This week seems to be a litigious one for Harvard professors. In addition to the complaint by Dershowitz at Yale, Harvard law professor and liberal political activist Lawrence Lessig is actually suing The New York Times for defamation. While there may be more offered in litigation, the lawsuit on its face seems dubious in establishing that the New York Times ran “false and defamatory” information for him as “clickbait” for readers.

Lessig previously ran for president and has been a long-standing liberal activist. That makes him a public figure for the purposes of defamation who must shoulder a higher burden of proof.  The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. Ironically, this is precisely the environment in which the opinion was written and he is precisely the type of plaintiff that the opinion was meant to deter. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. In order to prevail, West must show either actual knowledge of its falsity or a reckless disregard of the truth. The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. Ironically, this is precisely the environment in which the opinion was written and he is precisely the type of plaintiff that the opinion was meant to deter. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. 

The Lessig lawsuit in the U.S. District Court for the District of Massachusetts contains a fair degree of throat-clearing where Lessig accuses the newspaper of being part of  “a growing journalistic culture of clickbaiting: the use of a shocking headline and/or lede to entice readers to click on a particular article, irrespective of the truth of the headline.” The objectionable headline read: “A Harvard Professor Doubles Down: If You Take Epstein’s Money, Do It in Secret.” It was a piece on donations by the notorious Jeffrey Epstein to MIT and whether institutions should accept such money. The article included an interview with Lessig, who says that it suggests wrongly that he was encouraging taking money from people like Epstein. It is not clear, if true, that such a suggestion would constitute a damaging blow to a reputation since the premise is that schools should be able to use such money for a higher and most positive purpose. Indeed, his objections on his blog post could be viewed as nuanced: “My essay said—repeatedly—that such soliciting was a ‘mistake.’ And more importantly, it was a mistake because of the kind of harm it would trigger in both victims and women generally.” Yet, Lessig was arguing that an institution could take money from criminals or unsavory figures when the donor remains anonymous. He also defended Joi Ito, the MIT official responsible, and said that he should not be “scapegoated” for his mistake. Lessig says that he raised objections to the false suggestion that he was supporting taking money from Epstein. The New York Times headline was primarily dedicated to showing that, despite criticism for his view, Lessig was not backing down on the main premise of accepting money from controversial figures.

Accepting the complaint at face value (as would a court on a summary judgment motion from the New York Times), the complaint raises a tough question for the court. Lessig clearly did say in his essay that “it was a mistake to take this money, even if anonymous.” He also said that he conferred with Ito about the money and said that he was upset at the notion before Lessig himself was abused as a child.

However, he also stated:

“It was not my fight. I didn’t have the stomach or the ability then to do my own investigation. I wish now I had just screamed “don’t” to Joi. But I didn’t—and I wouldn’t have. Indeed, though I don’t remember this precisely, I probably told him that if he was convinced, then it was ok. Because the truth is that—as I thought about it then—if Joi believed as he did after real diligence, I didn’t believe he was wrong to take Epstein’s money anonymously.”

In his essay, Lessig creates four “types” to lay out when to accept or to reject money as academic institutions. The last two include:

Type 3 is people who are criminals, but whose wealth does not derive from their crime. This is Epstein, but not just Epstein. It may be that we’ll discover that Epstein got rich by blackmailing people whom he had encouraged or enabled to commit abuse. I doubt it, but it’s possible. Suffice it that when Joi was investigating whether that criminal continued his crime, no one was suggesting 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.

Type 4 is 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. . . . This money is blood money. It is wealth that is great because of the harm.

Lessig’s division of such categories is hardly a model of clarity and the essay gets increasingly murky on where or why he is drawing lines:

“And here then would be the rub for me at least (because most universities don’t follow this rule): I think that universities should not be the launderers of reputation. I think that they should not accept blood money. Or more precisely, I believe that if they are going to accept blood money (type 4) or the money from people convicted of a crime (type 3), they should only ever accept that money anonymously. Anonymity — or as my colleague Chris Robertson would put it, blinding — is the least a university should do to avoid becoming the mechanism through which great wrong is forgiven. Were I king, I would ban non-anonymous gifts of type 3 or type 4.”

He clearly states that, if universities take money from types 3 or 4, it should be done anonymously. While he personally would not do it, the essay could be read as supporting such decisions to accept money from types 3 and 5 donors as within the range of discretion for universities. That makes this case less compelling, particularly for a public figure.

Headlines can be the basis for defamation, even when the body of the column clarifies a false premise or suggestion. However, the headline could be defended as extending Lessig’s point to a more general point involving those accused of criminal or objectionable conduct. I would have still counseled the paper to issue a clarification of the headline since Lessig’s objection is not frivolous. Yet, the question is whether such broader headline is truly defamatory or whether it reflects a more nuanced position by Lessig.

The case could raise such precedent as Wilkow v. Forbes. In that case, Forbes Magazine ran column that reported that Marc Wilkow only paid ($55 million on a $93 million loan and “stiffed” the bank as a shady or sharp operator.  Seventh Circuit upheld dismissal in favor of Forbes in ruling these were not false or defamatory statements. Seventh Circuit Judge Frank Easterbook wrote an opinion that such statements can be read in different ways:

“Although a reader might arch an eyebrow at Wilkow’sstrategy, an allegation of greed is not defamatory; sedulous pursuit of self-interest is the engine that propels a market economy. Capitalism certainly does not depend on sharp practices, but neither is an allegation of sharp dealing anything more than an uncharitable opinion. Illinois does not attach damages to name-calling. Wilkow’s current and potential partners would have read this article as an endorsement of Wilkow’sstrategy; they want to invest with a general partner who drives the hardest possible bargain with lenders. By observing that Wilkow used every opening the courts allowed, Forbes may well have improved his standing with investors looking for real estate tax shelters (though surely it did not help his standing with lenders). No matter the net effect of the article, however, it was not defamatory under Illinois law, so the judgment of the district court is affirmed.”

The article in the New York Times suggests that Lessig was offering a realpolitik approach to academic gifts that accepted the money but not the attribution. It is a good-faith view that such money can be put to a more positive use than to leave it with such dubious figures. Moreover, the distinction drawn by Lessig is a tad difficult to follow. He seems to suggest that you can accept money from those accused of some crimes but not others. All crimes have victims. Lessig himself appears to recognize that accepting money from type 3 and 4 donors is within the range of discretion so long as they are anonymous.

A court may be tempted to dismiss this action on its face, but it does not appear particularly compelling for an actual trial.

Here is the lawsuit: Lessig v. New York Times