US defamation law is not strict at all. It bends over backwards to respect the First Amendment. Truth is a complete defense. UK defamation law, and the law of many other un-free countries, is pretty ridiculous and I do think it’s unethical to take advantage of that. But in the US it’s so hard to bring a defamation suit that even bringing one and not being shot down by the anti-SLAPP law is strong evidence that the plaintiff is in the right.
I haven’t reviewed it closely enough to know if there’s enough for a viable defamation suit, but if there is, NL absolutely should sue Pace and those getting mad about that threat should be ashamed of themselves. A norm that you should not bring, or threaten to bring, lawsuits against people who are wronging you in a way the law recognizes as wrong is very very very bad. That norm privileges those who are doing wrong, at the expense of the innocent.
I’ve noticed that among those who most strongly condemn the idea of bringing a defamation lawsuit, almost all also assume that Lightcone would win the suit. I have seen nobody make the case that this is a slam-dunk defamation case but that Nonlinear should still never consider pursuing it on principle.
I believe that Nonlinear would win, and that actually doing so as of now would be mildly wrong.
It’s worth distinguishing between the threat they made and bringing the actual lawsuit; in this comment you talk about the lawsuit, but in your clarification below you talk about the threat of one. Even if I lay aside the obvious justification for the threat and only consider the possible harms, they’re so insignificant that I don’t think they’re worth considering; I feel like the threat was well justified.
I can definitely be persuaded of this, and that’s in line with the conclusion I was aiming towards in my last section: lawsuits are a last resort and a sign of an embarrassing failure to resolve disputes any other way. The EA community prides itself on having better-than-median approaches to these things, so it can and should find a satisfactory resolution that does not involve an actual lawsuit.
Presumably you’re looking at some sort of arbitration? Here’s the chaIlenge I see: in general, the EA community seems very hesitant to bring outsiders into this sort of thing. However, it may often be difficult to find insiders who would be accepted by all as truly neutral, who also have the necessary skillset and bandwidth.
This is a favorable situation for arbitration from a structural point of view—Lightcone and Nonlinear seem to be roughly the same weight, by which I mean that their ability to present their case to an arbitrator seems roughly equal and that neither seems vastly more powerful in a way that risks an arbitrator deferring to them. In addition, both are probably in a position to pay for the costs of arbitration if they lose. Under those circumstances, some sort of private dispute resolution is viable in a way that it wouldn’t be if (e.g.) Open Phil was one of the disputants.
I maintain, of course, that the cleanest and best resolution would be for LC to back off of trying to litigate every specific claim to its maximum capacity and instead acknowledge the ways going on a hunt only for negative information and then refusing to pause to consider exculpatory evidence (including a point they agree was exculpatory on an accusation they agree was significant) poisoned the well in the dispute as a whole—even expecting them to continue to believe they were more-or-less correct about NL.
As things stand, it looks almost inevitable that Ben’s next post will focus primarily on relitigating specific claims and aiming to prove he really was right about NL. Oliver has, however, indicated at least some inclination towards the idea that if that does not persuade people, they will be more open to considering the procedural points I raise here. I believe him in that and am broadly optimistic that what I anticipate will be a lukewarm response to that further litigation will open the door to a clean resolution.
Failing a broadly community-satisfactory outcome from that, it does seem like an ideal case for arbitration or something that fills the same role, yes.
This is helpful; thanks. It brings up something I have been internally musing about (not specifically about your post or comments) --
For this exercise, let’s (roughly) condense the criticism of Lightcone into “They have acted like a partisan advocate, rather than a neutral truthseeker.” I can think of three ways to go from there, which have a good bit of overlap:
“We expect everyone to be a neutral truthseeker here; partisan advocacy is against our norms.”
“We accept some degree of advocacy from both sides here, but Lightcone went way over the line of permissible advocacy here.”
“A core problem is that Lightcone presented itself as a neutral truthseeker conducting an ‘investigation,’ when in fact its actions were that of a partisan advocate.”
As someone who is focused more about setting norms in the future than arbitrating Lightcone’s specific conduct per se, it might be helpful for future norm-building if Lightcone’s critics are clear about the extent to which each of these three pathways explains how they believe that Lightcone went astray. My guess is that it is some combination of number 2 and number 3 for most people, but I don’t actually know that.
People who think Lightcone would win (ie “no libel”) tend to treat the suit as a threat simply to waste their time and money. I haven’t seen many people who strongly think Nonlinear would win (ie “libel”) but that threatening a (winning) suit would be wrong of them.
I recognize that there is all kinds of relevant context, and I really don’t mean this as some kind of cheap “gotcha” or whatever, and think there are a bunch of ways in which this is reasonable, but Nonlinear did sound like they were claiming that this was a slam-dunk case in their email to us:
Given the irreversible damage that would occur by publishing, it simply is inexcusable to not give us a bit of time to correct the libelous falsehoods in this document, and if published as is we intend to pursue legal action for libel against Ben Pace personally and Lightcone for the maximum damages permitted by law. The legal case is unambiguous and publishing it now would both be unethical and gross negligence, causing irreversible damage.
I do think this mattered quite a bit for at least my reaction (though it’s more that Ben’s reaction here mattered).
Again, I do think there are ways in which saying this kind of thing is understandable, especially under time pressure, and also I am not an expert in libel law, but Nonlinear claiming that the legal case was unambiguous, despite me being reasonably confident that it wasn’t, was one of the things that made me interpret this as more of a bluff and an intimidation tactic than a serious attempt to fairly use the legal tools available to achieve a just outcome.
I’m not sure how this would contradict my point. You don’t think the threat was reasonable because you don’t think the case was a slam dunk. If you thought they actually had a slam dunk case against you and were virtually guaranteed to win via summary judgment, do you think a libel suit would be a reasonable threat?
If they actually had a slam dunk case, I would react somewhat differently, though still perceive a libel suit in that context as a very aggressive thing to do.
If Nonlinear had accurately represented their chances of winning, then I would have perceived it as less of an intimidation attempt (like, if the Nonlinear email said “we aren’t confident we would win a libel suit, but given the stakes for us we have no choice”, I do think that would have caused me to perceive the email pretty differently).
Relatedly, if I thought that the case was obviously a slam dunk, and they had said so, that also would have felt less like intimidation to me. It would have still been a kind of risky threat, but as @Jason pointed out in another comment on this post, one of the most pernicious problems with libel suits is invoking the threat of them, without actually ever having to pay up on the cost of going through with them, and overstating your chances of success is correlated with that.
I do also think that a lawsuit that was very likely to succeed would be correlated with having more of an ethical case (not strongly, but at least somewhat).
I think you may be assuming in part that the plaintiff is at least a limited purpose public figure and would have to prove actual malice rather than mere negligence. One has to show negligence to collect on a lot of torts. Yes, there are extra/early screening mechanisms because of abusive use of defamation suits, but those exist in other areas too—like medical malpractice, qualified immunity, etc.
The flipside is that US judgments can be truly eye-popping. I have no love lost for Guliani and even less for Alex Jones, but it’s hard for me to accept that compensatory damages for people telling obvious lies about someone should approach an order of magnitude higher than they would likely be for tortiously killing the person (e.g., by speeding). So lower risk than most other places, but the liability if you lose can be devastating.
Are Nonlinear and its employees LPPFs here? I’m not opining beyond noting that is non-obvious to me. One could view this more as a dispute over, e.g., alleged non-provision of vegan food to staff, which doesn’t strike me as a matter of public concern.
This is a weaker defense than it sounds: a statement can be true while also not turning out to be something you can convince a court is most likely to be true.
I disagree that they should necessarily sue if they can win.
NL suing would cause further controversy and damage to their reputation.
Lawsuits should be a weapon of last resort; in this case, it remains plausible that either Lightcone will eventually apologize, or that NL can win over the community. (Arguably they are in the process of doing so?)
A lawsuit is a negative-sum game for the EA community, due to the substantial lawyer fees; depending on the damages, it could be financially negative even for the winner.
In the event of a successful lawsuit, I believe we should think very mildly poorly of NL, and extremely poorly of Lightcone.
In the event of a successful lawsuit, we should consider NL fully vindicated and not engage in this sort of reputational retribution for daring to defend their rights. Actions that successfully punish wrongdoers are generally not negative sum because they discourage future misconduct. This is true even where it’s negligent and not malicious; knowing one may face consequences encourages greater care in the future.
Edit: I can see reasons it might be unfair to pursue a defamation suit against an unsophisticated/under-resourced party where it’s a really close call legally. But we are talking about legally sophisticated parties who effectively spent $ 6 figures’ worth of their time on this; the legal fees are chump change compared to what they’ve already put in.
I’m suspicious that Lightcone has already been deterred.
Even if they haven’t, we should prefer/pursue punishments that don’t involve setting a bunch of money on fire to pay lawyers, with a lawsuit as the last resort; we are not yet at that last resort, and probably won’t ever end up there.
Deterrence isn’t merely about Lightcone being deterred from future action, but also about other parties that are considering saying potentially defamatory things regarding others. If they can see that past defamatory statements carried legal consequences, they may be more inclined to exercise greater care; thus harm from future defamatory statements could be avoided.
US defamation law is not strict at all. It bends over backwards to respect the First Amendment. Truth is a complete defense. UK defamation law, and the law of many other un-free countries, is pretty ridiculous and I do think it’s unethical to take advantage of that. But in the US it’s so hard to bring a defamation suit that even bringing one and not being shot down by the anti-SLAPP law is strong evidence that the plaintiff is in the right.
I haven’t reviewed it closely enough to know if there’s enough for a viable defamation suit, but if there is, NL absolutely should sue Pace and those getting mad about that threat should be ashamed of themselves. A norm that you should not bring, or threaten to bring, lawsuits against people who are wronging you in a way the law recognizes as wrong is very very very bad. That norm privileges those who are doing wrong, at the expense of the innocent.
Thank you for saying this.
I’ve noticed that among those who most strongly condemn the idea of bringing a defamation lawsuit, almost all also assume that Lightcone would win the suit. I have seen nobody make the case that this is a slam-dunk defamation case but that Nonlinear should still never consider pursuing it on principle.
I believe that Nonlinear would win, and that actually doing so as of now would be mildly wrong.
It’s worth distinguishing between the threat they made and bringing the actual lawsuit; in this comment you talk about the lawsuit, but in your clarification below you talk about the threat of one. Even if I lay aside the obvious justification for the threat and only consider the possible harms, they’re so insignificant that I don’t think they’re worth considering; I feel like the threat was well justified.
I can definitely be persuaded of this, and that’s in line with the conclusion I was aiming towards in my last section: lawsuits are a last resort and a sign of an embarrassing failure to resolve disputes any other way. The EA community prides itself on having better-than-median approaches to these things, so it can and should find a satisfactory resolution that does not involve an actual lawsuit.
Presumably you’re looking at some sort of arbitration? Here’s the chaIlenge I see: in general, the EA community seems very hesitant to bring outsiders into this sort of thing. However, it may often be difficult to find insiders who would be accepted by all as truly neutral, who also have the necessary skillset and bandwidth.
This is a favorable situation for arbitration from a structural point of view—Lightcone and Nonlinear seem to be roughly the same weight, by which I mean that their ability to present their case to an arbitrator seems roughly equal and that neither seems vastly more powerful in a way that risks an arbitrator deferring to them. In addition, both are probably in a position to pay for the costs of arbitration if they lose. Under those circumstances, some sort of private dispute resolution is viable in a way that it wouldn’t be if (e.g.) Open Phil was one of the disputants.
I maintain, of course, that the cleanest and best resolution would be for LC to back off of trying to litigate every specific claim to its maximum capacity and instead acknowledge the ways going on a hunt only for negative information and then refusing to pause to consider exculpatory evidence (including a point they agree was exculpatory on an accusation they agree was significant) poisoned the well in the dispute as a whole—even expecting them to continue to believe they were more-or-less correct about NL.
As things stand, it looks almost inevitable that Ben’s next post will focus primarily on relitigating specific claims and aiming to prove he really was right about NL. Oliver has, however, indicated at least some inclination towards the idea that if that does not persuade people, they will be more open to considering the procedural points I raise here. I believe him in that and am broadly optimistic that what I anticipate will be a lukewarm response to that further litigation will open the door to a clean resolution.
Failing a broadly community-satisfactory outcome from that, it does seem like an ideal case for arbitration or something that fills the same role, yes.
This is helpful; thanks. It brings up something I have been internally musing about (not specifically about your post or comments) --
For this exercise, let’s (roughly) condense the criticism of Lightcone into “They have acted like a partisan advocate, rather than a neutral truthseeker.” I can think of three ways to go from there, which have a good bit of overlap:
“We expect everyone to be a neutral truthseeker here; partisan advocacy is against our norms.”
“We accept some degree of advocacy from both sides here, but Lightcone went way over the line of permissible advocacy here.”
“A core problem is that Lightcone presented itself as a neutral truthseeker conducting an ‘investigation,’ when in fact its actions were that of a partisan advocate.”
As someone who is focused more about setting norms in the future than arbitrating Lightcone’s specific conduct per se, it might be helpful for future norm-building if Lightcone’s critics are clear about the extent to which each of these three pathways explains how they believe that Lightcone went astray. My guess is that it is some combination of number 2 and number 3 for most people, but I don’t actually know that.
Do you mean “would win” or “would lose” the suit? If the former, the two sentences seem contradictory?
What do you mean?
People who think Lightcone would win (ie “no libel”) tend to treat the suit as a threat simply to waste their time and money. I haven’t seen many people who strongly think Nonlinear would win (ie “libel”) but that threatening a (winning) suit would be wrong of them.
Oh I see, I misread the proper nouns
I recognize that there is all kinds of relevant context, and I really don’t mean this as some kind of cheap “gotcha” or whatever, and think there are a bunch of ways in which this is reasonable, but Nonlinear did sound like they were claiming that this was a slam-dunk case in their email to us:
I do think this mattered quite a bit for at least my reaction (though it’s more that Ben’s reaction here mattered).
Again, I do think there are ways in which saying this kind of thing is understandable, especially under time pressure, and also I am not an expert in libel law, but Nonlinear claiming that the legal case was unambiguous, despite me being reasonably confident that it wasn’t, was one of the things that made me interpret this as more of a bluff and an intimidation tactic than a serious attempt to fairly use the legal tools available to achieve a just outcome.
I’m not sure how this would contradict my point. You don’t think the threat was reasonable because you don’t think the case was a slam dunk. If you thought they actually had a slam dunk case against you and were virtually guaranteed to win via summary judgment, do you think a libel suit would be a reasonable threat?
If they actually had a slam dunk case, I would react somewhat differently, though still perceive a libel suit in that context as a very aggressive thing to do.
If Nonlinear had accurately represented their chances of winning, then I would have perceived it as less of an intimidation attempt (like, if the Nonlinear email said “we aren’t confident we would win a libel suit, but given the stakes for us we have no choice”, I do think that would have caused me to perceive the email pretty differently).
Relatedly, if I thought that the case was obviously a slam dunk, and they had said so, that also would have felt less like intimidation to me. It would have still been a kind of risky threat, but as @Jason pointed out in another comment on this post, one of the most pernicious problems with libel suits is invoking the threat of them, without actually ever having to pay up on the cost of going through with them, and overstating your chances of success is correlated with that.
I do also think that a lawsuit that was very likely to succeed would be correlated with having more of an ethical case (not strongly, but at least somewhat).
I think you may be assuming in part that the plaintiff is at least a limited purpose public figure and would have to prove actual malice rather than mere negligence. One has to show negligence to collect on a lot of torts. Yes, there are extra/early screening mechanisms because of abusive use of defamation suits, but those exist in other areas too—like medical malpractice, qualified immunity, etc.
The flipside is that US judgments can be truly eye-popping. I have no love lost for Guliani and even less for Alex Jones, but it’s hard for me to accept that compensatory damages for people telling obvious lies about someone should approach an order of magnitude higher than they would likely be for tortiously killing the person (e.g., by speeding). So lower risk than most other places, but the liability if you lose can be devastating.
Are Nonlinear and its employees LPPFs here? I’m not opining beyond noting that is non-obvious to me. One could view this more as a dispute over, e.g., alleged non-provision of vegan food to staff, which doesn’t strike me as a matter of public concern.
My statement stands even on a negligence standard. It’s even harder to sue as a pubic figure, but truth is an absolute defense regardless.
This is a weaker defense than it sounds: a statement can be true while also not turning out to be something you can convince a court is most likely to be true.
Unlikely, but to the extent it’s true it mostly favors the defendant. Burden of proof is on the plaintiff.
I disagree that they should necessarily sue if they can win.
NL suing would cause further controversy and damage to their reputation.
Lawsuits should be a weapon of last resort; in this case, it remains plausible that either Lightcone will eventually apologize, or that NL can win over the community. (Arguably they are in the process of doing so?)
A lawsuit is a negative-sum game for the EA community, due to the substantial lawyer fees; depending on the damages, it could be financially negative even for the winner.
In the event of a successful lawsuit, I believe we should think very mildly poorly of NL, and extremely poorly of Lightcone.
In the event of a successful lawsuit, we should consider NL fully vindicated and not engage in this sort of reputational retribution for daring to defend their rights. Actions that successfully punish wrongdoers are generally not negative sum because they discourage future misconduct. This is true even where it’s negligent and not malicious; knowing one may face consequences encourages greater care in the future.
Edit: I can see reasons it might be unfair to pursue a defamation suit against an unsophisticated/under-resourced party where it’s a really close call legally. But we are talking about legally sophisticated parties who effectively spent $ 6 figures’ worth of their time on this; the legal fees are chump change compared to what they’ve already put in.
I’m suspicious that Lightcone has already been deterred.
Even if they haven’t, we should prefer/pursue punishments that don’t involve setting a bunch of money on fire to pay lawyers, with a lawsuit as the last resort; we are not yet at that last resort, and probably won’t ever end up there.
Deterrence isn’t merely about Lightcone being deterred from future action, but also about other parties that are considering saying potentially defamatory things regarding others. If they can see that past defamatory statements carried legal consequences, they may be more inclined to exercise greater care; thus harm from future defamatory statements could be avoided.