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On @JBenton's "disappoint[ment]": threadreaderapp.com/thread/1216772…

Imagine I said:

"If you drink alcohol, stay hydrated by drinking water. But NEVER drink rubbing alcohol."

Would a true summary of my statement be:

"Lessig Doubles Down: IF you drink rubbing alcohol, mix it with water" ?

B/c that's precisely the form of what I wrote in my Medium piece:

"IF you take Type 3 donations, do so anonymously. But NEVER take Epstein donations."

That statement is NOT truthfully summarized:

"Lessig doubles down: IF you take Epstein's money, do it in secret."

And yes, there have been headlines and ledes since the beginning of newspapers. But "newspapers" are a different technology from "newspapers on the Internet."

"Newspapers" are published once, mistakes and all, and then (mainly) forgotten. "Newspapers on the Internet" are "published" every time someone clicks a link.

That difference creates a real difference in incentives — and hence different risks — for which the law should account.

Before, the Times didn't earn anything more if I was drawn into an article on page 6 over one on page 3.

That's not true now: Now every click = $ & an indirect reward for the author.

That means the incentive to use headlines to draw attention is different — which is why the term "clickbait" is familiar to us today, but (the OED reports) not 20 years ago.

And which is why the law of defamation should be especially concerned with headlines and ledes now versus 20 years ago.

ESPECIALLY when the link is not accessible unless you pay/register on the site — as is true with the NYT.

And so have courts in the First Circuit begun to realize — and I suspect will recognize in this case of a false and defamatory headline/lede crafted to draw people into an interview.

"But is suing the Times the right response here?"

Hell no. The right response would have been for the Times to correct its false and defamatory headline/lede — as I had asked.

But alas, it is the age of Trump — sharpies over concessions, until the world moves on.

Unless it doesn't. See clickbaitdefamation.org.

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