Thanks for writing this! Iâd been putting something together, but this is much more thorough.
Here are the parts of my draft that I think still add something:
Iâm interested in two overlapping questions:
Should Ben have delayed to evaluate NLâs evidence?
Was Nonlinear wrong to threaten to sue?
While Iâve previously advocated giving friendly organizations a chance to review criticism and prepare a response in advance, primarily as a question of politeness, thatâs not the issue here. As I commented on the original post, the norm Iâve been pushing is only intended for cases where you have a neutral or better relationship with the organization, and not situations like this one where there are allegations of mistreatment or you donât trust them to behave cooperatively. The question here instead is, how do you ensure the accusations youâre signal-boosting are true?
Hereâs my understanding of the timeline of âadversarialâ fact checking before publication: timeline. Three key bits:
LC first shared the draft 21hr before posting, which included additional accusations
NL responded to both by asking for a week to gather evidence that they claimed would change LCâs mind, and only threatened to sue when LC insisted on going ahead without hearing their side of the story.
Overall, it does look to me like Ben should have waited. That he was still learning his post had additional false accusations right up to publication, including one so close to publication that he didnât have time to address it, meant he should have expected that if he didnât delay it would go to publication containing additional false claims. And Ben seems to have understood this, and told NL two days before that âI do expect youâll be able to show a bunch of the things you saidâ and âI did update from things you shared that Aliceâs reports are less reliable than I had thoughtâ. Additionally, three days (some of which NL was traveling for) is not long to rebut such a long list of accusations, and some of the accusations were shared with NL less than a day in advance of publishing.
Given that I think itâs clear Ben should have given NL some time to assemble conflicting evidence, do I also need to conclude that it was ok for NL to threaten to sue if he didnât? That is something I really donât want to do: Iâm not a fan of how strict defamation law is, and I think itâs really valuable that itâs almost never used in our community. If we instead had a culture where everyone is being super careful never to say anything that they would lose a suit over I think weâd see a tremendous chilling effect where many true and important things would never come out. This is especially important around allegations of abusive behavior, where proving the truth of anything can be quite difficult and abusers have often taken advantage of this.
On the other hand, defamation law at its best deters people from saying false things, including fact checking before republishing othersâ claims, especially in cases where false statements are likely to have strong personal and professional impacts. NL threatening a suit here seems to me like the law used correctly even given the tighter scope Iâd like to see for defamation law, and while itâs still not something I would do and Iâd be sad if it became common in our community, I donât think NL was actually wrong to do it.
Note that Iâm not making an overall âNonlinear: yes or noâ judgement here; please donât interpret this post as a view on whether NL mistreated their employees or on how trustworthy their former employees are. Iâve only been looking at the two questions above: should Ben have waited for additional evidence, and was it an unreasonable escalation for NL to threaten to sue.
A few thoughts about how future posts like LCâs could go better:
Be clear about voice. Benâs post often clarifies that heâs relaying information (âAlice reported thatâ) but at other times reports Alice or Chloeâs perspective as his own (ânobody in the house was willing to go out and get her vegan food, so she barely ate for 2 daysâ). The latter would be warranted if Ben had validated the claims heâs relaying, but my understanding is this was instead just a bit sloppy.
If you have your facts straight you donât have to give the people youâre writing about a chance to look over a draft and point out errors, and in cases where, for example, people are telling the story of abuse that happened to them thatâs often a reasonable decision. On the other hand, especially if youâre reporting on a situation you werenât a part of, I think youâre really very likely to have some mistakes. Sharing your postâs claims section (you donât have to share parts of the post that donât make new claims) for review is really hard to beat as a way of avoiding publishing false claims.
How much time to give for assembling evidence depends on how many claims there are, and I think you can do some prioritization. You can ask if they can provide evidence for some of the places they think youâre most clearly wrong, and if they canât do a good job with this given a few days I think youâre justified in assuming their claims of counter-evidence are bluster.
When giving time to fact check and gather evidence, get agreement on deadlines up front so things donât get pushed back repeatedly: âIâll review anything you get me before EOD Thursday; does that work?â While you should sort out all your claims before starting this process, if you want to add new claims after then you need to push the deadline out to give them more time to respond.
I really like Michael Plantâs comment on a previous post about issues with an EA org (which @Habryka also worked on), responding to someone who thought the post was âcharitable and systematic in excess of reasonable cautionâ and objected to the âfully comprehensive nature of the post and the painstaking lengths it goes to separate out definitely valid issues from potentially invalid onesâ:
I take your point as âarenât we being too nice to this guy?â but I actually really like the approach taken here, which seems extremely fair-minded and diligent. My suspicion is this sort of stuff is long-term really valuable because it establishes good norms for something that will likely recur in future. Iâd be much more inclined to act with honesty if I believed people would do an extremely thorough public investigation into everything Iâd said, rather than just calling me names and walking away.
If you think that NL was overall in the right then of course LC should have been more careful, but even if you think NL is run by horrible people I think you still should come to that conclusion. This combination of posts and overwhelming amounts of conflicting screenshots and stories seems to have left most of the community not knowing what to think. A post from LC that led with airtight accusations and then included supplementary material for fuzzier issues would have been much more effective towards its goals, enough so that I think more hours spent in âadversarial fact checkingâ, resolving conflicting claims, would have been far more effective per hour than the average for this project.
I almost always post immediately after writing things, since thatâs how my motivation works, but in this case I sent my post out for review. I got some good feedback from several people, but now that the top-level post has opened the conversation about appropriate process in situations like these I think talking in public makes more sense.
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 itâs unethical to take advantage of that. But in the US itâs 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 havenât reviewed it closely enough to know if thereâs 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.
Iâve 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.
Itâs 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, theyâre so insignificant that I donât think theyâre worth considering; I feel like the threat was well justified.
I can definitely be persuaded of this, and thatâs 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 youâre looking at some sort of arbitration? Hereâs 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 viewâLightcone 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 wouldnât 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 wholeâeven expecting them to continue to believe they were more-or-less correct about NL.
As things stand, it looks almost inevitable that Benâs 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, letâs (roughly) condense the criticism of Lightcone into âThey have acted like a partisan advocate, rather than a neutral truthseeker.â I can think of three ways to go from there, which have a good bit of overlap:
âWe expect everyone to be a neutral truthseeker here; partisan advocacy is against our norms.â
âWe accept some degree of advocacy from both sides here, but Lightcone went way over the line of permissible advocacy here.â
âA core problem is that Lightcone presented itself as a neutral truthseeker conducting an âinvestigation,â when in fact its actions were that of a partisan advocate.â
As someone who is focused more about setting norms in the future than arbitrating Lightconeâs specific conduct per se, it might be helpful for future norm-building if Lightconeâs 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 donât actually know that.
People who think Lightcone would win (ie âno libelâ) tend to treat the suit as a threat simply to waste their time and money. I havenât seen many people who strongly think Nonlinear would win (ie âlibelâ) but that threatening a (winning) suit would be wrong of them.
I recognize that there is all kinds of relevant context, and I really donât mean this as some kind of cheap âgotchaâ 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 itâs more that Benâs 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 wasnât, 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.
Iâm not sure how this would contradict my point. You donât think the threat was reasonable because you donât 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 âwe arenât confident we would win a libel suit, but given the stakes for us we have no choiceâ, 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/âearly screening mechanisms because of abusive use of defamation suits, but those exist in other areas tooâlike 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 itâs 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? Iâm 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 doesnât 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 itâs 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/âunder-resourced party where itâs a really close call legally. But we are talking about legally sophisticated parties who effectively spent $ 6 figuresâ worth of their time on this; the legal fees are chump change compared to what theyâve already put in.
Iâm suspicious that Lightcone has already been deterred.
Even if they havenât, we should prefer/âpursue punishments that donât 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 wonât ever end up there.
Deterrence isnât 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.
Thanks for writing this! Iâd been putting something together, but this is much more thorough.
Here are the parts of my draft that I think still add something:
Iâm interested in two overlapping questions:
Should Ben have delayed to evaluate NLâs evidence?
Was Nonlinear wrong to threaten to sue?
While Iâve previously advocated giving friendly organizations a chance to review criticism and prepare a response in advance, primarily as a question of politeness, thatâs not the issue here. As I commented on the original post, the norm Iâve been pushing is only intended for cases where you have a neutral or better relationship with the organization, and not situations like this one where there are allegations of mistreatment or you donât trust them to behave cooperatively. The question here instead is, how do you ensure the accusations youâre signal-boosting are true?
Hereâs my understanding of the timeline of âadversarialâ fact checking before publication: timeline. Three key bits:
LC first shared the overview of claims 3d before posting.
LC first shared the draft 21hr before posting, which included additional accusations
NL responded to both by asking for a week to gather evidence that they claimed would change LCâs mind, and only threatened to sue when LC insisted on going ahead without hearing their side of the story.
Overall, it does look to me like Ben should have waited. That he was still learning his post had additional false accusations right up to publication, including one so close to publication that he didnât have time to address it, meant he should have expected that if he didnât delay it would go to publication containing additional false claims. And Ben seems to have understood this, and told NL two days before that âI do expect youâll be able to show a bunch of the things you saidâ and âI did update from things you shared that Aliceâs reports are less reliable than I had thoughtâ. Additionally, three days (some of which NL was traveling for) is not long to rebut such a long list of accusations, and some of the accusations were shared with NL less than a day in advance of publishing.
Given that I think itâs clear Ben should have given NL some time to assemble conflicting evidence, do I also need to conclude that it was ok for NL to threaten to sue if he didnât? That is something I really donât want to do: Iâm not a fan of how strict defamation law is, and I think itâs really valuable that itâs almost never used in our community. If we instead had a culture where everyone is being super careful never to say anything that they would lose a suit over I think weâd see a tremendous chilling effect where many true and important things would never come out. This is especially important around allegations of abusive behavior, where proving the truth of anything can be quite difficult and abusers have often taken advantage of this.
On the other hand, defamation law at its best deters people from saying false things, including fact checking before republishing othersâ claims, especially in cases where false statements are likely to have strong personal and professional impacts. NL threatening a suit here seems to me like the law used correctly even given the tighter scope Iâd like to see for defamation law, and while itâs still not something I would do and Iâd be sad if it became common in our community, I donât think NL was actually wrong to do it.
Note that Iâm not making an overall âNonlinear: yes or noâ judgement here; please donât interpret this post as a view on whether NL mistreated their employees or on how trustworthy their former employees are. Iâve only been looking at the two questions above: should Ben have waited for additional evidence, and was it an unreasonable escalation for NL to threaten to sue.
A few thoughts about how future posts like LCâs could go better:
Be clear about voice. Benâs post often clarifies that heâs relaying information (âAlice reported thatâ) but at other times reports Alice or Chloeâs perspective as his own (ânobody in the house was willing to go out and get her vegan food, so she barely ate for 2 daysâ). The latter would be warranted if Ben had validated the claims heâs relaying, but my understanding is this was instead just a bit sloppy.
If you have your facts straight you donât have to give the people youâre writing about a chance to look over a draft and point out errors, and in cases where, for example, people are telling the story of abuse that happened to them thatâs often a reasonable decision. On the other hand, especially if youâre reporting on a situation you werenât a part of, I think youâre really very likely to have some mistakes. Sharing your postâs claims section (you donât have to share parts of the post that donât make new claims) for review is really hard to beat as a way of avoiding publishing false claims.
How much time to give for assembling evidence depends on how many claims there are, and I think you can do some prioritization. You can ask if they can provide evidence for some of the places they think youâre most clearly wrong, and if they canât do a good job with this given a few days I think youâre justified in assuming their claims of counter-evidence are bluster.
When giving time to fact check and gather evidence, get agreement on deadlines up front so things donât get pushed back repeatedly: âIâll review anything you get me before EOD Thursday; does that work?â While you should sort out all your claims before starting this process, if you want to add new claims after then you need to push the deadline out to give them more time to respond.
I really like Michael Plantâs comment on a previous post about issues with an EA org (which @Habryka also worked on), responding to someone who thought the post was âcharitable and systematic in excess of reasonable cautionâ and objected to the âfully comprehensive nature of the post and the painstaking lengths it goes to separate out definitely valid issues from potentially invalid onesâ:
If you think that NL was overall in the right then of course LC should have been more careful, but even if you think NL is run by horrible people I think you still should come to that conclusion. This combination of posts and overwhelming amounts of conflicting screenshots and stories seems to have left most of the community not knowing what to think. A post from LC that led with airtight accusations and then included supplementary material for fuzzier issues would have been much more effective towards its goals, enough so that I think more hours spent in âadversarial fact checkingâ, resolving conflicting claims, would have been far more effective per hour than the average for this project.
I almost always post immediately after writing things, since thatâs how my motivation works, but in this case I sent my post out for review. I got some good feedback from several people, but now that the top-level post has opened the conversation about appropriate process in situations like these I think talking in public makes more sense.
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 itâs unethical to take advantage of that. But in the US itâs 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 havenât reviewed it closely enough to know if thereâs 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.
Iâve 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.
Itâs 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, theyâre so insignificant that I donât think theyâre worth considering; I feel like the threat was well justified.
I can definitely be persuaded of this, and thatâs 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 youâre looking at some sort of arbitration? Hereâs 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 viewâLightcone 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 wouldnât 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 wholeâeven expecting them to continue to believe they were more-or-less correct about NL.
As things stand, it looks almost inevitable that Benâs 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, letâs (roughly) condense the criticism of Lightcone into âThey have acted like a partisan advocate, rather than a neutral truthseeker.â I can think of three ways to go from there, which have a good bit of overlap:
âWe expect everyone to be a neutral truthseeker here; partisan advocacy is against our norms.â
âWe accept some degree of advocacy from both sides here, but Lightcone went way over the line of permissible advocacy here.â
âA core problem is that Lightcone presented itself as a neutral truthseeker conducting an âinvestigation,â when in fact its actions were that of a partisan advocate.â
As someone who is focused more about setting norms in the future than arbitrating Lightconeâs specific conduct per se, it might be helpful for future norm-building if Lightconeâs 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 donât actually know that.
Do you mean âwould winâ or âwould loseâ the suit? If the former, the two sentences seem contradictory?
What do you mean?
People who think Lightcone would win (ie âno libelâ) tend to treat the suit as a threat simply to waste their time and money. I havenât seen many people who strongly think Nonlinear would win (ie âlibelâ) 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 donât mean this as some kind of cheap âgotchaâ 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 itâs more that Benâs 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 wasnât, 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.
Iâm not sure how this would contradict my point. You donât think the threat was reasonable because you donât 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 âwe arenât confident we would win a libel suit, but given the stakes for us we have no choiceâ, 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/âearly screening mechanisms because of abusive use of defamation suits, but those exist in other areas tooâlike 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 itâs 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? Iâm 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 doesnât strike me as a matter of public concern.
My statement stands even on a negligence standard. Itâs 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 itâs 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 itâs 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/âunder-resourced party where itâs a really close call legally. But we are talking about legally sophisticated parties who effectively spent $ 6 figuresâ worth of their time on this; the legal fees are chump change compared to what theyâve already put in.
Iâm suspicious that Lightcone has already been deterred.
Even if they havenât, we should prefer/âpursue punishments that donât 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 wonât ever end up there.
Deterrence isnât 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.