If this Headline Catches Your Attention, Can it be Libel?

Published March 2020

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications

A news headline – whether on the printed page or online – is meant to draw attention to the article that follows. It is a short, punchy phrase that is meant to grab the reader and make them pay attention.

But in the modern era, all a casual web reader may see of a news story is the headline above it: if the headline doesn’t entice them to click through to the article online, the headline will be all that they see.

A libel lawsuit in Massachusetts takes on the new role that headlines play in a new era, and the legal implications when a headline, standing alone, is the only thing a reader sees.

The libel lawsuit has been brought by Harvard law professor Lawrence Lessig, who is generally known as an advocate for free speech and open government, among other causes. With this reputation, the headline on a Sept. 16, 2019 New York Times story was surprising: “A Harvard Professor Doubles Down: If You Take Epstein’s Money, Do It in Secret.” Lessig’s lawsuit alleges that the headline was an inaccurate statement of his views and was written as provocative “click-bait” to be shocking and provocative, in order to attract clicks online.

The article beneath the headline was based on an essay Lessing posted online and an interview of Lessig about the resignation of Joichi Ito, head of the renowned Massachusetts Institute of Technology Media Lab. Ito resigned over his solicitations and acceptance of donations for the lab from convicted sex offender Jeffrey Epstein.

The article began with the statement, “It is hard to defend soliciting donations from the convicted sex offender Jeffrey Epstein. But Lawrence Lessig, a Harvard Law professor, has been trying.” But it later explained Lessig’s position in more detail: “Mr. Lessig, who noted that he was a childhood victim of sexual abuse, also argued that the act of veiling Mr. Epstein’s contributions was good, because it avoided ‘whitewashing’ his (Epstein’s) reputation.”

In another essay reacting to the Times article, Lessig pointed out that while the original essay did justify accepting Epstein’s donations anonymously, it also said that this would backfire in the long run, and that MIT should not have accepted the money. “Maybe my argument is clearer – and I certainly hope, less painful – on Twitter,” Lessig wrote, followed by screenshots of his Twitter posts clarifying his argument in the original essay:

  • Were I king, I would forbid great universities from taking blood money (money earned from doing great harm) or money from criminals.
  • I am not king. And I don’t expect that rule will become the norm among great universities. Thus, I proposed a second, less constraining rule:
  • IF (notice that’s in capitals; I wish I could change the font size and maybe bold it, but whatever) IF IF IF (that kind of does it) a university takes either kind of money, THEN AT LEAST it should take it anonymously.
  • Why anonymously? Because IF (or rather, IF IF IF) you’re going to take it, AT THE VERY LEAST avoid giving the doers of wrong the chance to launder their reputation.
  • … [two messages omitted]
  • But here then is the critical point that even the editors at the great New York Times missed: Even this second-best rule should not have applied to Epstein’s money. That is, even if you take the tax fraud’s money (anonymously), you should not take the pedophile’s.

Lessig added that he was not defending the actions of MIT or Ito in soliciting or accepting Epstein’s donations. But he did object to the scapegoating of Ito when he said that the problem was the entire system by which universities such as MIT accept donations.

Lessig claims that he tried to convey this nuanced argument when speaking to the Times reporter, and then when the article was fact-checked. And while his complaint argues that the entire article misrepresented his position and harmed his reputation, he specifically argues that the “sensationalized, false and defamatory ‘click-bait’ Internet headline and lede” impeded his ability to be a leader in discussions of how universities and other non-profit organizations should deal with donations from unsavory individuals, and more generally harmed his reputation.

The headline, Lessig wrote in the second essay, makes the story more compelling. But it and the lede, he added, “are literally false.” And such hype, he concluded, is the problem with news media today. As stated in the legal complaint, “… many, if not most, readers never read past the clickbait and that their takeaway concerning the target of the headline is limited to what they read in the headline.”

But courts have differed on whether a headline can be considered in isolation in a defamation case, or whether the headline must be combined with the article and other accompanying material to determine whether the material as a whole meets the standards for defamation.

Here in South Carolina, in a 1968 case and again in a 1976 case, the South Carolina Supreme Court held that, as stated in the latter case, “both the headline and the article following it must be considered as one document in determining whether it is defamatory.” The South Carolina Court of Appeals endorsed and applied this position in two 2001 cases, and the state Supreme Court reiterated it in both 1997 and 2006.

Outside of South Carolina, most courts that have considered the issue have followed this rule. But in some cases, courts have considered the headline separately: when it is so prominent compared to the accompanying article that it conveys a message on its own, or when the headline does not accurately summarize the article.

Lessig is arguing that both of these conditions are the case with the Times’ headline: that because of its placement online, the headline is more prominent and important than the accompanying article, and that the headline also mischaracterizes his position.

The online environment in which many people now get their news – and headlines – may give credence to Lessig’s argument that headlines must now be considered on their own. But a court’s acceptance of this argument would abandon the general rule that has emerged that under most circumstances headlines should not be considered on their own.

Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communication and is Of Counsel to Fenno Law in Charleston/Mount Pleasant, although any opinions are his own. He has worked in media law for more than 18 years, and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice.

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