Harvard Law Prof Sues NYT Over Epstein Story, But Legal Experts Say Suit Probably Won’t Hold Up in Court

Harvard Law School professor Lawrence Lessig is suing the New York Times for defamation, he announced in a Medium post published this morning.

More specifically, Lessig is taking issue with the headline and the first two sentences of a story published in September and written by Nellie Bowles, a tech and culture reporter for the Times. “It is hard to defend soliciting donations from the convicted sex offender Jeffrey Epstein. But Lawrence Lessig, a Harvard Law professor, has been trying,” Bowles wrote in the lead paragraph of her article, which was headlined “A Harvard Professor Doubles Down: If You Take Epstein’s Money, Do It in Secret.”

The article featured a somewhat combative interview with Lessig, who had days before written a long essay in support of his friend Joichi Ito, the former director of the M.I.T. Media Lab who resigned from his post at the end of last summer after it had been revealed that he had accepted donations from Jeffrey Epstein.

Lessig alleges that the headline and first paragraph are misleading and defamatory. “I did not defend taking money from Epstein,” he said in the Medium post. “I didn’t say it was ok to take money from Epstein ‘if in secret.’ I said it was wrong to take Epstein’s money, ‘even if anonymous.’ The assertion—in the tweeted headline and lede—to the contrary is thus flatly false.”

Lessig described the offending “assertion” as “clickbait defamation.” “The incentives of journalism in the Internet age are clear—drive eyeballs to your articles, so you can drive advertising revenue to your bottom line,” Lessig wrote. “That creates an obvious incentive to tabloid-ize the headlines. Flashy and fun is harmless. False and defamatory is not.”

He said that he asked the Times to “correct” the headline and lead but that the paper refused to do so. His complaint names the Times along with Dean Baquet, the paper’s executive editor; Ellen Pollock, the Times’ business editor; and Bowles.

First Amendment experts said that Lessig may have some legal barriers to hurdle with his suit.

“The lawsuit is really a stretch under current law,” Dave Heller, the deputy director of the Media Law Resource Center, told Mediaite. “A court will typically look at headline and article together—not in isolation—so even if you have a misleading or one-sided headline if that impression is corrected in the body of the article there can be no defamation claim.”

Ken White, a defense lawyer in Los Angeles who writes about First Amendment law for the website Popehat, agreed. “I think it’s unlikely he will get past that,” White said.

At the bottom of the Times article, Lessig told Bowles that he did not support Ito taking the money from Epstein, but he characterized his essay as “a defense of a guy who did it in the context of a university that says, ‘Take the money!’”

In a phone interview with Mediaite, Lessig said that he had written the essay not to exonerate Ito but to defend his friend from being scapegoated for taking the money.

According to Nicole Ligon, a supervising attorney at Duke University’s First Amendment Clinic, Lessig’s complaint makes clear that he is a public figure — it describes him as a “nationally prominent professor and legal scholar with a large social media following,” she points out — which means that he will have to show actual malice for his claim to succeed.

“Proving actual malice is an uphill battle and will likely be a difficult feat for Lessig,” Ligon told Mediaite in an email, “especially if the NYT reviewed their story and reasonably believed their interpretation of Lessig’s statements to be truthful. Accordingly, I don’t think these claims have much teeth to them.”

In a separate email to Mediaite, Lessig said he would have no trouble proving actual malice. “The evidence will show that I had alerted [the Times] to the potential problem in their lede before it was published, and certainly immediately after it was published,” he said. “The ongoing publication creates an ongoing obligation to track the truth.”

And he seemed confident that he would be able to convince the court to view the offending headline and first paragraph of the article as separate from the entire article.

“There is growing First Circuit authority supporting this precisely,” Lessig said in his email to Mediaite, “and obviously it should be the law, because they distribute the headline with a link that not everyone can even read (since registration is required).”

For its part, the Times is holding strong. “Senior editors reviewed the story after Professor Lessig complained and were satisfied that the story accurately reflected his statements,” Danielle Rhoades Ha, a spokesperson for the Times, said in an email to Mediaite. “We plan to defend against the claim vigorously.”

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