Defamation cases are hard to win in the United States. Starting with its 1964 ruling in New York Times v. Sullivan, the Supreme Court has required plaintiffs to meet a very high threshold of proof before American courts can hold someone liable for defamation. Whether something is simply false is insufficient; the justices have held that the allegedly defamatory material must be distributed with a “reckless disregard” for the truth.
Anything less than that would violate the First Amendment’s guarantees of free speech, the Supreme Court has reasoned. One does not have to take the justices’ word for it. In countries with lower thresholds, defamation cases often become a tool for the wealthy and well connected to suppress negative information about themselves. Australia and the United Kingdom are particularly notorious for squelching reporting into misconduct by celebrities and politicians through libel lawsuits.
That made it strangely heartening to see a 77-page demand letter by billionaire Bill Ackman and his wife, Neri Oxman, against Business Insider, which reported on plagiarism allegations against Oxman last month. Since then, Ackman has engaged in a high-profile campaign against the publication that may culminate in a lawsuit. The letter is a typical last step in defamation cases before one is filed.
“We are providing you this demand to explain why immediate retractions and corrections are necessary, supported by undisputed facts and a timeline over the last two months, in a final attempt to avoid litigation,” the letter said. While intended to condemn Business Insider, the 77-page letter instead shows why robust thresholds for defamation are necessary to protect news outlets—and the Americans who read and rely upon them—from vindictive individuals who could otherwise pursue ruinous litigation campaigns against publications they don’t like.
This whole psychodrama began with a disastrous appearance from a group of university presidents who testified before Congress on the topic of antisemitism on college campuses. Some of the presidents, most notably Harvard president Claudine Gay, demurred on whether their campus policies would forbid students from calling for the genocide of Jewish people. She later apologized for her answers on the subject in a post on The Harvard Crimson, the school’s student newspaper.
One of the university presidents’ most vociferous critics was Ackman, a hedge-fund manager and outspoken Harvard donor who criticized them at length on Twitter. (Ackman is also Jewish; Oxman, his wife, is Israeli.) He suggested that Harvard had named Gay as president because she is Black, and claimed that she was unqualified for the post. “Shrinking the pool of candidates based on required race, gender, and/or sexual orientation criteria is not the right approach to identifying the best leaders for our most prestigious universities,” he wrote on Twitter last December.
As public criticism of Gay and others mounted, news outlets began to report on plagiarism in some of her scholarly work, including instances where she inappropriately cited and quoted others’ work. Ackman took up this angle in earnest, and soon became particularly vocal in demanding Gay’s resignation over the plagiarism allegations. (Gay eventually stepped down in December.) The New York Times reported last December that Ackman’s campaign against Harvard in particular may stem from other grievances, including his reported frustration that the school’s leaders have not consulted him more closely about antisemitism on campus. Ackman later said on Twitter that his efforts had “absolutely nothing to do with my unfortunate experience as a donor to the university.”
When powerful people flex their muscles in this fashion, it invites scrutiny. Here, Ackman’s high-profile calls to punish Gay for plagiarism apparently led some reporters to pursue a predictable line of inquiry about his consistency in condemning plagiarism. While Ackman himself is not an academic, his wife is a former MIT professor who has since entered the private sector to found her own start-up.
On January 5, Business Insider published an article about Oxman titled, “Bill Ackman’s celebrity academic wife Neri Oxman’s dissertation is marred by plagiarism.” That article, as well as subsequent follow-up reporting, described multiple instances where text in her dissertation at MIT and some of her other academic writings appeared to be copied without attribution from other sources, most notably including Wikipedia.
In a statement on Twitter in response to Business Insider’s allegations, Oxman acknowledged that she had “omitted quotation marks for certain work that I used” in her dissertation. “I regret and apologize for these errors,” she added, and said that she would work with MIT to correct them. It is at this point that this story could, and probably should, have ended. Ackman, however, opted to take a more hostile stance toward Business Insider. “It is unfortunate that my actions to address problems in higher education have led to these attacks on my family,” he said.
He then spent the last two months engaged in an energetic campaign to defend his wife from the plagiarism charges and to allege journalistic malpractice on the part of Business Insider. That campaign largely took the form of multiple posts on Twitter to detail his grievances. Some were more than 7,000 words in length. “Does this seem like a fair way to determine whether a professor plagiarized in her dissertation 15 years ago?” he wrote in one post. “Does this seem like a fair way to destroy the reputation of one of the most talented and famous designer/scientists in the world, even if she is married to billionaire?” Ironically, his efforts arguably made the story even more prominent than it otherwise would have been.
Behind the scenes, Ackman was also pressuring top editors and executives at Business Insider and at its parent company, Axel Springer, to correct or amend the publication’s reporting. Those efforts were apparently unsuccessful, since the stories have not been retracted or significantly corrected. So Ackman has moved on to threatening potential legal action. He and Oxman hired Libby Locke, one of the nation’s most accomplished defamation lawyers, to represent them. She sent a 77-page letter on Oxman’s behalf to Business Insider’s owners last week.
“Business Insider’s articles falsely accusing Dr. Oxman of intentional plagiarism and admitting to that academic misconduct are painfully flawed—both in their substance and the process by which they were reported—and they are defamatory per se,” the letter claimed. “At every stage, Business Insider and [parent company] Axel Springer have acted with malice, and the damage they have caused Dr. Oxman has been immense and irreparable.”
The letter hinges on two assertions of falsity on Business Insider’s part. First, it claimed that Business Insider reported that Oxman had intentionally committed plagiarism by including others’ improperly cited text in her own work. “Business Insider did not (and cannot) point to anything in Dr. Oxman’s dissertation (or anywhere else) demonstrating that Dr. Oxman had an intent to steal because she did not do so,” the letter claimed. “In fact, the instances of so-called plagiarism Business Insider identified refute the notion that Dr. Oxman had such an intent.”
But Business Insider never made any allegation of intent on Oxman’s part in its reporting. The word “intent” appears nowhere in the publication’s articles. The reporters simply described the use of improperly cited or copied text without ascribing any motive to it, such as fraud or deceit. It is possible to accidentally plagiarize text or inadvertently plagiarize something, of course. Mistakes happen. That doesn’t mean it isn’t plagiarism; it only means it isn’t punished or treated in the same way as intentional academic fraud.
Second, the letter claimed that Business Insider reported that Oxman had admitted to “academic misconduct.” Academic misconduct is a grave offense in higher education, and admitting to it could seriously damage, if not end, a scholar’s career. Oxman, as I noted earlier, published a Twitter post after Business Insider published its articles where she acknowledged “errors” in her citations and said she “regret[ted] and apologize[d]” for them. Business Insider subsequently reported that Oxman “admits to plagiarizing in her doctoral dissertation after BI report.” That article did not mention “academic misconduct” in and of itself, and Business Insider does not appear to have alleged that she ever committed it.
The letter nonetheless claimed that Business Insider should have deferred to MIT’s internal processes before leveling a charge of plagiarism. “At MIT, to find a scholar guilty of plagiarism, a devastating academic finding of fraud, an administrative panel must come to a determination that a scholar intentionally plagiarized only after an intensive, multi-stage inquiry and investigation during a typically multi-month, rigorous administrative proceeding,” it argued. “Business Insider knew before it went to print that the citation issues it had identified in Dr. Oxman’s dissertation and other papers did not meet MIT’s standards for intentional plagiarism, academic fraud, or misconduct.”
That may well be an accurate description of MIT’s internal processes for handling plagiarism allegations. But they are not binding on anyone else, least of all upon Business Insider. The average person is more than capable of identifying plagiarism without MIT’s help. Simply because MIT did not identify something as plagiarism under its own rules does not mean that it wasn’t plagiarism. As for fraud or misconduct, Business Insider did not level those specific charges. The rigor of MIT’s own process for investigating plagiarism allegations is an acknowledgment of sorts that not all instances of plagiarism rise to the level of fraud or misconduct.
One of the more bizarre defenses raised by the letter is that it wasn’t really plagiarism when Oxman included entire passages from Wikipedia. The letter argued that MIT’s Academic Integrity Handbook “did not address—much less require—citation to Wikipedia,” and that it was “so inchoate” at the time that MIT did not specifically address Wikipedia citations until years later. “Business Insider knew that MIT had not yet put forth policies on the use of Wikipedia as a source until years later, but it ignored and did not disclose this exculpatory information in its articles so as not to contradict its narrative that Dr. Oxman had committed literary theft,” the letter claimed.
This is so nonsensical that I am surprised it made it to the letter’s final draft. It doesn’t really matter if MIT’s handbook had specific policies about Wikipedia because it should be obvious that lifting entire passages from Wikipedia is inappropriate—not because it’s Wikipedia per se, but because it’s lifting unattributed material and passing it off as your own. This was obvious to anyone who attended high school, college, or any other place of education in the 2000s and 2010s. It is unclear why someone at MIT would think otherwise.
The net result is that the letter accuses Business Insider of defaming Oxman by making specific claims that the outlet didn’t actually make. The letter seems to acknowledge this at one point by emphasizing the “narrative” over the actual substance. “It made no effort whatsoever to determine Dr. Oxman’s mental state and whether she had the requisite intent to steal as Business Insider claimed and implied,” the letter claimed. “As such, Business Insider’s claim that it ‘found’ that Dr. Oxman committed plagiarism is baseless, and it was only used to amplify the false narrative that she had engaged in intellectual theft and fraud.”
The portions of the letter that address specific concerns about Business Insider’s published materials only span about the first third of the letter. The remaining two-thirds of it are devoted to alleging that Business Insider had some sort of vendetta against Ackman and that his wife was an innocent bystander in it. The letter claimed that the outlet first tried to attack Ackman but failed to “achieve a desired level of news virality.” After that, the letter claimed, “Business Insider changed tactics, launching a new front in its clickbait offensive designed to impose on Ackman the maximum amount of pain where it would hurt him the most—on his wife and family.”
No real evidence is provided to support those allegations; the letter, ironically, is inferring intent without any proof to support it. Indeed, there is ample evidence that Business Insider’s leadership had a favorable view toward Ackman. Other portions of the letter detail Ackman’s extensive efforts to leverage his relationships with Business Insider’s management and executives to correct or amend the story. The letter included ample screenshots of text conversations between Ackman and Business Insider editor-in-chief Henry Blodget, Axel Springer CEO Mathias Dopfner, and others over Business Insider’s reporting. Much of it revolves around Ackman saying he “disputed the facts” of the piece without actually demonstrating why they were factually incorrect. His interlocutors appeared to humor him without taking substantive action against their own reporters.
When wielding those personal connections fell short, Ackman and Oxman turned to personal attacks instead. The letter repeatedly described Blodget as antisemitic on what can be described at most as extremely dubious grounds. “In 2012, Blodget wrote an article entitled, ‘Why Do People Hate Jews?,’ which prominently featured a picture of two traditionally dressed Hasidic Jews,” the letter claimed. “At the time … he published the article, Blodget claimed to have been surprised by the public backlash. In response, he shut down dissent by turning off public comments on Business Insider’s website for the article, and later changed its title.”
You can read Blodget’s 2012 post here, complete with multiple panic-stricken notes and addendums. The post is written in a very bloggy style that was common in early 2010s online writing: He linked to a story about a poorly worded religious studies test in the U.K., and used it as a launching point for further discussion among readers about the origins of antisemitism. “What is the source of this animosity?” he asked. “Why does it perpetuate itself? Where did this prejudice come from? I’m asking this question seriously, and I’m going to Bleacher any comments that don’t answer it seriously.”
In context, the original post reads less like a Der Sturmer article trying to crowdsource future content and more like a naïve college freshman raising his hand in a History 101 class. Blodget was clearly not writing from a perspective of anti-Jewish sentiment. “Along with many other sites, this site is occasionally visited by people whose mission in life appears to be to express hatred of Jews,” he noted at one point. “We delete these comments as quickly as we can, but they’re always startling in their venom, meanness, and stupidity.”
I discuss this not because Blodget’s poorly framed posts from 14 years ago are exemplary journalism or anything, but because the letter’s invocation of them reflects a deeper problem here. Its discussion of Blodget’s post—as well as of other supposedly anti-Jewish sentiments by other Business Insider staffers, which aren’t worth recounting here—comes in the context of discussing the “actual malice” legal standard. Actual malice, as I noted earlier, requires more than just error. It means the defamatory material was published with “reckless disregard” for the truth and, as the term implies, a willful intent to cause personal damage. The irony of making antisemitism allegations with threadbare evidence at best to support them while discussing the actual malice standard would be almost comedic if it weren’t so serious.
Did Business Insider’s writers and editors meet that threshold? Are they out to get Ackman and Oxman because of some thinly veiled antipathy toward Jews? Legally speaking, it doesn’t really matter because what they wrote is truthful. Oxman did improperly cite material in some of her academic work. Her dissertation includes multiple passages that were lifted from Wikipedia. The letter claims that it wasn’t really plagiarism, or that it doesn’t strictly meet MIT’s contemporary definition of it, but those answers are better understood as defenses instead of denials. They don’t actually refute Business Insider’s reporting.
It’s unclear whether Ackman and Oxman will ultimately sue Business Insider for defamation. If they do, it will undoubtedly be an uphill battle. The actual malice question may not even be relevant if they can’t show that what Business Insider reported is false. (By that I mean what Business Insider actually reported, not what the letter seems to think that Business Insider reported.) Whether they decline to file or actually lose in court, the result will be a victory for Americans who want to say and write things without fearing that a billionaire will sue them into oblivion simply because they really, really, really don’t like it.
