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I appreciate this response and would love to dive into it more. I’m only loosely familiar with the dialogue format on this site but am definitely game, though I’d request an asynchronous one since I prefer having time to gather my thoughts and maintaining a bit of flexibility around each of our schedules.
I edited the original to "his collaborator." My apologies for the imprecision; I'll be more careful about attribution.
Ben refused to update his post at the time in dispute--the moment when the lawsuit threat was sent. That he was willing to update it after publishing false information, and remains willing to update it, is not material to that point. Spencer provided important context which, when seen in full, dramatically changed public understanding of one allegation in the final article. You and Ben refused to delay publication to update that allegation before the article went live. When considering whether a lawsuit threat was reasonable and whether the publication of that allegation as written was actionably defamatory, that moment of publication is the relevant one. Since I am responding to Gwern's criticism of my defense of that moment, I figured the context for that was clear.
As for whether my summary of the process is fair, I recognize we disagree here but stand by it and would say the same whether or not he included that disclaimer. The final article and the process that led to it was not totally normal by any stretch, an argument I present extensively in my post and throughout our conversations here. It is not normal to spend six months and hundreds of hours investigating negative information about people in your community, then publicizing it with a condemnation of those people to your whole community. I would definitely be keen to hear more about the actual process via DM, though, and could certainly see it changing my understanding of that process in important ways.
Since the /r/slatestarcodex comment section is unlikely to get the long-term traffic this mirror is, I want to copy my reply there over here as well.
I’m honestly really frustrated by your response to this post. The incident I describe is not trivial and it is not tangential to the purposes of the rationalist community. It directly damages the community’s credibility towards its core goals in a major way. You are about as trusted as a public figure gets among the rationalists, and when you see this whole thing, you vote it down and rebuke me because I don’t hate libel lawsuits as much as I hate libel.
Rationalists spend a lot of time criticizing poor journalistic practices from outside the community. It should raise massive alarms that someone can spend six months digging up dirt on another community member, provide scant time to reply and flat-out refuse to look at exculpatory evidence, and be praised by the great majority of the community who noticed while those who pointed out the issues with what was going on were ignored.
If a prominent person in your community spends six months working to gather material to destroy your reputation, then flat-out refuses to look at your exculpatory evidence or to update his post in response to exculpatory evidence from another trusted community member—evidence he his collaborator now admits overturns an allegation in the article—there is nothing at all disproportionate or inappropriate about a desperate lawsuit threat—not a threat if the post goes live, but a threat if they won’t even look at hard evidence against their claims—minutes before the reputation-destroying post goes live. That’s not the strong crushing the weak whistleblower, that’s a desperate response to reputational kamikaze.
It is not an issue with my post that I accurately defend that libel lawsuit threat as a sane response to an insane situation. It is an issue with the rationalist community as a whole that they nodded along to that insane situation, and an issue with you that your major takeaway from my post is that I’m wrong about lawsuits.
A six-month campaign to gather negative info about someone is not a truth-seeking process, it is not a rational process, and it is not a process to which the community should respond by politely arguing about whether lawsuits could possibly be justified as a response. It is a repudiation of the principles the rationalist community espouses and demands an equally vehement response, a response that nobody within the community gave until I stumbled over the post by happenstance three months later.
You are wrong. Your takeaway from my article is wrong. What happened during that investigation was wrong, and sufficiently wrong that I see no cause to reply by coming out swinging about the horrors of the legal system. You should be extinguishing the fire in your own community’s house, and the people cheering you on for responding to someone trying to put that fire out with a rebuke are helping you burn down your own community's credibility. You had no obligation to respond to the situation; having responded, though, you take on a duty to it which you are neglecting by responding in this way given your stature within this community and the gravity of the original error.
After Ben’s post, 38% of responses to Nathan’s poll disagreed that there should be a way for Nonlinear to continue doing charity work with the support of the community, while 22% agreed. It’s unclear to me that a six-month campaign to gather negative information and then warn people about a group in your community is any less divisive in that regard than a lawsuit.
I think I am also more skeptical than you about how much Nonlinear's counterclaims exonerate them
I mention this in the post and realize this is a frustrating frame for the Lightcone people who worked hard on this story, but I really just don't care a ton about Nonlinear qua Nonlinear. It's a small charity org with an unconventional structure working in a general area (AI safety) a lot of rationalists see as important and I have ambiguous feelings on in terms of the efficacy of charity work. I don't have a lot of weight as to where people should land on whether their claims "exonerate" them in a true sense, particularly because the stakes feel a lot more like "roommate drama" stakes than "FTX" ones to me.
What I do care very much about is that the rationalist/EA community not fall into the same callout/dogpiling/"cancel" cultural traps I've seen repeat in so many other subcultures. Spending six months to gather only negative information about someone -- particularly someone in your own community, where your opinion will carry a lot of weight -- before presenting it in public is bad, full stop. It works in a courtroom because there is a judge there, but the court of public opinion demands different norms.
Doing so and then being in such a hurry to present it that you won't even pause when someone not under investigation brings in hard evidence against one of your claims and tells you you're making a mistake? That only compounds the issue.
the risks of the adversarial slowdown, or threatening/pressuring witnesses into silence
Part of this feels like a byproduct of having spent six months gathering negative information about them. You all were in an extraordinarily adversarial frame towards them, where my sense is that you all (at least Ben) emotionally felt they were something akin to monsters wearing human skinsuits, some sort of caricature of cartoon villains. From my own outside-community view, you all seem like decent, flawed people with the same broadly praiseworthy, somewhat flawed philosophy.
More than that, though: the witnesses were already not silent. They'd spent a year being anything but silent. They'd spent the better part of six months feeding information to Ben, who had it and could do what he felt he ought with it independent of Nonlinear's actions. "Please give us a week to present evidence" paired with reassurance that they're not trying to stop you from publishing altogether contains a clear hard deadline with a clear request and gives no reason to indicate an indefinite delay.
I push towards publication a lot of things a lot of people would really rather we not publish (on BARPod). I don't have quite the proximity to them you guys had to Nonlinear (which goes both ways--you were more reachable by whatever their response was, but you also shared a great deal of context and had a lot more room for cooperation). They can't do anything to indefinitely delay publication. When we're satisfied with the story, we put it up. It is not in their control. When it comes to the publication of your own piece on your own site, you hold all the cards.
A lot of people have strong, competing opinions about this topic. The votes on my own comments have been all over the place, often careening wildly from one hour to the next.
That’s where the discussion prior to hiring is important for me, and there it was clearly laid out that the compensation would be $1k/month plus cost of living. If there were material inconsistencies between that and the actual contract, I’d be sympathetic, but I just didn’t see any.
I do agree that getting into writing earlier over later is better and that (inasmuch as we understand the timing) starting with no written agreement was imprudent, but it doesn’t sway me on the broader picture there.
If they refused to sign the contract presented to them at the start of work and then continued to perform that work, it would be a bizarre decision that would put them in a legally ambiguous spot. That is, since you are keen on getting a direct answer to a contrived hypothetical: yes, that strange sequence, for which neither you nor NL has provided any evidence, would decrease the likelihood that a court would find a legally enforceable contract existed, but acceptance in the form of continuing to do the work in question would weigh the other direction.
You’re straining at gnats on this and other points, and I don’t see much value to continuing this line of inquiry. I look forward to seeing Ben’s response to NL and appreciate the time you’ve taken to respond so far; inasmuch as you can provide hard evidence for points like this I will be keen to see it.
I am currently saying I am confident you a) have to meet a steep burden of proof to demonstrate any flaws you speculate in the contract as it stands, a burden I have intense doubts you can or will meet and b) do not know what you are talking about with contract law and are fixated on tangential details. Until and unless you can meet that burden of proof, you do not have a leg to stand on.
It is a totally normal term, yes, just not one that was germane to the question at hand.
In terms of making a legal versus ethical argument, I think contracts should be seen primarily as legal tools to settle disputes, such that talking about "valid" contracts outside the legal sense is not particularly useful.
Written contracts are the means to resolve those disputes. That is the specific, precise function they serve. Your argument here strikes me as an invisible-dragon one, particularly given the time both sides have spent presenting evidence. I believe my level of confidence is precisely appropriate to the situation: a contract existed; it was discussed in advance; it was fulfilled; now it is doing precisely what contracts do and settling a dispute. The burden of proof has entirely shifted from Nonlinear here.
I concur with @ymeskhout and overall recommend more wariness when speaking about legal principles. The timing of pay, particularly if they willingly withheld any, would be material if she raised a contract dispute in court, but given her apparent control over that timing and her ultimate acceptance of the pay is unlikely to have much weight in anything as things stand, and doesn't really raise fairness concerns unless she asked for the stipend earlier and got rebuffed.
An "implicit contract that was established via a mixture of the written contract and verbal communication" isn't really a thing the way you're conceptualizing it—generally speaking, verbal communication before a written contract just isn't particularly important.
I can accept that there was an ongoing dispute. I cannot accept that Chloe had any grounds on which to dispute it. They told her what compensation would be going in; they provided a contract consistent with that; she accepted the job knowing precisely what the compensation was. To be blunt, I think it speaks very poorly of someone to accept a position and then immediately dispute the compensation they accepted and, having been in very similar positions myself, have no sympathy whatsoever for Chloe in the dispute. She is in the wrong and should not have accepted the job if she was not satisfied with the compensation package.
Poor choice of words, yes. It was the community council or panel; I can DM more complete details if you'd like but it was all above-board and there is to the best of my knowledge no board of directors making decisions about ACX meetups.
I considered going into actual malice and think Harte-Hanks is a close enough parallel to have a lot of worthwhile things to say on that front, but I thought it was important to establish those two points given Oliver's comment on the matter.
It would be interesting as an aside to know whether the contract was signed, but it's not actually particularly material to what makes a legal contract. (Again, not a lawyer, but I am studying for my Contracts final right now instead of my Civil Procedure one). The core question is whether an offer was made and accepted, and performance (that is: acting according to the terms of the contract) is a pretty reliable way to demonstrate acceptance.
I have no knowledge of whether the contract was signed, but that a written contract exists, that she worked according to the terms in the contract, and that they paid her according to the same terms all serve as strong evidence of a valid contract. Information about signatures adds little one way or another.
To clarify, this is specifically in the context "Kat requested that Alice bring a variety of illegal drugs across the border for her." Chloe didn't come into it.
I appreciate the response! A lot of people have been saying in passing that the section doesn't contain unambiguous falsehoods, but have provided few specifics. Going through:
- The number of former employees - there's nothing ambiguous here.
- "not able to live apart" - some people have claimed that "lived apart for six weeks with no issues" does not disprove "not able to live apart," a claim that still confuses me.
- salary - the written contract and the conversations beforehand are pretty clear.
- spent through financial runway/outstanding salary -- they have Alice on record saying she hasn't been paid in months with timed transactions demonstrating otherwise. The outstanding money was not salary, and the reason they provide for it being outstanding (her inexplicably switching away from their public reimbursement system, with them paying as soon as she informed them) makes perfect sense.
- expecting financial independence - their consistent "Project Manager" messaging makes sense to me. What am I missing here?
- nobody willing to get vegan food - All parties to the controversy concur that the article was incorrect here.
- didn't mind polyamory "on the other side of the world", but couldn't stand it right next to her - their conflict was not about polyamory and Kat made poly dating recommendations
- "variety of illegal drugs" -> ADHD meds
What, specifically, am I missing?
As for power dynamics and coercion, there are messy power dynamics all around here! We are writing all of this, and the investigation was published, on a site administered by the person doing the investigating. Books could be written about the power dynamics inherent in someone that influential in your community spending six months gathering negative information on you. If a powerful person is going to publish falsehoods that destroy your reputation, even if you're independently wealthy the power dynamics are much more complicated than you seem to suggest.
Regardless, I'm glad you like my writing style and very much appreciate that final line.
If financial concerns are the key mover, sure (although I don’t think it takes an 8-figure lawsuit to sue Gawker, just to ruin them). Gwern’s comment seemed to be outlining much more of an ethical principle: thou shalt not threaten defamation lawsuits even when you have suffered actual damages from actual defamation.
Hey, Roko! Sincere thanks for alerting me to this situation, as well as motivating a petty “There are a million better ways to disagree with them; let’s see what I can do” urge when I saw your post about it. I wouldn’t have noticed or responded to this all without that prompting.
As for quokkas and machine guns, I don’t disagree that someone can be one or the other, but—well, not to put too fine a point on it, but I don’t think Ben is an attractive, poly, highly sociosexual woman. As a more general archetype, I think there’s a distinct sort of first-principles thinking that can lead someone to do a lot of harm without precisely meaning any of it.
Thank you for your response. That seems a tendentious reading to me, but I'm happy to leave it at that.
EDIT: Actually, given the level of support the above comment is getting, I'd appreciate elaboration from someone. The straightforward reading of "They were not able to live apart from the family unit while they worked with them" is that during the whole duration of working with the family unit, they were required to live in the same location. Are people honestly claiming that that sentence remains true as written if she spent fully a third of her time working for them living apart from them? I don't see where people are coming from on this at all.
I agree that some people use them that way. I disagree that is a fair descriptor of every lawsuit threat, and think in this case the parties had approximately equal power and influence, and that six months of building a case against Nonlinear is every bit as threatening as a lawsuit. Since the overwhelming community consensus was that Ben's six months collecting negative information about someone with 60 hours to respond was reasonable and Nonlinear's threat of a lawsuit if not given another week to respond was unreasonable, I felt, and feel, that the community needs to sharply update against the reasonableness of collecting and presenting only negative information and somewhat more weakly update against lawsuit threats being de facto proof of bad faith and unfair dealing.
It is being had right here!
It is being had here after Nonlinear's reputation was damaged in what reads to me as a fundamentally unfair way, and being had in the way it is only because word happened to make it to me from a community I am a neighbor to but not a part of and I happened to be obsessive enough to respond. The court of public opinion is fickle and unreliable, relying on oratory skills and the chance of who happens to show up at least as much as anything else.
EDIT:
And, if you really believe lawsuits are so awesome and wonderful, why aren't you criticizing Spartz for not following through on the threat?
Why create a caricature of me? I don't believe lawsuits are awesome and wonderful. I think they are a last resort that no parties should desire and that every effort to reach an out-of-court settlement should be found even if someone raises the spectre of a lawsuit. Nobody is ever obligated to pursue one, but there are settings in which it is defensible. In this case, I am at least somewhat optimistic that the EA community as a whole will find a way to undo the bulk of the material harm caused by the original post through its own methods.
notably omitted from the introductory allegory.
To clarify, I think that if EA has a strong principle against suing the New York Times, one of the most powerful institutions on the planet, for libel if the Times makes materially false claims with actual malice that do real reputational damage, that principle is not praiseworthy. I made the nod to that principle in the opening allegory with an eyebrow raised. Every example you give of the problem of libel suits is of their use by the strong against the weak, but every part of the legal system is bad if abused by the strong to crush the weak. That doesn't mean the system as a whole has no legitimate role.
The passive background threat of libel suits against powerful journalistic outlets is a significant part of the process that causes journalists to stick with technically correct claims. It is good that the New York Times can be held liable if it causes damage to someone by lying about them, and good that journalists have to keep that possibility in mind.
(which they would generally win, BTW).
I want to be clear that, as a matter of policy and out of an excess of caution given my career path, I do not and will not make prognostications on the likelihood of success of any given lawsuit.
Can you explain more how "they were not able to live apart from the family unit while they worked with them" is true if Alice went to live in the EA hotel for three weeks while working for them without them doing anything to the contrary?
I'd be curious to hear your other examples here as well. I think the counterevidence is strong on each point I examine.
I appreciate the detailed response!
I don't like that this sounds like this is only (or mostly) about tone.
The core of it, for me, is that Nonlinear was in a brutally difficult position. I've been on the receiving end of dogpiles from my own community before, and I know what it feels like. It's excruciating, it's terrifying, and you all-but see your life flashing before your eyes. Crisis communication is very, very, very difficult, particularly when people are already skeptical of you. Nonlinear's response to Ben was as he was on the verge of fundamentally changing the trajectory of their reputations and would not be swayed from his course, and their response to the community was in a similarly high-pressure frame.
The pressure and stress of a position like that makes it very hard for me to apply someone's behavior in those circumstances to other settings. A normal person acts very differently under intense pressure than in regular situations, so when I think someone is put in an unfair situation (as I do of Nonlinear) I'm reluctant to pass too much judgment from the sidelines. We don't know how the Nonlinear people would have reacted had those concerns been brought up in a measured, reasonable matter, because that did not happen.
In short: it's less about tone, more about the pragmatic reality that at the bottom of a dogpile, tactical communication ability and grace under pressure matter immensely in ways that are hard to apply to regular situations.
Chloe isn't a large outlier in any relevant way of personality, except perhaps she was significantly below average at standing up for her interests/voicing her boundaries (for which it might even be possible that it was selected for in the Nonlinear hiring process)
I think it's likely that Chloe is not a large outlier, but the rumor mill is incredibly destructive and spending a year working alongside someone who does seem like more of an outlier to spread rumors is not a productive or healthy way to handle interpersonal work conflicts. I think it's useful for whistleblower-type stuff to come to light, but not through whisper networks, and I think Alice and Chloe's rumor-mill response to the situation worsened it in material ways that are important to establish.
At the same time, I feel like, as a private individual, it's okay to come away with confident beliefs (one way or the other) from this whole thing.
I don't disagree with this. People come to strong opinions about all sorts of things on the basis of much weaker evidence than is available about this stuff at this point. I just wanted to establish my feeling that at the community level as a whole, the errors in the way things were handled mean that a retraction and a change of process moving forward are appropriate, and people collectively reacted in mixed-to-negative ways to the two people who in my judgment were most correct about the initial situation (Spencer and Geoffrey) in ways that should inform their judgment moving forward.
Since the time I have started looking into this, you have:
- incorrectly described the nature of people you talked with around Nonlinear, for which you subsequently apologized.
- incorrectly claimed Nonlinear might be sponsored by Rethink Priorities, which you subsequently retracted.
- made likely-incorrect assumptions about libel law, which I subsequently clarified.
- incorrectly predicted what journalists would think of your investigative process, after which we collaborated on a hypothetical to ask journalists, all of whom disagreed with your decision.
- in our direct messages about this post prior to publication, provided a snippet of a private conversation about the ACX meetup board decision where you took a maximally broad interpretation of something I had limited ways of verifying, pressured me to add it as context to this post in a way that would have led to a substantially false statement on my part, then admitted greater confusion to a board member while saying nothing to me about the same, after which I reconfirmed with the same board member that the wording I chose was accurate to his perception.
- agreed that the claim about vegan food as written, which Spencer tried to correct prior to publication, was substantially incorrect.
I appreciate that you publicly update when you get things wrong, but the frequency with which you make these mistakes serves as strong evidence to me that I had sufficient information to make this post.
The specific falsehoods, while useful, are not the core of my point. The core of my point is that a process aimed at finding only the negative, in which a great majority of your time is spent gathering evidence from one side of a situation and sympathizing with one party to it, will necessarily lead to a post aimed at something other than truth-seeking and a trial in the court of public opinion without due process. The journalistic standard I advocate for and you disagree with stands independent of any subsequent factual claims. The primary source documents I include in this post stand as useful evidence independent of any new evidence that gets introduced, and would have materially changed the interpretation of every one of the points in the section you dispute.
I stand by my post, and its timing, in full.
I respect you and have followed your general commentary with interest for some time. Given that, reviewing this comment section a few months later I want to explicitly state that I believe you made a number of understandable but major errors in your evaluation of this process and should reevaluate the appropriateness of publishing a one-sided article without adequate error-checking and framing requests to correct verifiable, material errors of fact as retaliation now that the more complete picture is available. I'm coming at this fresh with the benefit of never having seen this post until the more complete story was out, but given what is now known I believe the publication and reaction to this post indicates major systemic errors in this sphere.
Reading these comments three months later, I want to note that I am downgrading your credibility as well and I think it's worth specifically stating as such, because while it seems abundantly clear your intentions are good and you do not participate in bad faith, the series of extremely harsh comments I've been directing towards Ben's work in the update thread apply to your analysis of his work as well. I think you treated number of hours as a reason to assign credibility without considering balance in those hours, and failed to consider the ways in which refusing to look at contrary evidence credibly promised to be available soon suggests reckless disregard for truth.
Yes, my understanding (again: not lawyer, not legal advice) is that a lot of that gets covered under the Fair Reporting privilege, which allows reporters to provide fair and accurate summaries of public meetings (eg rallies, speeches, Congress), including defamatory comments made by public officials at those meetings. It's also worth mentioning the broader Neutral Reportage privilege, adopted in a few jurisdictions but rejected in others, providing freedom to neutrally report untrue statements made by a public official or prominent organization, about a public figure or public official, relating to or creating a public controversy. Edwards v. National Audubon Soc'y, Inc., 556 F.2d 113 (2d Cir. 1977) (in which the New York Times faced lawsuits for reporting that the Audubon Society had accused several scientists of being paid by pesticide companies to lie) is the key case to look at there.
The above image contains the full text of my message, absent the rest of the copy-pasted hypo. I'll note in the interests of broad fairness that other involved parties suggested edits, notably that the last-minute evidence was evidence indicating the key witness had lied and that "7 days" is longer than they had to respond to the material claims. I used none of their suggestions. I think the hypo could be a reasonable question across a somewhat broad range of specific factual emphases and think the framing as-is is sufficient to get good answers; in my messages, I did not alter the hypo from the words you chose.
I reached out to three journalists with long investigative track records and have two responses so far. It goes without saying that these are people I have close working relationships, regular communication, or other personal connections with, but I believe the framing and lack of context provided mean they are well-positioned to consider the question in the abstract and on the merits independent of any connections.
The first response (update: from Katie Herzog):
I would delay publication. I’m not sure about the specifics of libel law but putting myself in a publisher’s shoes, they do tend to not want to get sued and your first commitment, beyond getting the scoop or even stopping the hypothetical group from doing harm, should be towards accuracy.
The second (update: from Jesse Singal):
I think it depends a lot on the group's ability to provide evidence the investigators' claims are wrong. In a situation like that I would really press them on the specifics. They should be able to provide evidence fairly quickly. You don't want a libel suit but you also don't want to let them indefinitely delay the publication of an article that will be damaging to them. It is a tricky situation! I am not sure an investigative reporter would be able to help much more simply because what you're providing is a pretty vague account, though I totally understand the reasons why that's necessary.
UPDATE:
The third, from Helen Lewis:
This feels like a good example of why you shouldn’t over-promise to your sources—you want a cordial relationship with them but you need boundaries too. I can definitely see a situation where you would agree to give a source a heads up once you’d decided to publish — if it was a story where they’d recounted a violent incident or sexual assault, or if they needed notice to stay somewhere else or watch out for hacking attempts. But I would be very wary of agreeing in advance when I would publish an investigation—it isn’t done until it’s done.
In the end the story is going out under your name, and you will face the legal and ethical consequences, so you can’t publish until you’re satisfied. If the sources are desperate to make the information public, they can make a statement on social media. Working with a journalist involves a trade-off: in exchange for total control, you get greater credibility, plausible deniability and institutional legal protection. If I wasn’t happy with a story against a ticking clock, I wouldn’t be pressured into publication. That’s a huge risk of libelling the subjects of the piece and trashing your professional reputation.
On the request for more time for right to reply, that’s a judgement call—is this a fair period for the allegations involved, or time wasting? It’s not unknown for journalists to put in a right to reply on serious allegations, and the subject ask for more time, and then try to get ahead of the story by breaking it themselves (by denying it).
I am not a lawyer, and none of the following should be construed as legal advice, only a personal opinion about the scope of libel law based on a quick dive into relevant national court cases, with no attempt to address the merits of this situation specifically. I got curious about all of this and wanted to take a closer look at elements of the legal issues in play. I'm placing this comment here out of convenience, though it has relevance to my conversation with @RamblinDash as well.
I'll touch on a few legal points that seem relevant, though this is necessarily a partial list, filtered approximately by "what was easily in reach in the casebook I had on hand".
1. Referencing claims made by specific sources:
Under Restatement (Second) of Torts § 578, a broadly but not universally accepted summation of common law torts, someone who repeats defamatory material from someone else is liable to the same extent as if they were the original publisher, even if they mention the name of the original source and state they do not believe the claim. Claims of belief or disbelief, while not determinative, come into play when determining damages.
Two important Supreme Court cases, St. Amant v. Thompson, 390 U.S. 727 (1968) and Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989), while focused primarily on the question of what constitutes actual malice, take for granted that publishers can be held liable for the claims of their sources. St. Amant focuses on a defendant who read questions he had asked someone else, Albin, about a public official, and Albin's false answers. In Harte-Hanks, the defendant publisher of the Journal News ran a story quoting false claims from one Alice Thompson that a judicial candidate, Connaughton, had bribed her and her sister.
Harte-Hanks is particularly useful to understand the scope of libel and the bar to meet for libel against a public official, the "actual malice" standard. Thompson's allegations of wrongful conduct were denied by Connaughton and five other witnesses. Thompson's sister Patsy Stephens, who had allegedly been present, was available for interview, but the newspaper did not interview her. The Journal News editorial director wrote an editorial two days before the article indicating that an article about impropriety would surface soon, taken as evidence that it had decided to publish the article before verifying its sources. The First Amendment has been interpreted since New York Times v. Sullivan as presenting a high bar to prove defamation against public figures (the above "actual malice" standard), with a high value placed on protecting freedom of speech; this case (with several indications of serious impropriety) fails that standard and the publication was ruled libelous.
2. Epistemic uncertainty:
Restatement (Second) of Torts § 566 touches on expressions of opinion, clarifying that opinions are actionable to the extent they are based on express or implied defamatory factual claims.
Per Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), opinions that rest on factual claims (e.g. "In my opinion John Jones is a liar") can imply assertions of objective fact, and connotations that are susceptible to being proven true or false can still be considered. Opinions are not privileged in a way fundamentally distinct from facts.
There's a lot more that goes into the determination, including the hard-to-pin-down idea of what makes someone a public versus a private figure, privileges that can be asserted, differences between case law in different jurisdictions, and so forth, and I am neither qualified to make a sound declaration on the merits nor interested in doing so. I've just been curious about the specifics of libel for a while and now seemed like as good a time as any to familiarize myself a bit more with the case law.
It's tempting to nitpick the edits a bit, but I think this is probably close enough to get good answers while being approximately satisfactory to both of us. I'll let you know how it goes.
I told you what I wanted you to do. You say it's unrealistic, I say that I wouldn't think to hold you to a standard I don't hold myself to.
I'm a blogger and a podcast producer, not an investigative journalist, and I'm paid to focus on internet nonsense, not truly critical, world-saving stuff. But I do my fair share of investigative work. This article is one of my recent high-effort investigations, over someone getting punched on a beach after a long series of ugly subculture drama—a much lower-stakes sequence than the one you covered, but one no less personal or painful for the participants.
The "antagonists" were not particularly communicative, but I reached out to them multiple times, including right before publication, checking if I could ask questions and asking them to review my claims about them for accuracy. I went to the person closest to them who was informed on the situation and got as much information as I could from them. I spent hours talking with my primary sources, the victim and his boyfriend, and collecting as much hard evidence as possible. I spent a long time weighing which points were material and which would just serve to stir up and uncover old drama. Parties claimed I was making major material errors at several points during the process, and I dug into their claims as thoroughly as I could and asked for all available evidence to verify. Often, the disputes they claimed were material hinged on dissatisfaction with framing.
All sources were, mutually, worried about retribution and vitriol from the other parties involved. All sources were part of the same niche subculture spaces, all had interacted many times over the past half-decade, mostly unhappily, and all had complicated, ugly backstories.
I was not paid for this, except inasmuch as I'm paid a part-time monthly salary for podcast production work. I did it in my spare time while balancing a full law school schedule. I approached it with care, with seriousness, and with full understanding of the reputational effects I expected it to have and the evidence I had backing and justifying those effects. What I want you to do is exactly what I would do if I were assigned this task, given comparable timing and hour constraints. No more, no less.
There's no threshold of hours of engagement. The test I am describing is this: are you receiving, or do you seem likely to receive, new material facts that contradict elements of your narrative? You were, up until two hours before publication, with a promise that there was more on the way. There is nothing unreasonable about saying publication should be delayed in that circumstance.
Anyway, look, I'm not an investigative reporter with experience in the field, much as I LARP as one online. That said, I'm on good personal terms with several and am happy to put my money where my mouth is and check with them. Let me know if the following is an appropriate summary or whether you'd make changes:
Say you were advising someone on a story they'd been working on for six months aimed at presenting an exposé of a group their sources were confident was doing harm. They'd contacted dozens of people, cross-checked stories, and did extensive independent research over the course of hundreds of hours, paying their key sources for the trouble. Their sources, who will be anonymous but realistically identifiable in the article, express serious concerns about retribution and request a precise, known-in-advance publication date. Towards the end, they contact the group in question, with their primary conversation lasting a few hours and coming less than a week before their scheduled publication date. The group claims that several points in their article are materially wrong and libelous and asks for another week to compile evidence to rebut those claims, growing increasingly frantic as the publication date approaches and escalating to a threat of a libel suit. On the last day before publication, they show a draft to another person close to the story, who makes at least one clear correction of material fact, then, with a couple of hours to go before the scheduled publication, provides evidence contradicting another of the article's supporting claims.
Would you advise them to publish the article in its current form, make a last-minute edit to include the final piece of material evidence, wait another week to review the claimed rebuttal, or take some other course of action?
Concretely, here's what you should have done instead:
Pause. Wait. Delay. Completely halt publication of the post, against the direct promises you made to your sources, who have shown you credible evidence that they are worried about retaliation. Make your excuses, make your apologies, recognize that you are on the verge of publishing a partial narrative aimed at dealing serious reputational damage to someone in your sphere, and take a moment to absolutely ensure all the i's are dotted and all the t's are crossed.
If you receive concrete evidence that you are about to publish a falsehood aimed at inflicting material harm on someone, your duty is simply not to do that. If you are scrambling on the last day to update clear material falsehoods in your post, as Spencer reports with the company reviews, something has failed in your fact-checking process, and you should grimace, take a deep breath, and pause publication until you have things figured out.
Of course Nonlinear was using aggressive tactics. There's no truly returning from reputational damage inflicted by a post of that sort. Even if a response sways some people, it will at best always result in a sharp community divide, with people taking sides and landing with one adversarial party (you) or the other (them). I was unfamiliar with Nonlinear and Lightcone until these events, and don't have any sort of personal stake in the fight other than a desire to see careful standards applied to investigative work. But it seems abundantly clear to me that proper caution was not taken in the publication of the original post, and the root of that seems to be an impression that it's alright to publish material falsehoods if you update later, and that it's more important to keep to a publication schedule than to ensure you're presenting a complete picture. I emphatically disagree on both counts.
I responded to your EA forum comments much earlier in the day, but my responses are still stuck in the mod filter, so I might repeat myself a bit here. I'm not part of EA, but I've been around the rationalist sphere for a long while and I have more experience than most here with investigative journalism–adjacent work.
You regularly mention hundreds of hours of work, a deadline you had to meet, the inconvenience you would have faced upon delaying, and the chance that you might have chosen not to publish at all had you delayed.
That's all very well and good, but honestly doesn't sway the needle for me at all in terms of your duty in the situation. Self-imposed deadlines are not an excuse to avoid hearing out one party to a conflict you're publishing.
In those hundreds of hours, so far as I can tell, you spent a grand total of three gathering one side of the story—the side of a group Ben's post was explicitly adversarial towards and explicitly aimed at destroying the reputation of. When they told him they were compiling a detailed list of evidence to respond to some of his claims, you guys flatly refused to investigate further or delay your self-imposed deadline. I cover a story like this almost every week for the podcast I work for, and I put more time into gathering opposing stories than that.
I believe you when you say that (almost) all evidence Ben was given made it into the post. I emphatically disagree that holding a firm publication deadline was reasonable when you were being warned of evidence that would materially contradict many claims within your post. When the reputation of someone within their own community is at stake, you want to dot every i and cross every t, and spending hundreds of hours over the course of several months collecting accusations and a single-digit number in a week collecting rebuttals, up to and including making significant corrections on the final day and rejecting other significant corrections as being too late to add, does not meet that standard.
Trying someone in the court of public opinion can be as serious a matter as trying them in the court of law, and while you say the goal of the post was not to judge, that is both hard to square with lines like "I expect that if Nonlinear does more hiring in the EA ecosystem it is more-likely-than-not to chew up and spit out other bright-eyed young EAs who want to do good in the world" and hard to square with the duty you take on by electing to publish an exposé about someone. You have to play the role of judge in an article like that, and you are not fulfilling your duty by circulating allegations without putting in sufficient due diligence.
I would be curious for that to occur and will make no confident proclamations about what they would or would not say. I suspect the epistemic status markers included are not nearly as protective as you would assume to the extent actual, materially harmful falsehoods were published, but I could be mistaken.
My read is that many people still consider the publication of the original post to be prudent and responsible given the circumstances, while any updates based on information that comes to light here will be prudent and responsible given the new information. Instead, I think people should view the original post as imprudent and irresponsible to the extent that it did not give one side of an adversarial situation an adequate hearing-out (and it really seems like it didn't: a three-hour phone call where you misleadingly summarize their response as "Good summary!", then refuse to wait until they can provide a more substantive response, is extraordinarily bad practice given the hundreds of hours he mentions putting into the rest of the investigation), with any subsequent updates being judged as returning towards responsibility after the fact rather than continuing a pattern of prudence.
Specifically, I think people by default read this post as an example of good epistemic practice in a community built around good epistemic practice. In this case, though, I think the prior bad epistemic practice (not waiting for full information before publishing a highly consequential piece aimed at inflicting reputational damage on someone) is significant enough and bad enough that emphasizing a plan to update after the fact should be viewed primarily through the lens of damage control.
The standard with this sort of investigative piece should be to gather information of this nature prior to publication to whatever extent possible, where updating on new information after-the-fact is praiseworthy only if that information was not realistically knowable prior to publication.
You're correct that it's better than being wrong but not acknowledging it, but I think that's a well-established standard in this sphere and there's a stronger need to update based on the importance of gathering relevant information prior to publication.
I want to make a separate reply to register specifically in light of the downvotes you've attracted that while I disagree with your conclusions on the merits here, I think your mode of engagement on this is wholly appropriate and that the voting system is being, if not gamed, at least heavily influenced by people with strong emotional investment in the conflict at hand, which should be considered however the votes in the conversation wind up.
When they asked for, and were denied, one week to compile evidence, I don’t think it’s reasonable to conclude much of anything based on the final response process taking longer.
It’s absolutely adversarial to reveal the truth if the truth is harmful to someone. It’s critical to distinguish between “adversarial” and “bad.” Choosing to investigate a group over a long period of time and then publish information to damage them is fundamentally an adversarial act. Not a bad thing, but for one who aims to practice investigative journalism, vital to keep in mind.
If your goal is to reveal the truth and not to inflict harm on someone, you should wait until you have all sides as thoroughly as you can reasonably get them, and not cut that process short when the party you are making allegations against responds with understandable antagonism—until and unless they refuse to cooperate further and have no more useful information to give.
No. He knew he was operating on partial information; he knew they had a great deal of information they were willing to give him in a short time span; he had no way of evaluating the quality of the evidence they would give before they would give it. He was not justified in half-doing his job whether or not they were being unpleasant in response—a threat of legal action is emphatically not an excuse to avoid considering their evidence prior to publication or rushing publication unless it becomes clear they are unreasonably delaying. A week or two, in response to serious allegations, is not an unreasonable delay, and no matter the ultimate strength of their story he neglected his responsibility to proactively understand it.
“I’m correct in seeking to inflict enormous reputational damage on you, therefore you are unjustified in responding with a threat of legal action, and your threat of legal action justifies me refusing to proactively examine promised exculpatory evidence” is the position I hear you endorsing, and I find it bizarre.
No! You can’t enter an adversarial frame, then object when people accurately treat it as adversarial and use their adversarial response as an excuse to avoid due diligence! That is not, or should not be, how any of this sort of investigative journalism works.
“I’m going to expend both of our time and cause huge amounts of damage” happened upon publication of the initial allegations. It was guaranteed to happen upon publication of the initial allegations. It was, in simple fact, the expected result of the initial allegations.
The original post was a weighty decision and if you post it there has better be a serious reason. A legal case is procedurally more weighty than inflicting massive reputational damage on someone in their own community, but it’s not clear that it’s morally more weighty, and treating it as escalatory feels like a category error no matter who you think wins the overall “bet” between Ben and Nonlinear.
My understanding of truth as an absolute defense to libel (disclaimer: law student, not lawyer, and referring to hastily examined case law, not deeply researched understanding) is that it refers to the truth of the core statement, not the truthful replication of defamation. In other words, I believe you can still be liable for publishing “A claims X” when X is false and you had reason to know that, depending on the circumstances.
My understanding is that they are addressing the same event (pharmacy for antibiotics and ADHD meds) in all locations, and they make it clear in his post they dispute every part of his frame about that event, including his presentation of their response as basically agreeing with him.
I’m not sure the value in focusing on a specific story when I’m making a general behavioral claim, though. My stance is this:
If (1) you inform someone that you are going to publish something that will be severely detrimental to their reputation and (2) they assert you are making several materially false claims in that publication, claims they have hard evidence exist, then (3) it is unreasonable not to wait to review that evidence, and (4) a libel suit is proportionate, not escalatory, in response to the actual publication of falsehoods that severely damage someone’s reputation.
From those, it follows that warning of a potential libel suit in advance of publication should absolutely not be read as “I am being unreasonably threatened and therefore should publish immediately to stand up to bullies.” It should be read as “I am entering a serious, mutually adversarial situation and I should be absolutely sure, to the best of my ability, that I have my facts straight.” The initial seriously adversarial decision is the choice to publish allegations, not the choice to sue. Both can be correct or incorrect depending on specific circumstance.
The decision to publish immediately, and your endorsement of that decision, is a bad misread of the situation—not defecting in response to defecting, but carelessness bordering on malice in an already adversarial context—and one that causes predictable harm should any allegations be materially, provably false.
As the publisher, Ben has a duty beyond simply uncritically repeating a source’s claims, if he knew or had reason to know those claims are materially false—including not taking reasonable steps to verify truth. The claim about being asked to transport illegal recreational drugs across a border is the most immediately clear one to me. Nonlinear told him it was false, had screenshots available to the contrary, and he published it. Whether he preceded it with “Alice says” makes little difference in terms of either moral or legal responsibility.
I respect that you don’t see the allegations as awful, but it looks like they had a dramatically negative effect on the reputation of the organization as a whole. The bar for writing something that has dramatic negative effects on someone’s reputation is and should be high; the court of public opinion is no better or more functional than the court of law.
It seems fundamentally inaccurate to me to treat lawsuit threats as an escalation to the decision to publish something that will destroy an organization’s reputation within their own community. Whatever the merits of any specific suit, those are equally adversarial decisions and the one is a proportionate response to the other, not an escalation.
I fundamentally disagree with the way a lot of rationalists are treating the threat of legal action. The legal system is a failsafe to ensure means for protection against serious misbehavior. Based on this post, I think Nonlinear is correct to assert that several of the claims in the original article were false and likely libelous. Legal action in response to libelous claims aimed at destroying your reputation in your community is not escalatory, it is proportionate, and a threat of it should be a reminder that the situation is serious, not treated as casus belli to publish any and all information.
I think it's worth explicitly stating that while I think most in this community are reading "I plan to compare the things that this post says directly against specific claims in mine, and acknowledge anything where I was factually inaccurate" as an example of a positive norm, it reads to me as a strongly negative one.
Specifically: Based on this comment, it sounds like you knew or should have known much of this evidence was available upon the decision to publish your original post, and you went ahead regardless without waiting to review claims that falsify parts of your original post. In other words, you mixed what appear to be materially false claims with true ones in a post aimed explicitly at destroying the reputation of an organization. The correct time to update factual inaccuracies in something so high-stakes is not after-the-fact, it is prior to publication, and the presence of correctable falsehoods in the original, whether or not you subsequently correct them, is a major issue.
Poorly constructed public narratives, though, make for bad policy and bad culture. Yes, much of it carries the instrumental goal of pragmatic trans acceptance, but it's often presented in such a way so as to not only elide the complexities of that acceptance, but to make any discussion of policy trade-offs or personal disagreements radioactive. More, people tend to be poor at distinguishing between "narrative-simplicity" statements and truths worth orienting one's life around.
Morphological freedom is a powerful and unifying principle that is easily, intuitively understood and can rally a range of people with disparate metaphysical beliefs in support of simple, valuable quality-of-life policy, and it generalizes from issues around the transgender experience to groups that are treated more like strawmen or inconveniences in current discourse, such as therians/trans-species identity. "My body, my choice" has already been thoroughly absorbed by the abortion debate, but a similar approach encapsulating the essence of morphological freedom is an easy case to make and a hard one to reject.
The idea of gender as an essence separate to sex, intrinsic to all, is a much steeper request, one that demands people realign their view of what is rather than what ought to be. If they cannot or will not realign that view, whatever their perspective on morphological freedom, they are placed in the role of Enemy Of The Cause.
People like Zack are in a miserable position, because the narrative they present of their experience is deeply inconvenient for the majority of people who feel similarly to them and thoroughly convenient to those who hate them: if, rather than being a woman born in the wrong body, someone like Zack is a man with an orientation that makes him wish to be a woman, dismissing the whole thing as a perverted fetish is trivial for hostile actors, and it becomes almost impossible to make some policy cases activists wish to make.
You frame it as rounded-off nuance, and I almost see where you're coming from with that, but it gets so thoroughly rounded off that to assert it becomes a threat and to examine its implications or propose it as a basis for policy is to all but declare war on the most vocal progressive trans activists.
I am, thankfully, not personally invested in the same way Zack is. While I can full-throatedly support a morphological freedom–driven initiative, though, I cannot accept the truth claims progressive trans activists ask people to accept, and find Zack's descriptions to come much closer to what appears to be the underlying truth of the phenomenon, inasmuch as it is knowable, and in a way that enables a consistent approach as I wrestle with phenomena like trans-species identity that seem closely connected and aim to keep the whole consistent with my own observations and experience. Not precisely--I have my own nuances and quibbles I'd add. But close enough to be legible. I agree that pragmatic acceptance is the way to go, but disagree that the most popular public narratives are really serving that end in sustainable, healthy ways.
Thank you for this comment. It's an extraordinarily perceptive, candid, and thorough look into a set of experiences few are familiar with, and gave me a great deal to chew on. I very much admire your commitment to becoming a parent despite the complexity of your position—good luck with it all, and thanks again for sharing your experience.