This is the draft text of the episode. It is close to what was recorded, but is not identical.
There was one moment, really just one moment, when I lost my temper. It surprised me when it happened. It was less surprising when I reflected on why it had happened. “Do you understand,” I said, practically screaming into the phone, “do you understand what it means to me to be painted like this?”
This is Larry Lessig, and this is the third 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 the podcast begins around a single case, Lessig v. NYT; that case began with a single essay. That essay both revealed and confessed something very personal to me.
What it revealed had been revealed before — New York Magazine had run a profile covering it, the great podcast, Criminal, has an episode about it —called “ The Choir.” That thing revealed was that when I was kid, I was abused. For years, I was abused, while away at school, by the director of a professional boychoir, then called the Columbus Boychoir. The essay that started everything here revealed that fact, because that fact was necessary to understand the confession.
We’ll get to the confession in a second. Because we need to pause for a second over this fact revealed.
I’m not going to talk about the details of that abuse here. For years, I couldn’t tell anyone. And then when I could, I told the story slowly, and carefully. And then at some point, it just became too exhausting. Not because telling a story is exhausting. Tell a story is easy. But each time I told this story, I could feel the places the story had mattered. I could see the harm it had done, and continued to do. I felt this endless and conflicting anger and recognition — anger at what had happened to me, and recognition that who I was was because, in part, of what have happened to me. Who I was: both the parts of me I hate, and I the parts I like best.
Ok, that’s getting way too deep for this episode. But I had to put that here, to make understandable the next part of the essay: the confession. Because the confession is tied deeply to this abuse. I didn’t see it at first. Indeed, as maybe anyone who has been abused will tell you, I work so endless hard to hide any consequences of that abuse every day of my life. I compensate. I over compensate. I try to live as if it just wasn’t there.
That compensation, that overcompensation, is what happen next.
A number of years ago, my friend, Joi Ito, told me he was considering raising money for the MIT Media Lab from the convicted sex offender, Jeffrey Epstein. I remember at first feeling sick when he said it. I remember telling myself to pull it together. I didn’t know, really, anything in detail about Jeffrey Epstein at the time. I’m very quick to assume someone is an abuser; I was certain he was an abuser, based on what I knew. But I told myself I didn’t really know anything. And I forced myself into the lawyer-advice mode. The question I thought Joi was asking me was what he should do, given the obligations of his role. The question I should have understood Joi to be asking me is what someone who had been abused would think about the Media Lab taking money from Epstein.
But in the lawyer mode, the questions were straightforward. Did he believe, honestly, that there was no continuing abuse? How had he come to that belief? Why would he have confidence in it. My own sense is that an abuser is never not an abuser — except maybe after surgery. But that too I didn’t have any real reason to believe. So what did Joi honestly believe? And did he honestly believe it because there was good reason? Or did he believe it because it was easier to believe it so that MIT could take the money.
It’s hard to remember just now, but on the surface at least, at the time Joi had asked me about it, the depth of Epstein’s criminality was not yet clear to the world. I had a vague sense of his having been convicted in a context that revealed his pedophilia. But I remember being uncertain about it, because the penalty was so slight. Obviously, we know now that the penalty was slight because the system was corrupted by Epstein. But I didn’t know that then. What I knew then was that he had been convicted of a crime that was much less significant than the rumors that there were. The rumors had triggered me. The conviction made me think that maybe I was triggered wrongly.
So when Joi asked, I ran him through the obvious questions. Did he believe — honestly believe — that Epstein was not abusing anyone. Would not abuse anyone. Did he believe anything from the past was left in the present?
Joi was very clear about that. He did, after, as he said, real research, believe whatever was in the past would remain in the past. He believed Epstein had been “scared straight.” Joi didn’t seem to believe that there was much “there there” to the accusations. He believed Epstein had given up a fight and just paid everyone off. So he didn’t believe that there was a real ongoing risk — of Epstein continuing the abuse, and the lab then suffering the consequences. The gift would not be public. It wouldn’t be used to burnish Epstein’s reputation. It would support the research that needed to be supported.
I listened. I wanted to be balanced. I wanted to be a friend. I told him something like “if you are sure.” It was the answer he wanted to hear.
I don’t have a fixed or clear memory of my thoughts at that moment. But I’ve been in that moment a million times. I’ve been in a place where I know that my reaction — my natural reaction, given what had had happened to me—would be inappropriate. Or at least, seem inappropriate. I knew I was “sensitive.” That’s quote sensitive unquote. I knew I was likely to be triggered. I remember a friend who had someone like an au pair living in her house, taking care of her kids. I never met him. But when she described him once, I lost it with her. “You can’t leave your kids with him.” He was the wrong age. He had the wrong interests. There was no doubt in my mind. But I couldn’t convince her. I wasn’t allowed my objection. My objection was not reasonable. I needed to learn to control the trigger.
And so that’s what I felt I had done with Joi. I had put on a fancy suit, so to speak. I stared at the facts, and only the facts. I told him I thought it was ok, if he believed as he believed.
I was wrong.
I was wrong for so many many reasons.
I was wrong first as a friend to Joi. Joi had a million lawyers around him. He didn’t me to do a lawyer’s calculation for him. He needed me to do the reckoning that only someone like me could do. He needed me to be that person who had suffered the crime that Epstein committed to give the reaction that was appropriate to that crime. Not appropriate to polite society, not appropriate to someone who had never been abused. But appropriate for someone who had been abused. What would it be like, for someone like me, to know that MIT was taking money from Epstein.
I was wrong second as a teacher. The most important job of a teacher is to create a space where learning can happen. What would the space of MIT be like — for anyone who had been victimized—if Epstein’s support were to become known. The gift was to be anonymous — in the sense that, his name would not be on a building. But I didn’t really think it would be anonymous in an absolute sense. It was a university. Very little is completely secret. So what would the space of MIT be like, for anyone who had suffered like this, to come to see that it was supported by money from Epstein?
Not that universities are generally sensitive to this sort of question. There are Koch Brothers buildings everywhere on campuses — including MIT. If there’s a single family responsible for America not having climate change legislation today, it’s the Koch Brothers. The Sacklers have spread their name everywhere. More than 200,000 have died from opioid addiction. No doubt some of the children of those who have died will walk by, or be told to learn within, one of those buildings.
But this wrong, this harm, this pain, is different. This connection is different. It’s not intellectual. It’s visceral. It doesn’t have its effect through an argument. It has its effect as a poison in the air would have an effect. It takes everything to shut it out. Only some ever have that power to shut it out.
For many years, I’ve known Richard Stallman, the founder of the free software movement, and an inspiration to millions around the world. Richard is brilliant and different. He’s fierce in his commitments. Uncompromising in his commitments.
He’s also someone unsure about the wrong of pedophilia. Or at least, at the time this vignette happened, he was unsure. I was sitting with him and others, and he started to express his skepticism about the “wrong” in sex with children. As he spoke, I increasingly couldn’t hear him. There was a buzzing in my ears, or a kind of static, like an AM radio station while driving across Iowa. Nothing he said was getting in. I just wanted it to end. I couldn’t hear him when I thought he was that person.
That’s the story I should have told Joi. That’s the effect he should have understood. Because the point is never intellectual, or just intellectual. The harm that is triggered interferes. It makes listening impossible. And the idea of a woman who had been victimized by an abuser coming to know her school was funded by an abuser is not the idea of a woman triggered to argue. It is a human shut down. The fact is a poison. It makes the air unbreathable. It makes working or being or thinking anywhere near, impossible.
I don’t think you need to have been a victim to get this. So Joi should have gotten this, even without me saying anything. MIT should have gotten this, before it told Joi he could take the money. Anyone should have gotten this, as they chose to engage with Epstein in any capacity at all.
But I had failed my friend because I especially should have gotten this. And yet I didn’t. I gave him what he wanted, and denied him what he needed.
I was proud I was so mature. I am ashamed I was so mature.
And all that shame welled up inside me, when I lost it on the phone with Nellie Bowles.
It was bad enough to have done what I had done. My essay had confessed it. It had explained why I had been wrong, how Joi had been wrong, how MIT had been wrong. It had said, plainly, that it was wrong to take money from Epstein, even if in secret.
And yet now, those words were twisted by a headline in the New York Times, tweaked to trigger a reader to click. And what I realized just then — as I screamed into that phone — was that the thing I had ignored when I had advised Joi was about to be the thing I would live with, because of Nellie Bowles’s words.
Because I am a teacher. I stand in a classroom with students, sometimes more than a hundred students. And I am an activist. I give lectures everywhere I can, in the fight for a democracy.
And what I realized then as I lost it on the phone with Nellie Bowles was that in every one of those moments, there could be women in the audience who would to see me through that headline. Every time I spoke, there was the chance of someone who thought that I quote DOUBLED DOWN — if you take money from Epstein, do it in secret.” That QUOTE it is hard to defend soliciting donations from the convicted sex offender Jeffrey Epstein. But Lawrence Lessig, a Harvard Law professor, has been trying.”
And then they would shut down. They would hear that buzz in their ears, as I heard it when Stallman defended sex with a child. They would not hear me.
And when I realized that, and I felt that, as me, as someone who was as triggered, as angry, as perpetually bent, as any, I lost it with her. “Do you understand, do you understand what it means to me to be painted like this?”
I don’t know if she did. She said she did. She said she got it. But she did nothing after we spoke. The Times did nothing after we spoke — except to double down in its defense of its false and defamatory title. She said she got it, but how could that be true? How do you get this, and do nothing? What is the reason to do nothing?
And that question leads to the final point of this episode:
They’ll say in their defense that if you read the whole article, you’ll get my point. Any confusion in the title will be corrected in the body.
Maybe, I don’t actually think so, and even that is ignoring the obvious — who exactly read the body?
But whether you believe that or not — whether you believe that the falsity in, or more neutrally, the misimpression created by, the headline was somehow corrected by the story— why wouldn’t you fix the headline anyway?
I wasn’t threatening a lawsuit. I was simply asking them to change words that were clearly understood by so many to mean something different from what was true. So why not fix that, when they knew the harm they created?
When their lawyers ultimately try to defend their words, they’ll say something about the importance of giving journalists wide latitude. They’ll call me a public figure. They’ll say they get to say whatever they want about a public figure, without consequence, so long as they didn’t have “actual malice” when they published what they published.
I agree with much of that — certainly the importance of journalism in explaining complex issues to the public accurately. And we’ll get to the details of what the law requires in later episodes of this podcast.
But as I end this episode, I want to make sure we don’t miss this other point, separate from the law.
There is decency as well as law. There is understanding, separate from legal liability. And there is that moment when you see a person as a person, and see the harm you’re creating for that person, whether intended or not, and whether or not the law would give anyone any remedy.
So then this is the bit I will never understand here.
When she — or they—saw that harm, or especially when she heard, in my scream, exactly what that harm was to me, why wouldn’t they do anything to end it? What was the reason? What journalistic value is preserved by refusing to repair a headline that is clearly at the very least confusing many, and certainly harming me? And not in some abstract “oh the world doesn’t understand me” sense — that’s the nature of public life — but in the very visceral, real-world sense of being painted as one who would “defend soliciting donations from” a pedophile, after having been forced live with the harm caused by a pedophile every day of the last 45 years.
This is Larry Lessig. This is the end of Episode 3 of the podcast, The Law, such as it is. In the next episode, I’ll talk about the next steps, and about how a wrong gets translated into what the law calls, a complaint.
This podcast is sponsored by me. If you want to learn more about the case, check out clickbaitdefamation.org. There’s a place there to help cover the costs of this podcast, and of the case. If you can help, thank you.