whose wealth comes from those companies. These are people who are wealthy because of their work within companies of ambiguous good. Some love them. Some hate them. Some think they are the key to all that’s evil in the age that’s coming. Some think they are the key to all that will be good.

Type 3 is the type most directly implicated by the dirty money in this case. Type 3 money comes from, QUOTE people who are criminals, but whose wealth does not derive from their crime. UNQUOTE.

So think about Martha Stewart. It’s hard not to admire, in some sense, the Martha Stewart. Whether you like her taste or not, it’s hard not to admire her success. That success is because, in part at least, of her talent. Her wealth comes from that talent. But the reality is that in 2004, Martha Stewart was found guilty of crimes related to trading on insider information. The money she made from that trade was tiny, compared her wealth. But she committed a crime, and was found guilty, and served time in a federal “correctional facility,” as it’s described today.

There are many people like Martha Stewart, though not many as famous or successful. But they are many who have earned most of the their money in an ok way, but who have been convicted of some crime as well. Sometimes that crime is completely unrelated to their money — an executive convicted of a DUI; sometimes it indirectly may have helped them gather their money — an executive convicted of tax fraud. But regardless, these are people who had done well and who have done wrong. And the question for me then was how should a university deal with money from these people.

The simple answer would be just to avoid it. That’s my preference, and were I king, that would be my rule. But my sense was that most don’t follow this rule. My sense was that most universities do accept money from people who have done well and done wrong. And so the modest recommendation that I made was for these people, the aim of the university must be not to allow the university to be used to burnish the reputation of criminals. If they want to support education or research, that’s great. But the university should not accept their money and their put up their name as a giver to the university. Instead, as I said, their gifts should be “anonymous.”

Not that word is a bit imprecise. I didn’t mean — because it could never be— totally anonymous. Obviously, the university will need report its gifts, obviously members of the board will know who gave the most or the most recently. The point is not that this connection must be hidden perfectly. Instead, what I meant was that the giver should not be advertised. That his name should not be on a building or in the title of a research center. That, in a word, the university should not be laundering bad reputations.

Because for most of history, that’s exactly what such institutions have done. Most people think kindly about John D. Rockefeller, the 19th and early 20th century billionaire (in current dollars at least), who funded so many extraordinary projects for good, and whose foundation continues to this day to do so much good. But Rockefeller was a criminal. His wealth — maybe most of his wealth—came from competing in a criminal way with his competitors. And not just by violating antitrust laws, but worse. Violence, maybe death. And yet, so laundered is his reputation today that most have no clue of who the man really was. I don’t believe that great institutions should be in that sort of cleaning business. We should avoid it wherever we can.

My position is not uncontroversial. Many people I respect think that it’s totally fine for institutions to take money from criminals. And many think it is perfectly fine to use the institution to launder a criminal’s reputation. I understand the arguments. I don’t condemn people who disagree with me, at least about this. But my view, as expressed in my essay, is that his kind of money, type 3 money, should only ever be taken if the donor is not then acknowledged. Let the word “anonymous” on a honor board signal the penance by someone. Just not someone any of us (on the outside, at least) knows.

And finally, there is type 4 money. As I wrote, type 4 is money coming from

entities and people whose wealth comes from clearly wrongful or harmful or immoral behavior. The RJ Reynolds Foundation, the Sacklers, the Kochs: I recognize that people have different views about these people or entities, but it is not hard to identify the enormous harm that each has caused. Smoking has killed multiples of the German Holocaust. Since 1999, more than 200,000 have died from OxyContin overdoses — four times the number of Americans killed in Vietnam (even if that’s less than a fifth of the number of people killed in that insane war). If there is a single family responsible for the fact that we to this day have no comprehensive legislation addressing climate change, it is the Kochs. This money is blood money. It is wealth that is great because of the harm.

This money, as I wrote in that essay, should not be taken at all — even if anonymously. Because the point here is not just whether the institution is helping a criminal burnish his reputation. The point here is whether the institution should be benefit from the harm caused to others. Many institutions — mine included—struggle with the question of how they reckon the wealth they received from slaveholders. That’s a hard question. But in my view, if a modern slave holder — and if you include sex slaves, there are many of those — offered money to a university, the question of whether to accept it should be easy — absolutely not.

My point in mapping this range of contributors — and again, this was an essay written on the fly, in the early morning after a sleepless night, so I didn’t offer it as a work of scholarship or the product of endless research; it was a modern blog post, posted on my favorite writing medium, Medium, so obviously, there’s more to think about and more to say, but I’ve not done that since and I don’t do that here—my point was simply this.

If we can’t have the cleanest rule — that a university accepts only type 1 contributions—then at the least, as I was arguing, it should exclude type 4 money. And if it took type 3 money, at least it should not do so openly. Not because the institution should be embarrassed by the money — again, this is not blood money; but because the university should not be a reputation laundering mill.

Ok, so at this point, let me drop one footnote. I’m a law professor. I get at least one footnote per podcast. This was another points in Farrow’s article that I also wanted to resist. Farrow wrote as if it was obvious that any effort at hiding a contribution was illicit. But what follows from the scheme that I’ve described is that not every secret is illicit. There are good reasons to keep information private — not always, but sometimes. And a university taking extra steps to keep information private is not—by virtue of those steps—necessarily doing anything that is wrong. I hope Harvard does everything it can to keep my social security number secret. And my health records. And my children’s health records. Those things ought to be kept out of the public’s eye; the university should work hard to do that. And likewise, for any proper type 3 contribution, the university should work to keep the donor out of public’s eye, again to avoid the laundering of that reputation. The obsession with secrecy in Farrow article then was, in my view, confused. The question should not have been whether Epstein’s contribution was kept secret. The question was simply whether Epstein’s contribution should have been taken at all.

Ok, so then — finally—we get to the crux of this case. Because the schema that I’ve just offered—at least making one critical assumption that I’ll describe in a minute—seems to suggest that it was ok to take Epstein’s money, at least if anonymously. Assuming, at least, that Epstein’s money is not blood money. It may be that we’ll discover that Epstein got rich by blackmailing people whom he had encouraged or enabled to commit abuse. It’s possible. But at the time MIT took Epstein’s money, the consensus was not that his enormous wealth was the product of blackmail or sex slavery. He was, the world assumed, a brilliant, savant-like investor, who was also a sexual predator. And so, if his money is not blood money, does that mean, under the schema I’ve described, that MIT was right to take Epstein’s money, so long as it was anonymous.

No.

Or let me say it again, because it seems so hard for some to see this, but no. Absolutely not. As I wrote in that essay, Epstein’s money is an exception to the “general rule” about type 3 money. And it is an exception for precisely the reason that I offered at the start of this episode. It is an exception because of the enormous harm it would do to the members of the MIT community to discover — as they inevitably would discover— that the community was funded in part by a sexual predator. It is an exception because obviously there are more values at stake than simply whether a university is burnishing the reputation of a criminal. Even if Epstein’s money is not blood money, there is blood on Epstein. And associating MIT with that person — given his crimes and the nature of the harm that his crimes impose on others, not just when they were committed, and not just those they were committed against, but anyone who has been near or affected by sexual predation—given all this, it should have been obvious that this money should not have been taken. Even if this was type 3 money, MIT should not have accepted it.

Ok, so I hope that point is clear, at least here. It is also the point that I made in my essay. Because after describing how Epstein’s money was type 3 money, and hence the kind that should, under the scheme I was describing, be taken if and only if anonymous, I went on to explain just why in this case, for this kind of donor, it should not be taken, even if anonymous. As I wrote, what MIT and Joi (and as I’ll explain next week, I too) missed QUOTE

was the great risk of great harm that this gift would create. Sure, it wasn’t blood money, and sure, because anonymous, the gift wasn’t used to burnish Epstein’s reputation. But the gift was a ticking time bomb. At some point, it was destined to be discovered. And when it was discovered, it would do real and substantial pain to the people within the Media Lab who would come to see that they were supported in part by the gift of a pedophile. That pain is real and visceral and substantial and not taken seriously enough. And every bit of emotion and outrage from victims that I have seen in this episode is, in my view, completely justified by the completely predictable consequence of that discovery. If you have not been abused, if you have not experienced that sense of being used and helpless, that may well not be understandable to you. Maybe. But I believe that empathy is a basic human emotion. And I believe that all of us should recognize the pain that only some of us can feel in seeing the institutions around us painted with the names or wealth of those who do that wrong.
Joi should have recognized that risk. He had it in him because he had come to talk to me about it at the start. He knew people could be hurt by just knowing the facts. But he assumed they would not be harmed, because he assumed that they would not know the facts. No doubt, he had more confidence in confidentiality at the start than later on. But at the moment the wrong was initiated, he should have known that time bombs do not belong within the walls of great institutions. And he should not have brought this time bomb within the walls of the Media Lab.

In an addendum I published three days later, I expanded on this paragraph. As I wrote then, the point of this paragraph QUOTE

is to say that even if you take Type 3 and you take them anonymously, it is a mistake to take this particular type of Type 3 contribution — precisely because of the pain it would cause if it were eventually revealed. Maybe you can take the money of a tax fraud, again, if and only if anonymous. But the kind of pain triggered here means that that general rule should not apply here. Which again is why I said I believe it was a mistake to take this money, even if anonymous.

Joi and MIT were wrong to take this money, even if it wasn’t blood money. They were wrote to take it, even if they took it anonymously. No aware understanding of what this money would do to the MIT community could ever allow this money in. It was a mistake to take it. Taking it, taking Epstein’s money— and obviously, soliciting Epstein’s money, was, in my view, wrong.

Almost immediately, my essay caused a stir. Almost immediately, friends started emailing me, expressing support and sympathy for the anger that was being directed against me on social media. I knew what I said would trigger anger. I knew the appropriate thing to do — in the world we now inhabit—was either to say nothing or simply to denounce. I couldn’t do either, and I knew there would be price to pay for not doing either. But the sympathy through email suggested the price was bigger than I thought it would be. I didn’t have the courage to wade far into the social media mess. I could see that the essay was being read orders of magnitude more frequently than my ordinary personal posts get read.

One of the emails I received was from Nellie Bowles at the New York Times. She had written to my assistant, asking whether I’d do a Q&A about the essay. I agreed. I’ll confess, I wish I hadn’t. I agreed because I believe what I said was true and I expected that truth to be understandable — by many, not just reporters from the New York Times. And I believed that the Times would report that understanding fairly and truthfully. In a word, I trusted not Nellie, whom didn’t know, but the Times, which I thought I knew, well.

We spoke that Monday for an hour. In that hour, I learned a lot about what was understood and not understood in the essay that I had written. That led me two days later to add the addendum that I quoted above — in part, emphasizing the meaning in the original essay, and trying to make it even clearer, and in part, adding other bits that were missed.

That Friday, we spoke for about 20 minutes, as she “fact checked” the article with me. Fact-checking involved her reading through at least the words of mine that she was quoting. For the most part, they were fine. At the end of the call, I asked her to go back to the beginning, because the beginning made it sound like I was defending taking money from Epstein. I said something like this to her, “you know, I don’t defend taking money from Epstein. You know I think that was a mistake.” I insisted she make that clear. She said she would. I made sure she had seen the addendum that I had written on Wednesday. She said she had. And then I suggested that it might be useful to include the fact that the whole purpose of my essay had in a sense been achieved, since just that day, MIT’s President had released a letter that affirmed what had said — namely, that contrary to Farrow’s article, MIT knew and approved of what Joi had done. Nellie said she’d try to add something like that. And the call then ended, me still believing that her essay would convey understanding.

I was in Germany that day. The next day, Saturday, I got on a plane to return home. It was a blissfully-WiFi-free-flight. Only when I landed did I get to see what the article said. While the edited selection of what I had said was a bit weird and incomplete, it was fine as far I was concerned. But the headline and the lede screamed at me:

A Harvard Professor Doubles Down: If you take Epstein’s Money, Do It In Secret.”

Ok, so you’ve been here with me these past @@@ minutes or so. You’ve heard me say that my essay in no way QUOTE “defend[ed] soliciting donations from the convicted sex offender Jeffrey Epstein” UNQUOTE. You heard me read two excerpts from that essay where I explicit said that it was wrong to take Epstein’s money, QUOTRE even if anonymous.UNQUOTE. However complete or not the balance of the Q&A was, the headline and the lede were flatly false. They asserted the opposite of what I had QUOTE “been trying” UNQUOTE to do. I had not been QUOTE trying UNQUOTE to defend taking money from Epstein. I had been QUOTE trying to UNQUOTE defend Joi against his scapegoating. And I had not been arguing that it was ok to take money from Epstein so long as in secret—I had been insisting that while there was some type 3 money that a university could take, at least if secret, EPSTEIN’S MONEY WAS NOT AN EXAMPLE. Epstein’s money should not have been taken — at all— because of the extraordinary harm that it would do to people who had already been victimized. And yet here was the title and lede of an article in the NYT saying exactly the opposite.

I was astonished. So astonished that I could only believe it was unintentional. In my experience, writers never select the titles to their articles. Turns out that’s not true, but it’s always been true with me. So it must have been, I believed, that Nellie’s editor had tweaked what she had written. No doubt, the title that was published was a more clickable title than the truth. No doubt, more would be brought to the story by making the story seem absurd. But I was sure that when she saw it, she would demand it get fixed.

She didn’t. Instead, the next day, she wrote an email insisting the truth was in the article, at least for anyone who read it through. QUOTE “In the interview you explain your position a ton, unambiguously and clearly. You do not think this donation should be taken at all. That’s there!” UNQUOTE

That wasn’t, in my view at least, the issue. The issue was that 95% of the people who saw this article would believe that I was QUOTE defending soliciting donations from Epstein UNQUOTE when I was plainly not, and that I was defending taking money from Epstein if done in secret, when I was explicitly saying the opposite.

The Times didn’t change the headline. Despite my request, they would not budge. So I tried to respond to the defamation by writing another piece on Medium. This was half as long. It was read about a tenth as much. The piece tried to explain the falsity in the headline and lede. It tried to make the incentives to engage in this kind of falsity — the ad revenue driven by clickbait—clearer.

I think it was the next day that Nellie called me again. The phone rang in my office, and picked it up. Nellie was on the end. She was furious. She was practically yelling at me with anger about my piece on Medium responding to hers.

At first, I couldn’t believe it. It took me a moment to recover — I don’t do well with being yelled at. But once I recovered, I was then triggered. I got angry, too.

The reason for that anger — at myself, at her, at this poison of abuse that never ends— is the focus of next Episode.

We leave this episode at this standstill. I believed the headline and lede would lead the vast majority of the people who saw it to believe the opposite of what was true; she, in her email and in that angry call, believed that anyone who read the article fully would understand exactly what I had said.

What happened next is next.

Stay tuned.

This is Larry Lessig. And this is the end of the second episode of the podcast, The Law, such as it is.