Yes, A Billionaire Looking To Destroy A Media Organization Through Lawsuits Is A Big Deal Even If You Don't Like The Media Organization
from the slapp dept
So I had thought that our post yesterday about Peter Thiel allegedly financing Hulk Hogan’s lawsuit against Gawker would be the only time we posted about that story, but a few things have happened that seem to merit a further post. First, Thiel has admitted to it, and insisted that he views it as “philanthropy.” There are a number of claims that Thiel makes that are quite troubling. First, he admits that he didn’t just back Hogan, but rather gave lawyers money to go hunting for anyone who might want to sue Gawker, directly out of spite.
He said that he hired a legal team several years ago to look for cases that he could help financially support. “Without going into all the details, we would get in touch with the plaintiffs who otherwise would have accepted a pittance for a settlement, and they were obviously quite happy to have this sort of support,” he said. “In a way very similar to how a plaintiff’s lawyer on contingency would do it.” Mr. Thiel declined to disclose what other cases he had supported but there are at least two current cases against Gawker.
Later on he admits: “It’s safe to say this is not the only [case].”
This also seems ethically dubious, even if it’s perfectly legal. I, frankly, don’t have a huge concern over people funding others’ lawsuits. While it can be abused, you can also see where it could be helpful for people who otherwise couldn’t afford the legal costs. That said, specifically funding lawyers to go hunting for plaintiffs with the deliberate intent of killing a media publication? That’s problematic. And that’s true no matter how terrible you think Gawker is as a media property.
Incredibly, Thiel, who has given a large amount of money to the Committee to Protect Journalists, and who has claimed to be a big supporter of freedom of expression and freedom of the press, pulled a classic “I support freedom of speech, but…” line in response to questions along those lines, basically saying that he doesn’t think Gawker counts.
He said he did not believe his actions were contradictory. “I refuse to believe that journalism means massive privacy violations,” he said. “I think much more highly of journalists than that. It’s precisely because I respect journalists that I do not believe they are endangered by fighting back against Gawker.”
He continued, “It’s not like it is some sort of speaking truth to power or something going on here. The way I’ve thought about this is that Gawker has been a singularly terrible bully. In a way, if I didn’t think Gawker was unique, I wouldn’t have done any of this. If the entire media was more or less like this, this would be like trying to boil the ocean.” Mr. Thiel said he had not targeted any other media companies.
And this brings me to the second reason I’m posting more on this story: a surprising number of people (to me) keep supporting Thiel in this, and arguing that because what Gawker did was so horrible that this vendetta against them is okay. This is dangerous thinking. And I wanted to dig in on why it’s so dangerous. First, there’s the obvious: freedom of expression is supposed to protect the speech you dislike the most. Otherwise, we wouldn’t need it. Carving it out because he thinks they’re “bullies” is the kind of stuff that the First Amendment doesn’t allow.
Second, the idea that this won’t impact other journalism organizations is hogwash. As Felix Salmon wrote, this gives other billionaires a “dangerous blueprint” to be vindictive against any publication they dislike. Basically, he notes that publications are always extra careful about writing about notoriously litigious billionaires. But Thiel’s plan is much more dubious: just have lawyers watching for anyone else who may be aggrieved, where a publication maybe wasn’t quite as careful, and then mount a series of lawsuits, some perhaps more dubious than others (hold that thought…) to bury the company in legal expenses. Salmon points out that this opens up a huge number of possibilities for others:
If Thiel’s strategy works against Gawker, it could be used by any billionaire against any media organization. Sheldon Adelson, Donald Trump, the list goes on and on. Up until now, they’ve mostly been content suing news organizations as plaintiffs, over stories which name them. But Thiel has shown them how to go thermonuclear: bankroll other lawsuits, as many as it takes, and bankrupt the news organization that way. Very few companies have the legal wherewithal to withstand such a barrage.
Both Sheldon Adelson and Donald Trump have done vindictive SLAPP suits against news publications that have said things they didn’t appreciate. And then there was the infamous case of billionaire Frank VanderSloot who waged a years long SLAPP legal campaign against Mother Jones over reporting he didn’t like.
Josh Marshall, over at Talking Points Memo also does a good job of showing why this is so concerning:
Regardless of his politics, this news should disturb everyone. People talk a lot about the dominance of the 1% or in this case more like a tiny fraction of the 1%. But being able to give massive political contributions actually pales in comparison to the impact of being able to destroy a publication you don’t like by combining the machinery of the courts with anonymity and unlimited funds to bleed a publication dry.
We don’t have to go any further than Donald Trump to know that the incredibly rich often use frivolous litigation to intimidate critics and bludgeon enemies. Mother Jones had a lawsuit like this, clearly intended to bleed them dry through endless legal expenses. They won, though at a steep cost. But when bully plutocrats do so in their own name there is at least a self-correcting dynamic at work. A plaintiff in a libel suit opens him or herself up to reputational harm and highly intrusive legal discovery which is often enough to scare people away. (Remember, when Trump sued Tim O’Brien for publishing Trump insiders’ claims that Trump was worth less than $250 million dollars, Trump was eventually forced to show O’Brien’s lawyers his tax returns.) In some ways, this lines up with something I noted in my ‘Brittle Grip’ series of posts: growing calls from the extremely rich to not only be able to use their money without limit to shape the political process but to do so anonymously to avoid being “intimidated” or “vilified”.
And even if you still think it’s okay because (1) Gawker is awful or (2) “publishing a sex tape shouldn’t be protected,” consider, again, that Thiel has admitted that he’s funding more lawsuits against Gawker. I currently know of at least four other lawsuits against Gawker — with at least three of them using the same lawyer as Hogan used. And those lawsuits are ridiculous. We’ve written about both the Shiva Ayyadurai lawsuit (with the same lawyer) in which he’s mad that Gawker accurately pointed out that Ayyadurai did not invent email, and the laugh out loud bad lawsuit by Chuck Johnson against Gawker. For what it’s worth, Ayyadurai denies knowledge “of any behind-the-scenes financial arrangements involving my attorneys and anyone else.” So perhaps Thiel is not funding his lawsuit, but with Thiel admitting to funding others, there aren’t that many other choices.
Taken as a whole, this takes SLAPP (Strategic Lawsuits Against Public Participation) to entirely new levels. Flooding the zone with lawsuits, even if some have validity, with the sole admitted purpose of trying to destroy a publication you don’t like has tremendous chilling effects on the press. Wired, with its tongue firmly in cheek, made this point fantastically with an article entitled How Can We Make You Happy Today, Peter Thiel? which is paragraph after paragraph of this kind of thing:
If you don’t know who Peter Thiel is, set your swoon-sockets to Stun, because Peter Thiel is the best—just an awesome, handsome, awesome guy—and we would never want to give the impression that we think otherwise. See how happy he is in this picture below? That’s how we want him to look every time he thinks about his ol’ buddies at Wired: “Great, great team. Total pros. Definitely not gonna get mad and team up with a former wrestler to secretly bankroll a lawsuit against them, and all because I didn’t like what they said about me.”
Three cheers for Peter Thiel!
Yes, it’s exaggerated for comedic purposes, but the chilling effect can be very, very real. Publications that don’t want to face such a vindictive campaign are going to stay silent. And that’s a serious concern.
Meanwhile, Elizabeth Spiers highlights another point on all of this, focusing mainly on the fact that Thiel’s response is massively out of proportion to any actual harm. Her focus is on whether or not this activity coming to light should worry entrepreneurs who work with Thiel, suggesting “I have no sense of proportionality, and might go completely apeshit on you for the slight infraction, or if godforbid we just have a simple misunderstanding.”
Or, as a way of summing it up, if you think that it’s okay for Thiel to do this because you think that Gawker consists of a bunch of jackasses, be afraid, because there’s someone out there who thinks you’re a jackass too. And just hope they’re not a billionaire who has the free resources to wait for any attempt to destroy you… and then call it “philanthropy.”
Hate on Gawker all you want. But this blueprint of trying to bury a company in legal fees, just out of spite, should worry everyone if you believe in freedom of the press. There’s a reason that we’re so concerned with typical SLAPP suits, and why we keep asking for stronger state anti-SLAPP laws and a federal anti-SLAPP law. Thiel’s actions make this even more important today than ever before.