The discovery that systematic lawsuit campaigns can be aimed at the press, and not just against every other institution, might be reason to rethink litigation-as-weapon [Gordon Crovitz, Wall Street Journal]:
Walter Olson, author of “The Litigation Explosion” (1991), explained in his Overlawyered.com blog that Mr. Thiel’s approach was predictable after maintenance “metamorphosed around the 1960s into what we now know as the public interest litigation model: foundation or wealthy individual A pays B to sue C. Since litigation during this period was being re-conceived as something socially productive and beneficial, what could be more philanthropic and public-spirited than to pay for there to be more of it?”
With maintenance decriminalized, Mr. Olson warns, “It will be used not just against the originally contemplated targets, such as large business or government defendants, but against a wide range of others—journalistic defendants included.”
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The invasion-of-privacy verdict against Gawker was a triumph of justice, though appeals courts may pare down the actual damages and punitive damages. Peter Thiel deserves our gratitude.
Abuses of maintenance, however, could be curbed by a robust anti-SLAPP law for speech, and perhaps by a general increase in a maintainer’s liability for defendent’s legal costs in an unsuccessful lawsuit.
Of course, New York Times v. Sullivan started as a tort case, but resulted in such glorious First Amendment law that its origins were forgotten. The media will always love litigation because it provides such nifty stories. I doubt the Gawker episode will translate into greater journalistic skepticism about lawsuits.