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.

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Comments on “Yes, A Billionaire Looking To Destroy A Media Organization Through Lawsuits Is A Big Deal Even If You Don't Like The Media Organization”

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80 Comments
Anonymoussays:

Oh please...

I cannot fathom how dishonest this article comes off as being.

#1. It does not matter who bankrolls a lawsuit! If justice can be served then it needs to happen.

#2. The real problem is the fact that that SLAPP laws are generally viewed as a fucking joke of course.

The problem still rests with the joke of a Justice System we have allowed it to become. Congress can selectively destroy courts running the system like a fucking circus but they don’t. Another responsibility that congress has been fucking sleeping on for a long long time and practically no one knows can happen.

You want to see this shit fixed? Stop the worthless bitching about Thiel, or other Assholes in Company and lets get Congress to abolish a few stupid fucking courts running amuck and letting SLAPP suits happen! That would fix more problems much faster as judges get put on notice for this stupid fucking shit!

Anonymoussays:

Re: Re: Re: Re: Oh please...

I am not saying that this case served justice, just saying that as long as justice is served it does not matter at all.

I think it is pretty clear Serving Justice is the last thing on any Judges mind these days. They love their dog and pony shows and are some of the most pompous and corrupt people walking around.

Anonymoussays:

Re: Re: Re: Re: Re: Re: Oh please...

just saying that as long as justice is served it does not matter at all.

But it does matter. The end does not justify the means if the means may lead to further injustice.

The man who commits a blatant crime in front of a million witnesses and on videotape still gets his day in court and his presumption of innocence, no matter how easy it might be to convince a jury of his guilt. This is because the next man that everyone in the public and the system is clearly guilty may not get the benefit of that presumption of innocence if we dispense with the red tape so easily.

And in the case of Gawker, a media organization that you may not like deserves the defense of its first amendment right to freedom of the press and freedom of speech, regardless of whether you like what they say or not.

I might like to see Breitbart and the Daily Caller crash and burn, but not at the expense of opening the door to losing Mother Jones and ThinkProgress or even the Onion.

DannyBsays:

Re: Re: Oh please...

This is not Justice. I might not mind the result. But you seem to miss the underlying problem. If this can be done to Gawker, it can be done to anyone.

Real justice is that (or at least closer to this)… if Gawker did one single thing that should bring them completely down, then that one thing alone should be enough to do so through the courts.

Anonymoussays:

Re: Re: Re: Re: Oh please...

Actually I am trying to tell everyone else they are missing the underlying problem.

Just like all of the doctors in America trying to treat symptoms instead of the problem this article is much the same way.

This case is just an example of the Symptom, and nothing we do with SLAPP law or Judges will solve this problem.

I cannot scream and show enough that people must change the diaper that is congress. Most of the power is there, and most everyone ignores it and look at our retarded as all bullshit presidents to figure out what to do.

There is a damn good reason why there are a lot of people in Congress vs the other two branches. Just like that old joke about the greatest trick satan did was fooling the world into thinking he does not exist… when Congress has managed to fool Americans into thinking they do not matter very much and that they are at the mercy of the president.

Americans are far too busy looking for a king and it will only result in the likes of Clintoons, Bushtards, Osama Bamas, and what soon looks to be Drumpfs! Our presidential prospects looks like complete shit!

When poverty and war come to America I will only shed a tear for those that warned the rest of you this is coming since you cannot stop being Mexican, Black, Democrat, Republican, or Other and just start being fucking Americans instead!

We are in this together and if you think Bernie or Hillary Socialism, or Trump Oligarchy is our solution then… just stop complaining about the other guys you hate, because you have no ground to stand on. None of those clowns want to restore Liberty or Support the Constitution. Each one is for dismantling it and shitting on Americans!

naschsays:

Re: Re: Oh please...

#2. The real problem is the fact that that SLAPP laws are generally viewed as a fucking joke of course.

Generally? Such as by whom? Do you have a reference for this claim?

Stop the worthless bitching about Thiel, or other Assholes in Company and lets get Congress to abolish a few stupid fucking courts running amuck and letting SLAPP suits happen.

You’re saying if they abolished some courts (thereby increasing the caseload on the rest of them btw, not a great route to justice), the remaining judges would take notice and step into line? It might work, but I’m sure not convinced that’s the best solution. Not to mention it’s beyond unlikely, so it’s ironic that you complain about “worthless bitching” and then suggest this.

PaulTsays:

Re: Re: Oh please...

“#1. It does not matter who bankrolls a lawsuit! If justice can be served then it needs to happen.”

False. In your system, lawsuits cost money, often lots of money. Many people therefore do not sue, either because the cost of a lawsuit outweighs the benefit of a ruling, or because they know they’re likely to lose. Either way, it can be very time-consuming and expensive.

Enter a billionaire who bankrolls any lawsuit against a specific target, not matter how trivial. Well, now lots of people who wouldn’t have filed can now do it with no penalty to themselves if they lose. Said target is now overwhelmed with lawsuits that it has to defend against. Some of them, they are completely innocent of (see the email lawsuit above where the guy is pissed off they told the truth).

Assuming the billionaire’s resources outweigh the media outlet’s, their company can be killed in court. Even if not, the weight of lawsuits against them may put off readers and investors and destroy the company anyway. It doesn’t matter if most of the lawsuits are frivolous or not likely to be going in favour of the plaintiff for this result to happen.

Does that sound like justice to you? Not to me, it doesn’t.

I agree with the rest of it (though you could have said it more eloquently), but the idea that justice is being served here is laughable even if you agree with the outcome of the initial case.

DannyBsays:

Dangerous precedent

First they came for the Gawkers, and I did not speak out — because I did not like Gawker.

Then they came for the Yahoos, and I did not speak out — because I could not stand Yahoo.

Then they came for the Reddits, Slashdots, TechDirts, PopeHats, etc etc The CNNs, the FoxNews, etc etc

and there was nothing left but a particular viewpoint.

Mason Wheelersays:

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”.

Want to not be vilified? It’s very simple: don’t do things that ordinary people consider villainous!. Trying to do villainous things anonymously just makes you look like a villain with something to hide.

Wyrmsays:

Re: Re:

And you’re missing the point entirely, although it was stated in the article: you’re always someone else’s villain. If that someone happens to be rich, he can use this scheme to bury you under mountains of lawsuits.
Only way to make this impossible is to make access to justice (both accusing and defending) free (as in free beer).
Not realistic you’ll say. Justice had a cost that someone has to pay… but this still makes the rich more “just” than the poor.

Anonymoussays:

Here is what I don’t get, who gets to decide whether a news story is “newsworthy” or whatever word you want to use for it? Should anyone be able to post anything online without consequence? Even here that obviously isn’t the case because Techdirt has stated in the past that making death threats online and publishing personal info in public places shouldn’t be condoned but I never see any sort of middle ground solution.

Mike has previously stated that having the courts decide is a violation of the first amendment (which is ridiculous because the courts are levying a punishment and not setting a law preventing it), but baring that option what else is there?

naschsays:

Re: Re:

Should anyone be able to post anything online without consequence?

Of course not, but the government should not be involved in those consequences except for a few narrowly defined situations.

Mike has previously stated that having the courts decide is a violation of the first amendment (which is ridiculous because the courts are levying a punishment and not setting a law preventing it), but baring that option what else is there?

If he did say that, it was either in some context that was more specific or he misspoke, because of course no one but a court can determine whether particular speech is legal or not. Aside from that, there are other options, such as public criticism and shaming.

Mike Masnicksays:

Re: Re:

Here is what I don’t get, who gets to decide whether a news story is “newsworthy” or whatever word you want to use for it?

The publication and its editors get to decide. That’s the nature of a free press.

Should anyone be able to post anything online without consequence?

Of course not. There are lots of consequences. Advertisers may pull funding. People may stop reading. Your reputation may go in the trash. There are plenty of consequences.

Even here that obviously isn’t the case because Techdirt has stated in the past that making death threats online and publishing personal info in public places shouldn’t be condoned but I never see any sort of middle ground solution.

There’s a difference between what we think is a good idea or morally correct and what may be legally correct. And that’s an important distinction.

Separate from that, there are other scenarios in which publication may lead to lawsuits that DO NOT turn on whether or not something is “newsworthy.” So, for example, a defamation case will focus on whether the information is false and if it was posted with malicious intent. Those are clear standards.

But having a jury that doesn’t work in a newsroom judging “newsworthy” — that’s a clear speech-based regulation and a violation of the First Amendment.

Mike has previously stated that having the courts decide is a violation of the first amendment

Yes, having them decide if it’s newsworthy or not is the problem. If it’s a decision on an issue that doesn’t turn on the ‘newsworthy’ question, my analysis might be different.

I don’t think we ever should have courts determining newsworthiness of a story.

but baring that option what else is there?

The publication’s reputation. There’s a damn good reason why no other publication published the same information. Because they didn’t think it was the proper thing to do. Let Gawker’s reputation suffer, as it clearly has based on the number of “fuck Gawker, let them die” comments around here.

Anonymoussays:

For what it’s worth, Ayyadurai denies knowledge “of any behind-the-scenes financial arrangements involving my attorneys and anyone else.”

Of course he does: that’s what liars, frauds, and con artists like Ayyadurai do: keep repeating it loudly and long enough, and some suckers will believe it even thought it’s laughably false.

Dave Cortrightsays:

Denton should play publisher whack-a-mole

If he wants to come after Gawker, with the force of a billionaire spurned, then just shut it down. Start up a new media site called “Fuck Peter Thiel LLC”, and keep publishing. Put all of the old content up on GawkerArchive.org, and if you want to for good measure, host it out of the states.

The Wanderersays:

Re: Re: Re: Re: Re: Re: Denton should play publisher whack-a-mole

On any grounds which anyone who wants to file a suit against not-Gawker may raise, just the same as he currently does with Gawker.

That’s the insidious part of this strategy: your actual reason for going after the target never gets brought into the courts (and in fact you never do either). All that gets brought into court is one proxy after another, until the target no longer has the resources to fight back.

If the target changes its name or other identity, as long as you can still find them, you can still go after them the same way; you know they’re the same people, and you’re still hostile to those people for the same reasons, and the strategy you’re using lets you avoid having those reasons even brought into the picture – much less having them effectively challenged, and still less having you enjoined from continuing to pursue that strategy.

John85851says:

Stories may become too much of a risk

It’s interesting that the First Amendment protects the media against government interference, but there’s no such protection against self-censorship. How long will be until editors are told to kill stories because the legal department considers it too much of a risk- not from government agents or jail time, but because it’ll offend a 0.5%-er who will use his resources to bury the newspaper in legal bills?

Between this and stories about how Republicans (especially Trump) telling people not to believe the media, it’ll be lucky if we have any good reporters left in a few years.

naschsays:

Re: Re: Stories may become too much of a risk

How long will be until editors are told to kill stories because the legal department considers it too much of a risk- not from government agents or jail time, but because it’ll offend a 0.5%-er who will use his resources to bury the newspaper in legal bills?

It’s probably already happened.

That One Guysays:

Re: "Sing my praises or you're next."

They could be duped, or it could be that they got the message the lawsuit is meant to carry, ‘Make me mad and I will crush you’ and decided to make ti clear that they are 100% behind him and no need to sue them into the ground, they’d never say the ‘wrong’ thing.

bureau13says:

Re: Re: Details

Gawker has a number of media properties that are nothing like the Gawker that published the Hulk Hogan sex tape. None of which is relevant to this, of course. You deciding Gawker isn’t journalism, or Peter Thiel deciding that…it’s just a bad precedent. What if Trump decides HuffPo has to go? What if Soros decides he hates Reason? The inevitable end to this story is not a good one.

Mike Masnicksays:

Re: Re: Details

The detail that techdirt keeps leaving out is that Hogan is suing them for posting, and refusing to take down a sex tape of Hogan. Yet they accused the celebrity icloud nudes were not OK.

We’ve discussed it plenty. So, no, that’s wrong.

Also, no, our position on both the Hogan sex tape and the icloud nudes was identical: icky, morally questionable, but almost certainly legal to publish (hacking to get the content, on the other hand, clearly not legal). So, basically, everything you’re claiming here is wrong.

Neither were actually newsworthy and Gawker isn’t a journalistic organization. It’s a gossip rag.

Again, the First Amendment DOES NOT DISTINGUISH. And it’s easy to declare something not a journalistic organization. People say that about the NY Times, the Washington Post and the WSJ all the time. Just because YOU think it, does not mean it’s so, and that’s also why the First Amendment protects them all. To avoid a situation where someone in power gets to decide who’s “legit” media and who is not.

Re: Re: Re: Re: Re: Re: Details

Nail hit on head, news at eleven.

THISis what it’s all about, people! Do you REALLY want a world in which we are obliged to get permission from everyone involved before posting stuff online, even if it’s entirely innocent?

Believe me, when the Censor’s office is finally established, it’ll have an innocuous title, e.g. “Dept. of Online Communications” and you’ll be putting your request and data files (photos, videos, or description thereof) on forms with your full details and the number of the licence you need to access the internet, which I’m sure your ISP will be happy to provide, and which they will yank after six accusations of copyright infringement. Don’t worry, you’ll be let back online after paying the administration fee for contesting the accusations.

This is where we’re headed. Don’t be distracted by the fact that Gawker is a salacious gossip rag. If Gawker can be taken down after being bankrupted by multiple lawsuits, so can anyone. ISPs will move to protect themselves… you can see how I got to my dystopian vision, can’t you?

Anonymoussays:

Re: Re: Re:2 Re: Re: Re: Re: Details

usually, but not always. From the link:

“Despite the broad scope of potentially newsworthy topics, you risk losing your protection from liability if you exceed the bounds of common decency: ‘The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern.’ Virgil v. Time, Inc., 527 F.2d 1122, 1129 (9th Cir. 1975). “

John David Galtsays:

How far does this principle reach?

Would you equally want to prohibit this suit by Greenpeace in retaliation for surveillance? Or prohibit Bill Gates from financing SCO v. Linux?

There used to be legal principles, champerty and maintenance, that forbade third parties from financing lawsuits. But the courts have pretty much abandoned those two principles, and I think they were right — it’s simply too unfair to allow one side of a lawsuit, but not the other, to seek outside help.

What Techdirt and other media can constructively do is to seek to unmask such donors, as early as possible, so that if they are (or own) companies, the public can respond by giving them more or less business.

naschsays:

Re: Re: How far does this principle reach?

Would you equally want to prohibit this suit by Greenpeace in retaliation for surveillance? Or prohibit Bill Gates from financing SCO v. Linux?

Was the purpose to destroy or punish an organization they didn’t like for reasons unrelated to the actual lawsuit in question? If not, then it’s a different situation.

it’s simply too unfair to allow one side of a lawsuit, but not the other, to seek outside help.

Why can’t the other side seek outside help?

Whateversays:

It’s easy to hate gawker. Very, very easy in fact.

For me the reality is simple: If Gawker wasn’t putting up insanely over the line stuff, there wouldn’t be any litigants to be propped up by this billionaire.

If gawker was clean, they wouldn’t have as much to worry about. They open the door, so more power to the rich guy for giving them all they deserve.

Anonymoussays:

Thiel = journalism's East Texas patent troll

What many people supporting Thiel (or hating Gawker) seem to be overlooking is courts are wildly biased and variable, and “justice” is whatever a tiny group of people, somewhere, says it is for everyone else in the country or world.

Thiel’s actions using Hogan as his local Florida puppet-hero are the gossip press version of a patent troll filing suit in East Texas.

Disturbing to see people clearly understanding why patent trolls and DMCA-copyright abusers are bad for society yet supporting Thiel.

Anonymoussays:

Actually the First Amendment very clearly DOES DISTINGUISH that the “press” does not have the freedom of facing consequences for it’s action. The First Amendment, as people like to point out for the speech clause, only prohibits the “making of any law” restricting the freedom of the press. How the First Amendment clashes with someone funding law suits to drive Gawker into bankruptcy is not as obvious as some people think it is.

Anonymoussays:

I guess I’m not feeling what he (Theil) did here is wrong or scary. He’s bankrolling a case, he’s not bribing the jury or the judge. THAT would be scary. Gawker isn’t the underdog here. If Hogan wins out in the end, then it’s nobody’s fault but Gawker’s. Are you suggesting that if Hogan wins this case, that it isn’t because it was valid, but because his lawsuit was bankrolled by somebody who could afford good lawyers? As opposed to a corporation like Gawker, who could likely have afforded to freeze out Hogan, even if his claim is truly justified? The real travesty is our justice system is pay to play. I feel like him bankrolling Hogan just puts Hogan and Gawker on an even footing going into this.

naschsays:

Re: Re:

Gawker isn’t the underdog here.

You think Gawker has more money to throw at this than Thiel does? I’m not familiar with the finances of either party but I’m not sure that is correct.

Are you suggesting that if Hogan wins this case, that it isn’t because it was valid, but because his lawsuit was bankrolled by somebody who could afford good lawyers?…The real travesty is our justice system is pay to play.

Which is it? The money doesn’t make a difference, or you get as much justice as you can afford? You seem to be claiming both, unless I’ve misunderstood.

I feel like him bankrolling Hogan just puts Hogan and Gawker on an even footing going into this.

You may be missing the larger point, which is not so much that him funding this one lawsuit is a serious problem, but that him seeking out and funding a bunch of lawsuits in order to try to sink Gawker, for reasons having nothing to do with the actual lawsuits, is a problem.

Anonymoussays:

Since when is publishing sex tapes without consent legal?

Uh, somebody help me out here. Why is publishing sex tapes surreptitiously recorded and without consent of all parties involved supposed to be protected speech? Ignore whether the entity of Gawker is a legitimate media company, what makes their behavior legal? If I crouch outside my neighbors window and film them fucking all over the house, what happens to me if I publish it myself? Does publishing via my newly minted I’m-Totally-A-Legit-Media-Member-LLC website mean I can release illegally created and distributed content?

Mike Masnicksays:

Re: Re: Since when is publishing sex tapes without consent legal?

Why is publishing sex tapes surreptitiously recorded and without consent of all parties involved supposed to be protected speech?

1. There was plenty of evidence that it was recorded with consent of all parties.

2. Gawker argued that Bollea regularly talked about his sexual prowess making the details newsworthy.

3. The company edited the video down to just a small snippet.

I disagree with the decision to publish it, but when you get to the point of having juries make editorial decisions based on whether or not they think it was newsworthy, that’s a 1A concern to me.

And, again, this is NOT just about the one lawsuit. It’s about a series of (dubious) lawsuits focused entirely on destroying Gawker, not finding legitimate grievances.

Anonymoussays:

Re: Re: Re: Re: Since when is publishing sex tapes without consent legal?

There was plenty of evidence that it was recorded with consent of all parties.

Well, it was claimed in court that it was recorded without Bollea’s consent.

Gawker argued that Bollea regularly talked about his sexual prowess making the details newsworthy.

And it didn’t work because that argument is bullshit. This was just a giant corporation exploiting an invasion of Bollea’s privacy to make money. Corporations do not have rights, citizens do. We grant corporations the fiction of personhood and a limited subset of rights for the convenience it offers in carrying out their operations to benefit the public. If corporations are going to hide behind their privileges to violate the rights of citizens then they deserve to be bankrupted by litigation.

Mike Masnicksays:

Re: Re: Re: Re: Re: Re: Since when is publishing sex tapes without consent legal?

And it didn’t work because that argument is bullshit. This was just a giant corporation exploiting an invasion of Bollea’s privacy to make money. Corporations do not have rights, citizens do. We grant corporations the fiction of personhood and a limited subset of rights for the convenience it offers in carrying out their operations to benefit the public. If corporations are going to hide behind their privileges to violate the rights of citizens then they deserve to be bankrupted by litigation.

What you wish the law to be and what the law actually is are two different things. So, really not sure how to reply to your mildly ridiculous rantings above.

As for what happened in court, you’ve left out the rather important context including (1) the judge flat out stated that she did not like the kind of things Gawker published and did not think they should be allowed (2) that same judge blocked Gawker from presenting a ton of evidence that would have made the situation clearer for the jury (3) the jury was a “hometown” jury for Bollea, and much of the case focused on how crazy those NY media types were. (4) The case was originally tossed out of federal court on First Amendment issues and (5) the appeals court that will hear it has already expressed First Amendment concerns and already reversed the judge on the injunction part.

So, yeah, you can point to this verdict all you want, but it’s lifespan is likely to be short. I do wonder if you’ll come back afterwards and say that now that the case has been reversed you agree with Gawker now, if you’re so influenced by court rulings.

Whateversays:

Re: Re: Re:2 Re: Re: Re: Re: Since when is publishing sex tapes without consent legal?

Interestingly, the sex tape itself may be illegal to run if they don’t have proper USC 18 section 2257 proof of age documents. Without them, there is no way to know if the performers are in fact of legal age. Without that proof, the video is essentially worthless.

This is one of the reasons why all of the “celebrity sex tapes” hype that hinges on the videos being stolen or whatever is horse crap. You can’t run the videos in the US without 2257 documentation, plain and simple. It’s the law (and has stood up in court).

Oh, and Mikey, how come my account is blocked and comments held again? Did I say something to offend one of your minions?

Anonymoussays:

Re: Re: Re:2 Re: Re: Re: Re: Since when is publishing sex tapes without consent legal?

What you wish the law to be and what the law actually is are two different things.

LOL. The law is whatever the courts say it is. My ranting is owing to bafflement at this becoming a case for 1st amendment rallying. What could be more invasive of personal privacy than secretly filmed sex acts? (I like how you ignored my supporting link that mentioned Bollea claimed in court not to have consented to the recording.) If that flies, what else can giant corporations get away with? Why not everyone’s sequenced genome, obtained from stealth swabs? Or web browsing history sourced from helpful ISP insiders?

I fail to see how proponents of personal liberty cannot cheer this ruling. A well-funded corporation violated a citizen’s privacy to make themselves wealthier while seeking to absolve themselves of liability by hiding behind the corporate veil and their guise as a media organization. It is not only government that abrogates human rights and it is repulsive to see so many speaking up for the “rights” of a corporation instead of the rights of the private individual. Generally, both government and corporations work against the rights of the individual, often in concert. When one of those rare cases arises where we can get one of them working against the other for the benefit of the individual, the outcome should be applauded.

Mike Masnicksays:

Re: Re: Re:3 Re: Re: Re: Re: Re: Since when is publishing sex tapes without consent legal?

LOL. The law is whatever the courts say it is.

And let’s see what the appeals court says. Will you accept that it’s “the law” after they rule?

My ranting is owing to bafflement at this becoming a case for 1st amendment rallying. What could be more invasive of personal privacy than secretly filmed sex acts?

Lots of things invade personal privacy, but are still protected by the First Amendment if reported on. People report on the sex lives of famous people all the time. It’s pretty standard tabloid fare, and it’s protected. Ditto releasing government secrets. That’s “private” info as well. And it’s protected.

See this list: http://blog.bennettandbennett.com/2014/10/first-amendment-101/ Show me where it says that “personal privacy” is an exception to the 1st amendment.

(I like how you ignored my supporting link that mentioned Bollea claimed in court not to have consented to the recording

I didn’t ignore it. I pointed out that the judge refused to let Gawker present the fairly strong evidence to the contrary, showing that Bollea knew about the recording (hint: he talked about it).

If that flies, what else can giant corporations get away with? Why not everyone’s sequenced genome, obtained from stealth swabs? Or web browsing history sourced from helpful ISP insiders?

You’re confusing two separate things. One is the potential privacy violation and the second is the reporting on it. There may be a privacy violation against whoever filmed it if you’re correct that Bollea didn’t know about it. But that’s between them. Reporting on it is protected speech.

The situations you describe here have no reporting component, an the actions of getting the info may violate certain other laws. But, again, getting =/= publishing.

I fail to see how proponents of personal liberty cannot cheer this ruling

Then you have very little understanding of the law or liberty.

Anonymoussays:

Re: Re: Since when is publishing sex tapes without consent legal?

You’re conflating two things that are distinct acts. Crouching outside your neighbor’s window may be trespassing, and filming through an open window may violate peeping-tom laws.

However, if you do both those things, and record a juicy sex tape, and give it to me, and I publish it, I have done neither of those things. I didn’t trespass. I didn’t peep. I merely published material that was given to me, so if someone has some issue with my actions, their complaint MUST be solely confined to the publication, not to the acquisition…in which I had no part.

I don’t particularly approve of publishing sex tapes (although many are certainly made with the end goal of causing them to “leak” in order to reap the reward of free publicity) but it’s still publication and thus completely, obviously, squarely covered by the 1st Amendment. This is not open to debate or question.

Anonymoussays:

Re: Re: Re: Re: Since when is publishing sex tapes without consent legal?

This is not open to debate or question.

The verdict here, for one, says otherwise. Invasion of privacy is a crime. Being a “celebrity” has proven to limit one’s rights in this area but they still exist and it is laughable to claim that surreptitiously recorded sex acts are fair game just because someone is a public figure.

Anonymoussays:

Re: Re: Re: Re: Re: Re: Since when is publishing sex tapes without consent legal?

The court is, of course, dead wrong. The fact that the topic matter is sex plays to the Puritan ethic so widespread in this country, but it is irrelevant. The fact that we disapprove is also irrelevant. The fact that the subjects didn’t want it published is also irrelevant.

Nobody is disputing the factual nature of what’s on the tape: to suppress it is to suppress the publication of facts, and that must not, cannot, be done, because it will very quickly lead to the suppression of other facts that are inconvenient or objectionable.

Anonymoussays:

Eyes Glazing in 3, 2,...

“… this blueprint of trying to bury a company in legal fees, just out of spite, should worry everyone…”

Yeah, I guess, but when the combatants get to be the size of Godzilla vs. a mega-bot composed of thousands of smaller battle bots, my eyes sort of glaze over, and it’s time to hand out the rusty hooks and crack a cold one.

Still doesn't matter

From my perspective, the only thing that matters here is did Gawker violate the law? If you do your job legally, it does not matter what your ethics are. In this case it was proven that Gawker violated the law and is found at fault and owe money. Who funded it or bankrolled it means little to me. The only journalist organizations this should affect are ones whom do not understand the law.

From my perspective the “new school” journalist have not learnt the lessons of the dinosaur journalists and news organizations of the past. It’s a lesson they need/should learn.

Chief Nobodysays:

Re: Re: Still doesn't matter

If you do your job legally, it does not matter what your ethics are.

Maybe that’s the way you like the people you hire, but if you suck at ethics your a liability. It can make your company look like it sucks. If it looks like it sucks, it probably does. Still there are all kinds of corporations out there that will be more than willing to play ball, however much your ethics make people look at each other with that big WTF question mark on their foreheads. If its all amouting to a massive tax right off, then never mind.

Mike Masnicksays:

Re: Re: Still doesn't matter

From my perspective, the only thing that matters here is did Gawker violate the law? If you do your job legally, it does not matter what your ethics are. In this case it was proven that Gawker violated the law and is found at fault and owe money. Who funded it or bankrolled it means little to me. The only journalist organizations this should affect are ones whom do not understand the law.

Are you okay with the 4 other lawsuits from the same lawyer against Gawker, almost all of which are objectively ridiculous?

This isn’t about whether or not Gawker broke the law. It’s about piling on lawsuits solely for the purpose of bankrupting a publisher someone doesn’t like.

And the whole “no big deal if you don’t break the law” statement is ridiculous. People get sued all the time for not breaking the law and the legal fees alone can bankrupt them. We get threatened with lawsuits frequently (including this very week).

Anonymoussays:

Re: Re: "The Law" is just physical force in a different domain

“The Law? is (and has always been) just a mental surrogate for physical force: a more efficient way of ensuring the lower classes who have to follow the law behave as their owners demand.

While “The Law” exists for the collective benefit of the oligarchy that writes it, to control the lower classes as a whole, individual members of the oligarchy can use the physical force of the government to pursue their own goals (and vendettas) by renting that force – in the form of the legal system – for a fee.

Money is energy, the legal system is a weapon, and the unfettered use of the second by the first is uncontrolled violence.

Anonymoussays:

Still no comment from Mike on the law surrounding the publication of private facts? Just going to shift your position from “well, sex tapes are newsworthy if a celebrity talks about his sexual prowess” to “well, there are multiple lawsuits so clearly this is just some rich asshole exploiting the legal system to attack totally legit operations”, as though judges don’t get pissed at groundless suits and toss them with regularity.

Mike Masnicksays:

Re: Re:

Still no comment from Mike on the law surrounding the publication of private facts? Just going to shift your position from “well, sex tapes are newsworthy if a celebrity talks about his sexual prowess” to “well, there are multiple lawsuits so clearly this is just some rich asshole exploiting the legal system to attack totally legit operations”, as though judges don’t get pissed at groundless suits and toss them with regularity.

Not sure what you want me to comment on? I made my point earlier. All indications are that it will be overturned on appeal, and the earlier rulings of the appeals court suggest they recognize that this is protected speech. We shall see.

Harald Ksays:

Re: Re: Re: Re: Re: Re:

If you believe this crap, why don’t you go ahead and publish e.g. the stolen sex tapes associated with “the fappening”? At least this lawyer has the consistency to admit that by his own logic, revenge porn should be perfectly legal.

I say that if you think there should be a right to privacy at all, then you must be against publication of stolen sex tapes.

Yes, sure, it’s possible that the extremely rare politically relevant sex tape would be attempted suppressed under this provision. This is a hypothetical threat to democracy. But legalized sexual blackmail would be a far more serious threat. If catching the media’s eye – for any reason – would make you fair game for any privacy invasion, who do you think the winners and losers will be?

My guess is that you’d get fewer normal men and especially normal women in the public eye, and more people like Trump, who don’t give a damn about shame as long as they are the center of attention – in short, reality TV stars.

Anonymoussays:

I think it should be absolutely ok for anyone to help out anyone else with their lawsuit costs, BUT….

This here is but a symptom of your problem. The legal system is, to put it mildly, a heap of junk. It has so many problems it’s difficult to know where to start. And one of those problems is the fact that justice is something almost nooone in the country can afford anymore. In any legal dispute, be it patents, copyright, SLAPP suits, anything you want – the first and most important factor currently is who can afford the longest fight and the biggest lawyers. The merits only become relevant if both parties involved are about level on their budgets.

A federal anti-SLAPP law would help in cases like this, but not always and not in other areas of law. And as long as you don’t fix the cost problem of your legal system, there will always be those who weaponize this flaw.

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