NYT: S1E4: Case Withdrawn

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This is the draft text for the podcast. It is not identical to the spoken text, but close.

It’s taken a long time for me to record this final episode in this chapter of the podcast, the law such as it is.

It’s taken a long time because too much has been happening. It’s taken a long time because it’s taken me tons of time to come to understand how best to think through what happened here.

If you’ve missed the details — and how could you, because obviously, all this is among the most important of things to be thinking about, next to a pandemic, economic depression, and whatever else has happened today — but if you missed it, the lawsuit that launched this podcast has been withdrawn.

In April, the New York Times, on their own, and not part of any settlement, changed the headline and lede to their story. As the story now appears, it is fair, if a bit boring: “What are the ethics of taking tainted funds?” The headline online is now the same as the headline offline was. That fact itself says a lot — since the whole premise of the lawsuit was that the incentives to bend to titillate online were greater. No doubt, when the outside counsel that the Times hired to defend them recognized this fact, the outside counsel recognized that I had a strong argument. So they changed the story; I celebrated their change; a few days later, I then withdrew the lawsuit.

I’ve had many who have asked me, why? They are added to the very many who asked why (for the love of god, WHY) did I bring the lawsuit in the first place.

What follows in the balance of this episode is an account — both of how I got into the suit, and why it let it go away.

As I’ve thought back over the ugliness of much of the last year — the ugliness as it relates to this issue and this lawsuit, there so much other ugliness I don’t mean to describe — I’ve realized almost everything was a reluctant, but unavoidable, step.

When the story of MIT’s connections to Jeffrey Epstein broke just about a year ago, I felt angry about the harm that so many women (and not just women) would suffer knowing their institution had benefited from an abuser. I also felt some anxiety as I recognized that people I knew were going to be hauled before the public, and forced to defend what they did.

I knew, as I have explained, that there was complicity throughout. MIT knew and directed the MIT faculty and staff that had recruited Epstein to fund MIT. All of them would have to account for what they’d done. That accounting would not be easy or uncomplicated. But it was an accounting that was clear, it was right and it was necessary.

I knew that a friend — Joi Ito — would be at the center of that accounting. I knew his sins, but I knew he was not alone in his sins. I, therefore, believed that any accounting needed to include not just him but all who directed and encouraged and supported him. There had to be consequences; there should not be scapegoating.

And so, I honestly supported him in that fight against his scapegoating. I didn’t support what he had done. I supported the idea that he should be dealt with honestly — and fairly.

There were others who thought the same as well. And one of those others set up a website — WeSupportJoi.org— where he asked people who stood with Joi to stand with Joi by posting their name.

I knew from the start it would be a disaster. Nothing good could come of such a site. I knew I was stepping into a storm — I didn’t know how big — but I knew this would not be easy.

So I thought for a second about saying no. I wanted to say no. But I believed that only a coward would say no — a rational, sensible, happiness seeking coward perhaps, but someone who would avoid suffering and trouble by leaving suffering and trouble to others.

So I said yes. And my name was posted on the website.

Almost immediately, I started receiving outraged missives from so many who could not begin to understand — how! How could I do it! How could I stand with that “monster,” as one asked me?

I saw then the second unavoidable step that I knew I would have to take.

Again, like the first, like adding my name to the website, it was a step I would take, reluctantly. SO many who were so outraged, especially friends from MIT, deserved an answer. An accounting. They fairly asked why or how or what the hell about my standing with Joi. I respected them. I respected the fairness in their questions. I knew I would have to explain myself. I knew I would have to write.

But I knew this about writing: it wouldn’t be easy. I don’t mean the actual physical bit. I love the physical bit. I love sitting at my machine, talking to myself, watching words appear on the screen at I type.

I mean it wouldn’t be easy because it wouldn’t be short. The story was long. It was involved. It involved me. And because it was long, I knew that would mean it wouldn’t be read — completely. Which means it wouldn’t be understood — completely, at least by those with no real desire to understand what I had done. I knew whatever I wrote would be misunderstood by some. Maybe many. But here again, I felt I had an obligation. I had an obligation to the “what the hell, larry” crowd. To the friends who were mystified, or who felt betrayed. I felt an obligation to them. And yet I knew I would pay a price for fulfilling that obligation to them.

It’s interesting, again, to think about that price. I increasingly think this is the most important idea to understand and reckon. Attention. I’ve long thought and written about what I’ve called the attention span problem. What if you have an idea or a story that takes two minutes to understand — meaning, any normal person could understand it, if they gave it just two minutes of attention — but that the rational person would only spend 30 seconds to understand? That is, given its apparent importance or relevance or significance, the reasonable or rational or expected attention is 30 seconds when the necessary attention is four times that. What we can predict from such numbers is that most won’t understand the issue. Not because they’re stupid. But because they’re smart. The rational thing is to give it less attention than it takes; which means rational sorts just won’t understand it.

Now don’t get me wrong. I’m not saying in general, people don’t understand because of an attention span problem. I’m not saying people don’t understand what I’ve done or said because of an attention span problem. Sometimes they don’t understand because you just don’t make the point well. And I’m the first person to think that about my writing especially.

But I offer this idea — the idea of the attention span problem — because it is real, even if you’re perfect in execution. Even if you give the best possible account, understanding is going to be constrained by it. Reality is that that some things just won’t fit. Some ideas just won’t fit in the space they’re given. And you need to understand that, and decide, is it worth it, or is it the right thing to do, anyway.

That’s where I was when I thought about writing an explanation for why I stood with Joi. I knew some would get it, because for them, spending the time to understand it would be rational. But I knew many, maybe most, wouldn’t get it. The tweet version, the headline version: those would for them be enough, or everything they got. And I knew, this story — Lessig stands with an Epstein ally — would not translate well into a tweet.

But the step was not avoidable if I was to be who I wanted to be. Saying nothing was best. But saying nothing was a betrayal. So I had to say something and the something I had to say had to be true.

And so I did. On Friday, September 6, I read Ronan Farrow’s piece, making it sound as Joi was a rogue inside of MIT. I knew that was wrong. On Saturday, the piece had had its effect — Joi had resigned. On Sunday morning, at the crack of not even pre-dawn, I got up, and 3,600 words poured from fingers. I read them. They made me weep. I was angry — for everything, what had happened, for all who had been hurt, especially the victims victimized, all who had failed, including me — I was angry. I hit publish.

I knew it was bad. I knew it was good. I didn’t follow the tweets. I read my email. At least some of those who I had written the essay for wrote me. And many who I hadn’t written the essay for wrote me as well. If what I had written had been understood by some, it had been misunderstood by many many others. The piece had exploded. Anger outpaced understanding, by orders of magnitude.

And that brought me to the third reluctant step. This one, I now think, I should have avoided.

Nelly Bowels of the New York Times wrote, asking if I would do an interview. I hesitated. For not long enough, because I should have thought differently. But I didn’t think differently. So I said yes to her ask. Maybe her account, I thought, would make the story more understandable. Or more understood. If you’re listening here, you know just why at least I think that it didn’t.

I’m going to pass on retelling all that here. I’m going to pass to the final two, reluctant if unavoidable steps. The first is what got us here — to this podcast, because of this lawsuit. The second, is what brings it to an end.

[@@ADD SUPPLEMENT HERE]

When Nellie Bowels’ story was published, my life was blown up again. But now the stain was not in the transient space of the net — twitter, social media, and the like. Now it was in the archive of the New York Times. Right there in the headline, and the lede to the story, was a snapshot of me. Of me, represented in the worst possible way. As oblivious, as uncaring, as encouraging the worst of my kind — as one who was ignorant of the ravage caused by sexual abuse.

In one part of my life, of course, none of that mattered. I would walk into my house, and my kids were the same. My partner was the same. In the bubble of home, work didn’t live. And if I could just hide here, I thought, none of it would matter at all.

But outside of my home, that story mattered tons. And as I’ve talked to people about why it would matter, I found two sorts of people.

One sort gets why it matters, implicitly. These are typically women, though not just. These are people who understand just how awful it would be to be the person I was represented to be. People who take seriously, deeply seriously, the wrong that I was claimed I had committed. For these people, it was as if I had been diagnosed with terminal cancer. I could see in their eyes their sorrow — for me.

But another sort didn’t seem to get it. Yea, they would say, the press. Especially the Times, they would say, sucks. These people were exclusively men. And though some I’m sure were feining their belief, as an act of friendship, as a way to bolster me, some I’m sure genuinely didn’t see why it was so bad to be represented as the headline had represented me.

I spent weeks bouncing between these two sorts, punctuated by these bizarre encounters, either in real space or online, with people who were so furious with me. One guy I was certain was going to pummel me. Outraged and angry and justified in their anger (at least if the facts were true). People said it would fade. It didn’t. It festered and grew and grew rancid. I didn’t know what I could do to escape it.

And then I knew what I had to do, whether it would escape it or not. Then I knew the next unavoidable step, but here the reluctance was almost drowning me.

I met a student. A woman. A friend. Or she had been a friend. She’d been among the best in a class. I had encouraged her and respected all I thought she could be. She stopped me in the hall. Before she said a word, I could see everything she wanted to say. “I was so disappointed to see that you supported that man.” “What man.” “Esptein. I know you didn’t support him directly, but you’re defending taking his money, which is to support him. And I don’t understand how could you do it.”

In that moment, I realized just where I was. I’m a teacher. Every single time I taught, there would be at least one person like this one woman sitting in that class. Every time I stood before an audience, there would be at least one person like this one woman sitting in that room. And those women, and not just women, but especially, women, those women would not hear me. They could not hear me. They would understand that words were coming from my mouth. But I knew, as I’ve described before, that just as I couldn’t hear the words of someone I knew defended pedophilia, these people could not hear the words of someone who had defended (in their mind) a pedophile.

And with that, I knew the next unavoidable step, again made reluctantly.

As you’ve heard in these podcasts, it’s not as if I had done nothing to get the Times to correct their headline. Nellie Bowels had refused. The Times had refused. For a while I was certain that would change. For a while, I would google the story, certain that the words I’d find would have changed.

But they never did. And so if you were going to be a student of mine, or you heard I was going to speak at your school, or in your conference, or whatever, and you wanted to know who I was — there it was, among the first things you’d see, Lessig defending Esptein, if only indirectly, by defending taking money from Epstein, if only in secret.

I knew then I couldn’t let those words stand. Whatever it cost, I couldn’t let them stand. So I decided I had to cross the line. A friend recommended a lawyer. He — Howard Cooper — proved to be extraordinary. He saw the wrong immediately. He saw how to frame the case to remedy it. He advised me carefully about all the costs. I asked the person closest to me, the person who suffers my sleeplessness each night, patiently, and with love. She said “we have to fight.” I told Howard to file Lessig v. the NYT.

And almost immediately, the fire was even bigger.

I knew there were certain costs I couldn’t avoid. There were friends who are reporters. I knew most of them would feel betrayed. (I was so grateful for the few who stood with me. So endlessly grateful.) There was an organization I was trying to build — EqualCitizens.US. Its ED, a friend and lawyer, understood why I had to do what I did. He understood as well the costs that EqualCitizens.US would pay for what I did. I had just published a book. The publisher was wildly against the idea. Almost overnight, they shifted from pushing and celebrating the book, to reluctant, if almost embarrassed, partner. There were colleagues who had taught NYT v. Sullivan for decades. I had betrayed that principle, they said. There were friends who I thought should have seen better. Those friends are now lost.

But the point to see is the same point that I’ve repeated throughout this story. These were costs, but the choice not a calculation. I couldn’t do my job if this was how I was understood. Not “I couldn’t do my job well” but simply “I could not do my job.” It was not fair to force people to take my class — as first years are forced — when I was who I was represented to be. No doubt I was going to lose tons by bringing that lawsuit, but I would lose everything in the integrity of my profession if I did not. The point wasn’t — on balance, I’ll get more than this costs. I knew from the very start, that balance, even in the best case, would be negative. This would only cost. But even if I got nothing, at least I could say, credibly, that I did not let this lie stand unchallenged.

There was some good, don’t get me wrong. There were so many who told me I had to do this, and they were glad I was doing it. I hadn’t realized how many enemies the New York Times had. And there were a couple close friends who truly revealed how close they were. I remember on in particular who came to my office again and again. One time, after he left, I wept. His generosity, his friendship, was so dear, and yet it showed me how desperate I felt.

And even at the level of ideas, there was at least stuff that was interesting. I came across so many who are press absolutists. People who believe in the press so completely that they believe the immunity of the press should never be questioned.

That was surprising to me. I’ve never been a fan of immunity — of any immunity. I’m not saying there should be none. But I am saying, never should it be absolute. I believe in the police, in general. I absolutely don’t believe they should have immunity when they do wrong. But before this recent wave of BLM protests, there were many who would defend the immunity of the police. “These are good people,” they would say to me. And of course that’s true. But grant immunity, and you protect the bad people too. And worse, you create an incentive for badness, and you fill the ranks with those who seek that first.

That’s the same point about press immunity. NYT v. Sullivan — the case that established that the press was protected by the First Amendment from defamation suits, at least unless they publish something that they know is false — is a critical part of free speech in America. It plays a critical role in protecting the press from malicious or corrupt people of power. But the protection of Sullivan is not absolute. And when the press crosses the line and publishes something that is false, we should all — the press included — want that falsity corrected. Just as more are (finally) coming to recognize that you can believe that many police want to do justice AND belive it right to punish those who don’t, we need more to come to recognize that most in the press do what they do for the best possible reasons, but when they screw up, at a minimum, they should fix it. And if they don’t fix it, they, like crooked cops, should be held to account.

This view is rejected by so many in the press. My lawsuit was vilified by people I respect. I engaged with some of them. Mike Massnick, whose work at TechDirt. I’ve long respected, was quite harsh in his attack. He had the decency to ask me to be on his podcast. I was struck with how fixed his views were. What the Times said, he said, COULD BE understood as true, and if it could be, then I should just accept it, and move on. He agreed the piece was misleading. He agreed if misleading, it should have been corrected. But if they didn’t do what was right for them to do, even then, there was nothing for me to do in response. A free press depends on the press getting a free pass. Regardless, and always.

I want to spend some time now understanding this passion for immunity. Not just here, but elsewhere too. Section 230 — the provision of federal law which gives certain immunities to sites online — is similarly loved by so many. I don’t get that either. The same with presidential immunity. The immunity of states. Why — or how — do people come to think that good people deserve not to be questioned? If this podcast has life after this episode, it will be because I’ve convinced at least one to help me continue this conversation. To help me, maybe us, to understand this perversion in American law. Stay tuned.

But all that is in a hopeful future. Return finally to this end, maybe this hopeful end. Return to the final unavoidable, if reluctantly taken step.

Out of the blue, the Times told us they were going to change the headline and lede to the story. They had hired outside counsel. That counsel had discovered that the online article was importantly different from the printed version. The difference pointed precisely to the core claim of my suit — they had tweaked the headline to make it sexier and more compelling. This was clearly clickbait. Of course, we don’t know what was said or why. Nor do we know what the internal evidence of the Times showed. All we know is that they fixed it — 6 months after they had published it, 6 months after I had pleaded with them originally.

This triggered what became the final question — do I continue the lawsuit or do I withdraw. One part of me desperately wanted to continue it. Yes, they had changed the story, so yes, anyone looking (especially future students) would not see me painted as the monster they had rendered. I still genuinely believed that we would prevail in a court. That at least a judge and maybe a jury would agree that what the Times had said was false and that they knew it was false when they said it.

But the other part of me resisted this idea. The rule I believed in was that papers should fix what is false, quickly and fairly. That’s the way to make things work in the internet age. In the old days, the paper was published and that was it. There was no chance to correct in a meaningful way. But now there was. And if they correct it, that should be the end of it. This was the rule I think anyone should defend. Here was my chance to live by the rule that I thought should be law.

Of course, it wasn’t precisely my rule. There was the 6 months when they hadn’t corrected it. My rule would say that they must act more quickly — much more quickly — than that. And no doubt, whatever had led them to withdraw as they did, that was likely to be powerful evidence against them. But I had achieved an important change. At least in the memory machine, this slander would be removed. And as the world entered the worst of the pandemic, I determined to withdraw the suit. There was no settlement. There was no quid pro quo. They did the right thing. I answered in kind. The suit was withdrawn.

Many were very happy I had done this. Some even acknowledged they had misunderstood the issue before. Yet many clung to their anger, and their certainty. Mike Masnick was not satisfied. As he wrote: “[Y]ou don’t get to sue someone for misunderstanding your poorly made arguments.”

Ugh. No, Mike, of course, you’re right. You don’t get to sue someone for misunderstanding your poorly made arguments — or even your well-made arguments. But of course, nothing I ever said or did suggest that I believed that.

The question I tried to raise was whether a paper that tries to pimp an article with a headline that is both false and defamatory, after it was expressly told the headline was false and defamatory, both before it was published and after it was published, but yet does nothing to correct or remove or qualify the defamation, despite being repeatedly asked, should be immune from any accountability for the harm it causes. Again, I get how people who think journalists are generally doing good means that journalists should never be held accountable for doing bad — just as I get how people who think that police are generally doing good means that police should never be held accountable. But in both contexts, I don’t get it. Obviously, we need to cut both slack. But in neither case should slack mean absolute immunity.

It is now more than two months later. There isn’t a day when I don’t think about what I should have done, and should have done better. Or at least different. I continue to find damaged parts, of my life, and of my friendships. My retreating was welcomed by some. Even celebrated by some as a victory. (One close friend who had advised me more strongly than any not to bring the suit wrote me, “you were right and I was wrong.” He is an extraordinary soul.)

For anyone oblivious to the tradeoff that let me to these steps — which of course is almost everyone, given the attention span problem, and how far most are from the nightmare complexity of abuse—it was a bizarre miscalculation of mine, yet another one, a clear reason to doubt.

But for those who saw the tradeoff, or who see it, for those who understood what was at stake, it was a loss that they mourn with me. I’m grateful for that friendship—honest and true, if realistic. It is so fucking rare.

Each step in this story I felt I had to take, knowing how each would make things worse. If I were a corporation, the shareholders should revolt, for each step was value wasted. But as a person, as a human, each step was necessary, however costly. Each step — maybe except for speaking to Nellie, let’s just bracket that—each step, except for that, is a step I’d take again, knowing this is who I want to be. Or at least, this is who I want my kids to understand I am. The questions in life are never just, what makes us better off. The question is also and always, what is right. It is the sad delusion of youth and too much of religion that doing right makes us better off. If you’re lucky, maybe. But if we’re real, let’s just admit it: some paths are right, whatever the costs, even knowing the costs. One can mourn that loss. One should not regret it.

This is the final episode of this season of this podcast, the law such as it is. As I said, if I’m lucky, I’ll persuade at least one, I’m hopeful two, super brilliant souls to join me next season in a conversation about immunity. About the law or better, laws of immunity. About where they make sense. If they make sense. As I’ve said, I skeptical.

If you’ve listed through to here, thank you. And for those who’ve listened and reached out, thank you especially. I’m gone for a month with my family. I hope we’ll be back in the fall. Let next year not be like last year.

This is Larry Lessig. Stay safe.