What Ken says at Popehat:
…for most of us the scary part of the story is that our legal system is generally receptive to people abusing it to suppress speech. Money helps do that, but it’s not necessary to do it. A hand-to-mouth lunatic with a dishonest contingency lawyer can ruin you and suppress your speech nearly as easily as a billionaire. Will you prevail against a malicious and frivolous defamation suit? Perhaps sooner if you’re lucky enough to be in a state with a good anti-SLAPP statute. Or perhaps years later. Will you be one of the lucky handful who get pro bono help? Or will you be like almost everyone else, who has to spend tens or hundreds of thousands of dollars to protect your right to speak, or else abandon your right to speak because you can’t afford to defend it?
The system isn’t just broken for affluent publications targeted by billionaires. It’s broken for everyone, and almost everyone else’s speech is at much greater risk.
Our coverage of the publication, including its run-in with champerty and maintenance and Peter Thiel’s version of “public interest” litigation, is here.
2 Comments
Just to remind everyone, the Hulk Hogan/Gawker lawsuit had nothing to do with libel or defamation. It was an invasion of privacy case. Does anyone here believe that a video of someone having sex, taken without their knowledge, and then posted on the Internet is covered by First Amendment guarantees of freedom of the press?
There’s clearly a case to be made that the jury’s award was far too high, and there’s also the issue of whether Thiel’s participation played a role in how the case was managed such that Gawker’s insurance provider would not be drawn into the case. Gawker’s apologists in the press, however would have you believe that any judicial action taken against a media company must by definition be an attack on freedom of the press.
You hit the nail on the head. This is not a case of one censurious jerk shutting down a legitimate publication.
This is the story of a news organization that thought they were above the law, that used the deference the law normally shows journalistic motives not as a shield to protect legitimate public-interest reporting but as cover from which they raided with impunity. They posted videos of people being raped (not Hogan, a different event much earlier), they thumbed their nose at judges daring the law to stop them, and guess what, the law did.
The “big bad bully shuts down a poor innocent news organ” narrative does not fit the facts here.
They posted intimate footage of someone that had only prurient appeal (no 1st amendment protection there), they were ordered to stop, they decided that snark and sarcasm and outright refusal were a good legal tactic, they were sorely mistaken. The jury was sufficiently outraged by their behavior they decided to ensure that this was a death sentence to the business.
This is a victory for society, imagine if Gawker got away with this? what would that mean? it would mean if you claim to be a journalist you can post anything on anyone at any time and ignore orders to remove embarassing, illegally-obtained intimate and private material. The ramifications of THAT are chilling.
For Christ’s sake, we’re not talking about the Pentagon Papers here, this is not the missing watergate tape, it’s a celebrity having sex.