Kevin Folta’s libel case against the New York Times makes the internet’s reaction part of the point.

Can You Sue a Newspaper Based on How the Internet Interprets a Story?

Can You Sue a Newspaper Based on How the Internet Interprets a Story?

The state of the universe.
Oct. 5 2017 6:12 PM

Can You Sue a Newspaper Based on How the Internet Interprets a Story?

A pro-GMO professor who claims he has been defamed by the New York Times’ reporting on his connections to Monsanto is trying. But that doesn’t mean he’ll be successful.

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Writing about GMOs is fraught—just look at this lawsuit.

Photo illustration by Slate. Photos by iStock and Spencer Platt/Getty Images.

In 2015, Eric Lipton, a two-time Pulitzer Prize–winning investigative reporter, published a long expose on the front page of the New York Times that delivered on its headline: “Food Industry Enlisted Academics in GMO Lobbying War, Emails Show.” The story was published in the wake of an academic arms race, of sorts, that occurred between the organic food and agricultural biotech industries as they prepared for the fight over GMO food labels. Both industries had “aggressively recruited” independent academic researchers, Lipton wrote, in a bid to influence public opinion and policy.

I was deeply interested in Lipton’s story because I had reported on some of the most eye-opening aspects of these emails for Nature several weeks before his Times piece appeared. It was both gratifying and frustrating to see some of the fruits of my labor appearing in the paper of record. Now, two years later this story is back on my mind because last month, Lipton’s article become the subject of a libel suit (mine has not).

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The theme of Lipton’s piece (which is at the heart of the libel case) flowed from this passage: “There is no evidence that academic work was compromised, but the emails show how academics have shifted from researchers to actors in lobbying and corporate relations campaigns.” This broad-brush interpretation of the hundreds of emails (which I have read) is debatable, but to Lipton’s credit, he does not take sides, and he acknowledges that the researchers’ positions were firmly established prior to the lobbying campaigns. To him, furtive, behind-the-scenes corporate involvement in public debate and policy was shown to work the same way whether it was being underwritten by the organic firm Stonyfield Farms or a biotech seed multinational like Monsanto. In his piece, Lipton portrayed scientists who got “recruited” by both sides as tainted by their association with industry. This depiction was helpfully supported by a damning quote from Charles Benbrook, an agricultural economist whose research and advocacy has been financed, to a large extent, by organic companies: “If you spend enough time with skunks, you start to smell like one.”

An objective reader of Lipton’s piece would have to acknowledge that neither Team Organic nor Team GMO comes off well. Both were shown to have high-profile scientists who had deeper working relationships with their respective industries previously unknown to the public. So why, two years later, are Lipton and the Times being sued in federal court for defamation by only one of those side’s “enlisted” academics?

The answer, I believe, can be traced to how the story played out on the internet after it was published and how the internet has polarized the conversation around GMOs. Lipton’s piece sparked a backlash on social media—mostly against Team GMO. One scientist in particular, University of Florida molecular biologist Kevin Folta, bore the brunt of the wrath. And Folta is the one who has decided to sue Lipton and the Times.

According to Folta’s legal complaint and testimony, the Times story “misrepresented him as a covertly paid operative” of Monsanto, a controversial company long saddled with a terrible public image. Folta asserts that Lipton “misrepresented” the nature of a $25,000 grant Monsanto gave to his university to make it appear that he was “nothing more than an industry salesman.” (Folta had planned to use the grant for a public outreach program on communication of GMO technology.)

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Folta also contends that the Times cast him in a “villainous” light (as an “industry lackey”), prompting “hundreds of false, career-damaging articles” to be written about him—“each citing the NYT”—all of which became a “permanent part of the internet’s archive.” The cumulative toll blackened his name, Folta argues in the complaint, and the blame for this ultimately lies with Lipton and the Times: “These defendants left a permanent and enduring scar on Dr. Folta’s online identity and in online searches—the first thing that people do in order to learn about a scientist.”

After the Times piece was published in 2015, Folta did face an online buzz saw. The anti-GMO community, which is varied and vocal, seized on the Lipton article. Folta was already a big target: For years, he had been an enthusiastic advocate and defender of GMO technology quoted often in the press as an independent expert (including by me). He had a busy public speaking schedule and a high profile on social media, as well. He relished jousting with anti-GMO activists, and this continued after the Times story made a splash. (The antagonism from this sparring certainly provided juicy fodder for some of those “hundreds of articles.”)

Just over a month after the Times story, a long BuzzFeed article raised additional transparency issues for Folta, about a podcast he had hosted under a pseudonym. The BuzzFeed piece triggered another wave of online bile that sent Folta reeling. At this time, he was lashing out so much that he said University of Florida administrators ordered him to stay off Twitter (a dictum that lasted for a few months).

So Folta is not blameless. He reacted defensively to legitimate issues of transparency highlighted in the Times and BuzzFeed articles, and willingly traded barbs with his detractors. That said, I’m sympathetic to Folta’s plight and to his embittered state of mind. I’ve been writing about GMO issues off and on since 2012, including at Slate, and this has put me in the crosshairs of activists, “health rangers,” and trolls—an unpleasant experience I wrote about last year in Issues in Science and Technology. Because of this, I now have to explain to my young sons, after they google their father, that I often write about controversial topics and that this causes certain individuals and organizations who feel strongly about these topics to sometimes distort and misrepresent my work online. As my wife likes to remind me when I complain, this comes with the territory.

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In a recent phone interview, Folta told me that it has been impossible for him to escape this story—“it follows me everywhere,” he said—which may explain why he filed a libel action against Lipton and the Times that, from a practical standpoint, seems like a reach. For starters, Folta was a public figure well before the Times story; as such, there is a high bar in U.S. and Florida courts for libel and defamation cases. He has to prove that the Times’ reporting was not just “false and misleading” (as he contends in the suit) but that they published it knowing that it was. “In order to prove libel, you have to demonstrate actual malice,” says Kelly McBride, vice president of the Poynter Institute and an authority on media ethics. “If [Folta’s legal team] can prove that there are factual inaccuracies and they can surface hard evidence that the author [Lipton] himself has a stated opinion, they may be able to make the connection that the author’s bias lead to decisions about tone and even caused the inaccuracies,” though she notes “that’s a really steep hill to climb.”

The Philadelphia law firm that Folta hired has climbed that hill before—numerous times. It has a successful track record with media libel cases. And in the wake of the recent Hulk Hogan legal victory against Gawker, secretly financed by Silicon Valley titan Peter Thiel and surprisingly successful in extracting a high enough cost ($140 million in damages) to shutter the website entirely, these types of suits feel more frightening for all of us in journalism. There are real (and legitimate) concerns in media circles about a chilling effect from such “revenge litigation,” particularly from ideologically motivated billionaires.

Folta’s grievance with the Times doesn’t appear to fit that category. For one thing, Folta told me he is financing this case himself. But furthermore: The main motivation for his defamation suit isn’t coming from the story; it’s coming from the online “national uproar” he claims in his suit the Times story triggered against him. I asked Folta if the internet reaction factored into his decision and he said, “Absolutely. I have been electronically assassinated.”

Can online blowback be the basis for a libel suit? Perhaps, but not in the way you might think: “There’s no question that the internet changes the calculation,” says Jonathan Adler, a law professor at Case Western Reserve University. But the “online scar” Folta attributes to the Times story “is most likely to be relevant for damages purposes,” Adler says. “That is, the fact that one news story can be so widely distributed and reproduced is a way to show that Folta was actually harmed. I am not sure, other than in terms of atmospherics, how this helps establish the underlying defamation claim.” In other words, it could decide the damages but it likely won’t have much influence on the ruling.

The amount of blowback Folta received seems to me to be less a product of Lipton’s reporting as it is of his framing. Folta’s beef with the Times story is that he thinks it was constructed in a way that painted him in a “false light” as a Monsanto stooge, which allowed other people to pile onto that framing, causing Folta harm. (Folta claims in his lawsuit that Lipton had this preconception and even asked him at one point in their interview: “How does it feel to be a tool of the industry?”) The “false light” argument is at the core of Folta’s defamation claim against the Times.

As someone who is familiar with the fraught debate around GMOs, and how slanted media coverage has sometimes contributed to widespread misinformation and faulty narratives, I know how powerful, and how tricky, journalistic frames can be. And when it comes to GMOs, there almost is no middle ground, meaning that any frame will be cannibalized by people on either side. Whether Lipton’s framing of his story was negligent to the point that it allowed readers to conceive Folta as something he is not is a complicated issue to litigate. But this much is clear: Lipton can be held accountable if he got the facts wrong, but he cannot be responsible for the internet’s interpretations of them.

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