Journalism, Fake News, and “Clickbait Defamation”

Sometimes when my social media contacts are complaining about “the media,” they are really responding to headlines, which they cite as examples of “fake news.”
Sometimes the headlines they respond to are creative interpretations supplied by a third party with a dog in a particular fight; but other times I can see very clearly that the official headline doesn’t match the story.
I’ve pointed out that, just as ushers and the actor who plays “pirate #3” don’t have any say how the plays they’re involved in are marketed, rank-and-file journalists generally have no control over the headlines under which their stories appear.

Here’s an update on a lawsuit, filed by the author of an essay that appeared the New York Times who objected to the headline under which the online story was marketed. He said the online headline distorted his argument in order to get traffic for the NYT, which caused people who saw the inaccurate headline to lower their opinion of the writer — an act he described as “clickbait defamation.”

I was convinced there was nothing—save a jury verdict—that would get it to change. I am happy I was wrong. No doubt, the harms have not been undone. Only a tiny fraction of those who formed an opinion based on that headline and lede will see the correction, or these explanations. No doubt, the vast majority will be left with the opinion they formed. And certainly the costs of even getting this far have created a debt that will take a long time to repay.

But the costs of continuing would also be huge. And the marginal benefit from winning would not. Decency should be met with decency. The Times was right to do what it did — with no promise of anything in exchange. That right inspires this return. —Larry Lessig, Medium

Lessig withdrew his lawsuit because the NYT ended up agreeing to change the headline.

He’s careful to contextualize his actions as a reaction to a specific misleading headline, not an attack on the profession of journalism.

Journalism is threatened and vulnerable and essential. We should do whatever we can to protect it and make it less vulnerable—again, because it is essential.

Though I’ll confess, I was surprised at the intensity in some. I’m a lawyer. I believe in the law. I make lawyers for a living. And I think the law is also threatened and vulnerable and essential (not for all, but for those who need it most). Yet when I hear about a lawyer being sued for screwing up someone’s case, I don’t take it personally. Indeed, I think such suits are a good thing—if they make lawyers work better. Even without a strong and constitutionally grounded principle of immunity—like the principle crafted for journalists by the Supreme Court in New York Times v. Sullivan(1964), that makes it extremely difficult for “public figures” to sue for defamation—I think such lawsuits can make the law work better. And I am generally against doctrines of law that immunize bad acts by even good people. I think the immunity granted to judges (practically absolute) is unjustified, as is much of the immunity secured to the police and other state actors. In general, it is my view that responsibility makes institutions responsible, and that if anything, we need more responsibility today, not less.

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