When high profile business professionals file defamation lawsuits against media outlets – especially prominent media outlets – media defense lawyers often scratch their heads. Why? Plaintiffs like these are not likely to win, the lawyers think. Such plaintiffs almost certainly don’t need the money. Why go through potentially years of protracted litigation and legal costs only to lose a libel case?
So it is with the curious defamation suit that prominent Harvard law professor Lawrence Lessig recently filed against The New York Times. The Times is notorious for refusing to settle libel cases. So why would Lessig, widely considered among the most prominent and influential legal authorities about the Internet and intellectual property (among other subjects), undertake an otherwise distracting project?
Turns out you need to dig a little deeper than the first couple of hits Google sends you.
Lessig wrote an essay essentially defending his friend Joichi Ito, the former media director of the MIT Media Lab who resigned his post at the end of last summer after it had been revealed that Ito had accepted donations from the late billionaire and pedophile Jeffrey Epstein.
The Times ran an article – mostly a Q&A – dissecting Lessig’s essay and thoughts.
Lessig apparently takes issue only with The Times’ headline and first two sentences of the newspaper’s piece. The headline, “A Harvard Professor Doubles Down: If You Take Epstein’s Money, Do It In Secret,” arguably implies – as Lessig asserts in his lawsuit – that Lessig condones taking money from pedophiles. Lessig also alleges that the first two paragraphs suggest the same.
But in the body of the Q&A, Lessig clearly opines that he does not condone accepting donations from persons such as Epstein. Quite the opposite.
This lawsuit has drawn doubters among those in the media law world, in part because Lessig would have to prove that The Times published the article with “actual malice,” defined as “knowledge of falsity or reckless disregard for the truth.”
As a constitutional law scholar, Lessig knows this. But his real motivation may just be to simply fight back in any way possible. Lessig’s own personal history of being the incredibly unfortunate victim of childhood pedophilia would certainly make their article even more offensive. As former New York magazine writer and current MSNBC national affairs analyst John Heilemann detailed in a riveting 2005 article, Lessig himself has been a repeat victim of sexual abuse as a minor.
One would hope the two sides could work out their differences quickly and amicably. I would hope Lessig doesn’t really want to play this out. (I’m pretty confident The Times wouldn’t.) Maybe they could cut a deal that ends with some educational benefit.