American press remains free to defend itself against nine-figure lawsuits

Peter Thiel makes a grasping, strangling gesture.

Peter Thiel makes a grasping, strangling gesture.

The New York-based gossip website shut down yesterday, after its parent company, Gawker Media, lost a $140 million lawsuit to Hulk Hogan. Univision purchased Gawker Media from bankruptcy and will continue publishing many sites in the network, including Deadspin and Gizmodo, but the flagship has been eliminated. Yesterday, former executive features editor Tom Scocca published this scathing postmortem advancing two points, one of which I find more interesting than the other. First, he contends that Gawker was effectively gaslighted by its enemies, who convinced founder Nick Denton and other key members of the staff that they really were operating beyond the pale of respectable journalism. That seems both plausible and unfalsifiable. Second, and more compellingly, Scocca suggests that freedom of the press is complicated when billionaires can fund massive lawsuits designed to put media companies out of business. Background and consideration after the jump.

Gawker Media went to bankruptcy as a direct result of losing Bollea v. Gawker, in which a Florida jury awarded Hulk Hogan $140 million in damages after Gawker published a two-minute excerpt of a video of Hogan having sex with the wife of his friend, a radio DJ named Bubba “The Love Sponge” Clem. The Love Sponge shot the video without Hogan’s knowledge, although the sex-with-Mrs.-Clem part was agreed on by all three.

Hogan sued Gawker for invading his privacy and infringing on his personality rights, but the lawsuit was structured in unusual ways. Hogan’s lawyers dropped the only charge that would have engaged Gawker’s insurance policies, which was peculiar, since lawsuits generally go after the deepest pockets. It was later revealed that Hogan’s lawsuit had been funded by Silicon Valley billionaire Peter Thiel, who hoped to bankrupt Gawker Media after one of its sites, Valleywag, outed him as gay in 2007.1

This plan totally worked. Hogan won his lawsuit against Gawker Media, and because a circuit court judge refused to stay the decision to freeze its assets, the company did not have enough money to pursue an appeal. This brings us, finally, to Scocca’s second contention: that freedom of the press can be compromised by the resources of vindictive billionaires.

It is true that Gawker was bankrupted by one such billionaire. It is also true that he did it with a lawsuit that targeted Gawker’s financial stability—not by some attempt to argue that Gawker was unlawful as a publication, or that the government should restrict its expression. It was a legal attack, but it proceeded by financial means. That’s interesting, since the First Amendment protects the legal freedom of presses to publish but not, of course, their financial stability. The $140 million question is: From the standpoint of citizens who benefit from a free press, how is a billionaire shutting down a publication with legal expenses different from a government shutting it down with laws? As Scocca puts it:

Gawker always said it was in the business of publishing true stories. Here is one last true story: You live in a country where a billionaire can put a publication out of business. A billionaire can pick off an individual writer and leave that person penniless and without legal protection…If you want to write stories that might anger a billionaire, you need to work for another billionaire yourself, or for a billion-dollar corporation. The law will not protect you. There is no freedom in this world but power and money.

That’s a bold claim, hyperbolized for effect. Is it wrong?

The First Amendment was drafted at a time when only governments and the occasional angry mob had the resources to shut down a printing press. Times have changed. Thiel’s net worth is estimated at $2.7 billion—more than the budgets of most cities. It is not unreasonable to say that, working through the instruments of civil courts, a man like Thiel wields power comparable to that of a state government in 1789. He can’t raise a militia, but he can overwhelm a website he doesn’t like with sheer monetary force.

He’s a private citizen, and his private crusade to silence a publisher is different in kind from a government policy that does the same thing. But from the perspective of the reading public, how different is the outcome? I didn’t care for Gawker,2 but if I became president, it would be wrong for me to shut it down. Would it be right if I became a billionaire? We agreed in the 18th century to protect media from government abuse. In the 21st century, we might agree that government’s monopoly on such abuse has been broken.

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  1. I think you ignore one major detail: Gawker did wrong.

    Thiel was outed in 2007. He presumably would like to have hurt Gawker immediately. Instead he had to wait until it did something wrong, which in this case took five years. Of course he had an opportunity than a non-billionaire would not have had, but he also would not have had the opportunity to file that kind of lawsuit against the Washington Post, or Combat Blog!, or fuck it, probably even Fox News. He was handed an opportunity by a website that did cross a legal and ethical line. If Hulk Hogan had funded this lawsuit with his WWF money, or just gotten some nameless litigation investor, it would be seen as a victory for decency.

    Thiel may not be a friend of the 1st Amendment, but comparing him to the state shutting down a publication that has opposing political views when all he did was sue an entity that had acted in a way to incur civil liability is inaccurate.

  2. The grim warning, “watch out, democracy!” is great. Pretending Peter Thiel was a judge, trial counselor, or as Mike S. rightly points out, a petitioner is daft. Authors who argue he put a publication out of business need to show how providing legal services creates the legal outcome–which should be difficult given the existence of the judge and jury. It’s totally possible, it just requires acknowledging that Gawker was found guilty of something that’s against the law, and they would rather you think about Theil’s vindictiveness than the victim of their avarice. Fairplay, this is an editorial design to direct the reader’s attention, it’s not a legal opinion designed to make logical sense. Still, if Thiel didn’t bankroll the suit and the petitioner’s lawyers took the case pro-bono, would they ask us to blame billion-dollar law firms for creating injustice/jeopardizing free press?

    In tune with the fallacious reasoning and salacious media sharing of the masses, Gawker’s editors wouldn’t possibly advance such a boring argument–someone has to be a fucker so moral compasses can find their bearing. Even if Thiel is a total fucker and outspoken enemy of the 1st Amendment in both practice and theory, we’re still a long way from jeopardizing democracy. I know there’s something about Constitutional rhetoric that encourages people to make obtuse arguments (undoubtedly I am guilty of this myself), but Gawker is not on the line of defense against tyranny in any article I ever read. On that point I’m probably pretty ignorant. Regardless, I’m not comfortable offing publications even if they are demeaning, nor am I comfortable mobilizing my zeal to shield a publication whose concept of “truth” is divorced from outcome. As a writer, you know you must take responsibility for your words. Gawker doesn’t deserve to be punished because it refuses to, even in its parting shot, but it’s not buttressing our democracy with trash either.

    The editorial should have substituted its anger with policy advocacy, because their account almost illuminates some opportunities to strengthen our democracy. For instance, an organization like the ACLU safeguards a lot of our rights, but it can’t do anything to defend against a bankrupting civil awards from juries. Why didn’t Gawker’s editors write to the judges that allow those awards? Why didn’t Gawker’s editors write to state legislators that can pass tort reform? They are writing to the juries with their editorial, but I don’t think the point of “be responsible with your damages” comes across as loudly as “shit on Peter Thiel”.

    The amount of “truth” you can print got a little smaller on Tuesday, but it’s boundaries fluctuate with many decisions and in a time of increasingly transparent government (FOIA acts, city data sets), increasingly exposed government (wikileaks), and increasingly visible publications that actually serve as watchdogs (politifact, techdirt) am not persuaded it’s time to go to bat for Gawker. Gawker is once again distracting us from larger threats to our democracy such as partisanship, zealotry, and tribalism.

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