>He added: “It’s not for me to decide what happens to Gawker. If America rallies around Gawker and decides we want more people to be outed and more sex tapes to be posted without consent, then they will find a way to save Gawker, and I can’t stop it.”
An important reminder of exactly what conduct, on Gawker's part, people are defending. They have no moral high ground, noble principles, or higher purpose. They're scum, and it's pure karma that they're being destroyed by someone they outed.
I don't think Thiel is being unethical and I think the decision in this case was valid.
That said I do in general have a problem with all this. I mean what does it say about our justice system when a millionaire needs a billionaire to help seek justice for himself. Is that how it's going to be in the future? If you find yourself wronged by some massively wealthy or powerful entity you now have to find an equally massively wealthy or powerful entity to back you in seeking justice?
We've all known money has far too much power in the legal system. But this just lays it out plain as day. How can anyone look at this and think, "Yea that's a good way of handling things".
I really doubt whether any just society exists in today. Rich and powerful will always bend the rules. These days the rule ~breaking~ bending is more subtle than the previous. To quote Thucydides[1] "... right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must."
The challenge still exists for us to find a way to build more just and egalitarian societies.
I cannot speak for other European countries, but in Switzerland, much less of the cost of the judicial system is on the individual. Also for minor the there are dedicated judges appointed to quickly resolve disputes without huge processes. And finally, there's insurance you can get that will pay a lawyer for you if you really get into some nasty situation ever, something I haven't found in the U.S. where it would actually make even more sense, given the litigation trigger happiness here.
The US also has a small claims court, every country does.
The problems is that people have very skewed view of the US legal system mainly because of big cases that are sensationalized by them media.
Most law suits in the US don't end up as multi-million dollar cases.
Donate to the ACLU if you want things to change but don't blame a good thing for being done. Hopefully this will lessen the likelyhood of lawsuits needed to be brought in the future.
> what does it say about our justice system when a millionaire needs a billionaire to help seek justice
> "Yea that's a good way of handling things"
That's my view in a nutshell. Despite our reputation as supposed money grubbers perpetually on the side of Big Business I've yet to meet any libertarian who thinks the poor are less deserving of justice, or as we say here: 'a fair shake'.
I wonder whether Hogan/Bollea was advised by "his" counsel about the ramifications of dropping one of the pieces of litigation - a piece that would have increased the ability for Bollea to collect that damage award.
As it happens the particular tort that was dropped was the only one that would allow Gawker to use their insurance to cover the liability of the verdict awarded.
Thiel's goal is to destroy Gawker. A Gawker that is less able to pay out a verdict (because the verdict was $100M, but Gawker's revenue is only around $40M/yr) is going to go bankrupt, versus potentially staying in business if their insurer pays out.
What's Bollea's goal? To destroy Gawker? Or achieve recompense? Or indeed both?
Given that the counsel used by Bollea in this case is the same lawyer/law firm that Thiel is also channeling significant other money - and clients - to, for exactly the same thing, how clear is it exactly who the firm's client _really_ is - Bollea, or Thiel?
And if Bollea and Thiel's goals are not the same (because as Thiel says, Bollea couldn't afford to do this himself), whose is going to take priority? Was Bollea briefed on the consequences of dropping this part of the suit (thus risking the ability for him to be paid/paid as much)?
If so, was he okay with it? Is he expecting external compensation? Do the lawyers have a conflict of interest here? Is Bollea a knowledgeable/willing partner, or a semi or wholly uninformed pawn?
However reprehensible Gawker is in this, there absolutely a wide crevice where there are perfectly valid ethical questions about Thiel's involvement and motivations in this whole debacle.
>...there are perfectly valid ethical questions about Thiel's involvement and motivations in this whole debacle.
Your post basically reads like a law school ethics question/answer. You did a great job issue spotting. Law being one of the most highly regulated industries there are rules on point, so I can answer some of your questions.
Here is how the Florida Rule of Professional Conduct reads "Rule 4-5.4(d): Exercise of Independent Professional Judgment. A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services."
In other words, under the rules Bollea is the Client. As such has full decision making power with the attorney-client relationship. Not only would funny business result in the disbarment of the lawyer, there are also a lot of practicalities to law that prevent the undue influence on the lawyer.
For example if Bollea wants to settle its not like Thiel could direct the firm to trial for a chance at a bigger judgment over Bollea's wishes, there would be record and it would be grounds for a malpractice claim and disbarment. Lawyer's can't even withhold settlement offers from clients, without there being a record, and again grounds for malpractice and disbarment. Your issue about dropping the claim against the interest of Bollea's ability to collect is interesting, but again if it can be shown Bollea suffered damage (lost ability to collect full judgment through insurance) because the lawyers breached their duty to the client that is grounds for malpractice.
Right, I'm not saying "this is cut and dried -wrong-" but that it does raise what I feel are valid questions about the influences, both conscious and subconscious that surround this whole situation.
Like you say, Thiel could not direct the firm to change strategy, but on the other hand (and I realize that this may come across as an accusation where one isn't intended), no doubt Thiel is talking to the law firm, and directing multiple people to this particular firm, and given that he has been vocal about his goals, it's also possible that such things creep in to decision making processes.
Bollea and Thiel's interests may also be perfectly aligned.
>but that it does raise what I feel are valid questions..
I totally agree, and the Bars that regulate lawyers agree. Not just valid, but serious enough issues for the Bars to create Rules to try to guide lawyers when confronted with these exact scenarios. Notwithstanding the Rules and severe punishments, they can still be broken, and as you suggest violations can be intentional and unintentional only clouding these ethical issues.
Just don't under estimate how archaic the Bars Rules are in practice. For example, the power of Admonishment wherein lawyers are dragged in front of groups of their peers to be publicly ridiculed, a record of the event is made and distributed among the community. Even if not disbarred, punishment is not only humiliating but can potentially ruin a career anyhow.
>Bollea and Thiel's interests may also be perfectly aligned.
I haven't confirmed, but I think the gist is that separate and apart from the firm's representation of Bollea, the firm represents Thiel in various unrelated legal matters. If true, coincidentally we know that at minimum Bollea and Thiel don't have adverse interests[1]. Moreover, before a firm represents a client (Bollea) they must perform a conflict check against all existing clients, which coincidentally would have included the payer, Thiel.
Funny enough I don't think such a conflict check is required of someone who pays the lawyer for another (Thiel if he wasn't a client of the firm) and such a rule would seem to make sense. Though it would be burdensome in the instance of crowdsourcing lawsuits which will probably begin to become more of a thing. It would also be a strange analysis in the criminal justice context where the tax payer is paying the judge, the prosecutor and the defense (in the instance of public defender cases), or even insurance cases where opposing parties are both insured by the same company (e.g. my insurance company is representing me and paying for my litigation, and they are also representing and paying the opposing litigation...a conflict).
Other people get to 'decide' at appeal time: I were the judge / on a jury on a case were the complainant was tactically dropping charges with the aim of bankrupting the other party rather than seeking justice, I'd probably decide against them. I find using the justice system in pursuit of revenge at the cost of actual justice rather perverse.
You are misunderstanding the system, I think. If Bollea can win the case, and that judgment would bankrupt Gawker, then under our legal system Bollea has the right to bankrupt them. He also has the right to settle with them if he finds an offer they make advantageous. But that is completely up to him.
Whatever he chooses, for whatever reasons he chooses, is justice. By definition. To be honest, if anything is a perversion of justice, it's a settlement. Because a settlement prevents a verdict from ever being reached and the legal 'truth' of the situation from ever being found.
> I find using the justice system in pursuit of revenge at the cost of actual justice rather perverse.
Its major function, crudely, is to prevent Hulk Hogan from visiting Nick Denton in character.
It isn't to prevent the pursuit of revenge. It is to prevent violence and vendetta by having a neutral third party arbitrate. The pursuit of revenge for wrongs committed is the notion and motivation behind the elaborate social institution we call justice.
No, the only person with a cause of action here is Bolea himself. Until and unless he asserts that something happened which violated his rights, the entire argument is bogus.
He is the only one who can decide that his lawyer somehow wronged him here. The question is simply not before the court. They decide the arguments presented to them, they can't simply invent one to decide. And Bolea is the only person who can make such an argument here.
Also, it's going to be hard to argue that his lawyers bungled things when he won a huge pile of money.
"Also, it's going to be hard to argue that his lawyers bungled things when he won a huge pile of money."
And then made a decision that meant that in all likelihood he will see either none of, or a tiny fraction of that money, when he could have seen nearly all or all of it by virtue of a liability insurance pay out.
That depends on the bankruptcy court. Maybe he has enough money and is happier this way? Like I said, anyone other than Bolea arguing this is full of crap. He's the only one who gets to decide what is or is not in his interests.
Until and unless Bolea says otherwise, the uninformed speculation to the contrary is simply absurd.
These are reasonable questions but there is no evidence that Terry Bollea was an unwilling participant. Obviously Thiel wasn't in it for the money but (higher potential) compensation was not necessarily the main motivation for Bollea either. He's already a wealthy man by most standards and probably more concerned about his (Terry) honor and causing his character (Hulk) to lose face because if that hurts the macho public image he's deliberately developed then he loses both future income and public presence.
Some people will find the idea of Bollea having a moral code or honour to be facetious but I'd like to remind them that people have very different definitions of what that means.
No, and that's a fair point, these are only the questions that come to my mind when reading this, certainly not "something that happened".
By all intents, though, Bollea is (at least to his own words) "near bankruptcy", due to divorce. So it seems odd that he'd also - after being awarded a large sum - which is all he'd sought before - _then_ decide to drop the claim which offered him his only real chance at seeing any noticeable part of that award.
Certainly there is more to life than money, though, as you point out, moral codes and honor.
I also am curious as to whether he would have gotten the award he did if the jury felt that it would bankrupt Gawker, rather than cause an insurance liability payout - that seems a little bit unusual.
This is an admittedly contrived example, so bear with me - there are some analogies, and some discrepancies, and this is the best I can do:
I am driving negligently. Setting aside any criminal charges that may cause me to face, I come careening through and have an "accident". Subsequent to that, your property is destroyed, perhaps as part of a chain reaction, me coming through the fence. Perhaps as a result, you're injured. You lose your livelihood, you lose your house.
You sue me, for damages related around this whole messy incident. Medical costs. Lost livelihood. The loss on your house when foreclosed, damages etc.
The jury says hey, you're absolutely right, he was negligent and we're going to award (say) $2M in damages.
Here I am, I'm a careless and reckless driver. But I do have good insurance. It has a whole bunch of third party, property, and liability coverage. So it sucks for everyone, but you have the ability to be "made whole" (as far as is reasonably possible). I on the other hand am out of business. The vehicle I drove was my truck I used for my own business. My fault, consequences of my actions, etc, etc. I'm probably done for.
Then you decide, at the last minute of the court case, to drop any claim of damages explicitly about the accident. "Nope, we don't want to pursue the damages claim directly related to the accident itself. We are still going to pursue all claims related to any of the fallout, the loss of house, livelihood, but the accident itself, we're waiving that".
This has the curious effect of 1) meaning my insurance company says "Well, sorry, pal, we no longer have an interest. You're not being sued over damages due to your accident, you're on your own", and 2) which you realized, also realistically means you have near zero chance of collecting any of the moneys awarded, because this is putting me out of business.
I would certainly be asking questions of you there, were I the judge: are you aware of the consequences of this decision? what motivated the change, certainly at this point in proceedings, and I'd be asking the jury how that would affect the award, because in most cases there is going to be -some- (not the only) element of the likelihood of payment of the award.
So the judge could use discretion such that all the damages related to the fallout be paid. Otherwise it's a bit like being somebody in debtor's prison to pay their debts. This means the side affect of killing Gawker should be taken into account by the judge.
There are at least three confounding issues though. The first is that this guy who crashed into your house has repeatedly done the same thing to other people's houses. He's a habitual drunk who shouts mean things while shaking his fist at other cars as he drives. Public menace. Maybe having him off the road entirely isn't such a bad solution. He can catch the bus or get a new line of work and pay off his debts gradually.
The second is that this guy has other coworkers that could lend him money to pay the damages. He's not homeless just yet. The question is whether his support network exists for doing so. (i.e. Gawker could just about scrape by, it's not dead yet)
The third is that the man could just declare bankruptcy. Then all his assets are gone but he won't owe the remainder for covering the problem he caused. A new start is underrated. (i.e. Gawker cannot pay what it does not possess, I assume here Gawker is a LLC of some type) A harsh punishment by the judge but we have to send a message to these drunks driving crazily on our roads.
Great post. However, most of the people I've seen come out against Thiel have not taken this argument. They've painted it as a billionaire shutting down a news outlet and silencing free speech. Which is very far from the truth.
Since you cannot put the genie back in to the bottle, but you can 'get revenge' by ending the business, I can see how it would be both logical and in the clients best interest to point that out.
Which also happens to align with the overall interests of the lawyer's patron.
At no point have I said that Thiel acted unethically, either. I think it's natural, and valid, to ask questions, or discuss why someone might act in a way that on the surface appears deleterious to their own interests, particularly when there is someone behind the curtains who does have a different, or tangential interest.
It's unethical because (a) Thiel was funding an unrelated case merely to exact a personal revenge, (b) he appears to be behind the decision to drop a certain charge from the lawsuit only so that Gawker wouldn't have insurance cover - it shows vindictiveness, (c) Thiel's goal seems to be to bankrupt and shut down Gawker.
Most of all, if this was indeed above board and ethical, why did Thiel feel the need to do this surreptitiously until outed by the NYT (is he going to fund someone to sue them too?).
> (a) Thiel was funding an unrelated case merely to exact a personal revenge
That would be unethical if the case were frivolous, or designed to bankrupt Gawker through "court fees" defending themselves against unreasonable complaints, or so on.
Gawker's going bankrupt, if they do, because they lost the case, for what I think were correct reasons. It can not be unethical to help someone get justice they were owed. If there are more cases like this one, I hope the plaintiffs win those cases too.
Would Gawker go bankrupt if the damages were set at $10 million? What about $20 million? $100 million? Why not $1 billion.
Hulk Hogan is already a very wealthy man. Did he truly need many many millions more? Is that just and fair?
Let's say you do something, ANYTHING, that someone takes issue with and brings you to court with a fully staffed legal team. You lose the case. You have to pay millions in damages. Would you keep true to your word that you hope more cases like this happen and that the plaintiffs win those cases too?
> Hulk Hogan is already a very wealthy man. Did he truly need many many millions more? Is that just and fair?
Yes, it is. Much of the damages were economic. He lost his job with WWE due to Gawker's publication. That's how much his job was paying him. It is a good thing that people can get economic damages from courts, even if they are rich. (Though it would be much better if everyone could receive the same level of justice as Hogan did, regardless of how rich they are.)
> Let's say you do something, ANYTHING, that someone takes issue with and brings you to court with a fully staffed legal team. You lose the case. You have to pay millions in damages. Would you keep true to your word that you hope more cases like this happen and that the plaintiffs win those cases too?
I'm so confused by this argument. The reason I hope more people in Hogan's situation win their cases is that I think the jury verdict was correct, and achieved justice for him, as it would for them too.
I expect I would be personally unhappy about losing millions, as anyone would. But it would only be wrong if it was for an unjust reason. That's not the case here. There is no hypocrisy in wanting just cases to succeed and unjust cases to fail.
Wealthy people tend to have a lot of income. He lost a lot of income due to Gawker. Yes, it's just and fair. Bollea was making millions and millions a year in roles and endorsements, and that dried up after Gawker went after him. Gawker makes millions too. What Gawker did in the Bollea case has nothing to do with journalism. They wanted to create a sensationalist tabloid story with stolen footage of a private and embarrassing encounter to make money. Like any business endeavor, there's the possibility that you lose money. When you're a non-essential business that costs someone millions, be expected to pay millions.
Being able to use the courts to sue for defamation is pretty widely accepted as legit by most if not all strains of libertarianism. It's actually a clear example of a valid case in which governmental authority is necessary.
It is, but that's not what Thiel is trying to do. He is backing an unrelated lawsuit in an effort to squash them. The action that he had a problem with, them outing him, is in no way illegal, so he got into a proxy war against them. That is unquestionably unethical. The ethical thing for him to do would be to come at them head on in the public arena.
Especially when you champion yourself as taking the moral high ground. "The right to face your acccuser" as opposed to "having them bankroll your opponents behind the scenes".
Libertarianism: "All the parts of government that benefit rich folks are legit/necessary/essential. All the parts that benefit poor folks are illegitimate/aggression/tyranny."
That's right-wing libertarianism. Libertarianism was first formulated by a French anarcho-communist named Joseph Déjacque in the late 1800's, who lambasted Proudhon (of "property is theft" fame) for not being sufficiently focused on liberty.
Right-libertarianism on the other hand was basically an attempt at reformulating the theories of Ayn Rand and von Mises to something that would allow a common from on many issues with liberal groups on the left.
despite the somewhat narrow notion of what "libertarian" encompasses in US politics, even there they aren't equivalent to zero-government anarchists.
> to crush free speech
i'm increasingly believing that the notion of "free speech" has asymptotically zero meaning in general discourse. that said, an interesting counterpoint is in the article: "Mr. Thiel has donated money to the Committee to Protect Journalists and has often talked about protecting freedom of speech."
it certainly appears to me that he sees gawker as a particularly hostile and unethical enterprise. the cases wouldn't exist without gawker's behavior, and the judges ostensibly render judgement according to the law.
Not sure why you were downvoted for this. One of my bigger criticisms of Thiel would be that he seems to have a very hypocritical sort of "libertarianism" - e.g. founding Palantir, basically another spy agency for the US gov. But hey, I guess if you can make a buck...
That aside, I don't think this is the best example. Litigating through courts is pretty fundamental to anarcho-capitalist ideas, so this seems fairly consistent with that worldview.
I know how it seems at first but you should probably hear out his explanation.
First I take it you accept the necessity of gathering intelligence and analyzing it i.e. You don't believe the world is a John Lennon song.
He says that Palantir is a very targeted approach to surveillance. It was founded at a time when dragnet surveillance proposals were being thrown up. The 'greater good' in this sense is preventing a more Orwellian world by the method of being effective and flexible in a way that sprawling govcomplexes tend not to be.
When Snowden came out Thiel was alongside Binney in criticizing the NSA for being overwhelmed in irrelevant data. The basic point they both make is that an effective government isn't a cruel one or has the potential to be less likely to cudgel large numbers of innocent people. No need to send the village to the gulag if one of them is the culprit.
libel and slander are defined as writing or saying _false_ things that damage a person's reputation or property. if the damaging statement is _true_ its not libel or slander.
if its a trial by jury then the verdict is whatever the jury renders. the ambiguity, however, leaves lots of room open for appeals, which is exactly whats going on in Terry Bollea v Gawker right now.
I'm not going to make a judgment about whether it crosses over into being unethical, but a rich man trying to shut down a news outlet because he doesn't like what they said about him at least raises questions.
A rich person acted out his retributive fantasies by paying a law team for years to trawl through everything Gawker put out in search of litigable offenses. That's unethical on the part of the lawyers, probably, and on the part of Thiel, certainly. He never had a chance to win any personal verdict, so he went nuclear. There's no way that won't have a chilling effect on other media companies who consider whether or not to cover the stupid shit that rich people do.
And it was cheap for him - around $10mm to bankrupt his mortal enemy. There's no way that other rich folks aren't going to do it as well, especially now that he's framing it as a philanthropic act.
Trade "rich person" for "powerful media outlet" and Gawker is the bully. And it's been cheap for Gawker over the years with their 40 million in revenue to throw any hapless victims to the wolves if they thought that it would sell advertising. And guess what it was cheap for them. How many people didn't have the money or resources to take Gawker on?
The question was about whether or not it was ethical for Thiel to do what he did. Saying that Gawker did something bad to other people does not mean Thiel has an obligation to do anything, nor does it say that he acted ethically to do what he did.
You make him sound like someone who is filing frivolous lawsuits. The Hogan case involves an outrageous invasion of privacy of extremely dubious newsworthiness, nothing at all like, say, outing a lesbian congresswoman who supports traditional marriage legislation. He's not going through looking for possible gotchas; these cases are pretty clear cut.
He didn't file a frivolous lawsuit. He decided to not file a frivolous lawsuit, and instead to fund every viable lawsuit he could purely so he could bankrupt a media company that had covered him very unfavourably in the past. He'll probably keep doing it, if more such cases pop up.
He isn't on Hulk Hogan's side. He's on his side, and he won. Making this about the particulars of Hogan's case is deliberately eliding the fact that Thiel didn't give a shit about Hogan's case other than that it could bankrupt Gawker.
If in fact there are other viable cases, in the absence of Thiel the injustice would then be that Gawker can behave badly indefinitely because most of the victims will not pay the necessary amount to litigate.
If Gawker hadn't published anything litigable, they wouldn't have had any problems. If there is a litigable claim, there should be at least the possibility that the person who is being litigated against has done something wrong. Who cares about the motives of the person exposing the wrongdoing as long as it's accurate?
1. You have a moral obligation to litigate moral wrongs, whether or not they happened to you. Since rich people have more money and hence more things are litigable to them, they have a moral obligation to litigate more things. In this view, Thiel obviously did the wrong thing: he avoided litigating moral wrongs for years while waiting for the right case to come up strictly about Gawker. He failed to act ethically, under this model.
2. It is morally permissible to litigate moral or even legal wrongs that were not committed to you. It being permissible means it's a supererogatory feature of your moral life, in that you don't have to do it. It goes beyond the call of duty to sue Gawker for what they did to Hogan. But without a moral obligation to do so, you can't say that it could ever override your other obligations to behave ethically. Retribution, which this clearly was, is not an obviously ethical motive that would mean we should wholesale excuse what Thiel did—even though it may have been a good act to punish Gawker for Hogan, it was morally wrong to use the legal system strictly for retribution.
3. It is your moral obligation to litigate all litigable acts. This is absurd, prima facie: all our money and time should go towards litigation? Nah.
In other words, yeah, the motives matter. Thiel went above and beyond the call of duty and acted unethically, in an especially egregious and self-serving way available only to billionaires, along the way.
Another way to look at it is this: It happened. For the most part, everyone is better off because it did. If that weren't the case, we would have done something to stop it.
"Moral obligations" are made-up. Obligated by whom? What happens if someone doesn't fulfill their moral obligation? Nothing, right? Maybe someone writes a comment on the Internet saying they should be ashamed, but that's pretty much it.
Feel free to pontificate all you like about the morality of it. That won't change the fact that it did happen and will happen again unless a force powerful enough to stop it chooses to do so.
Ultimately, the whole point of having a justice system is to sort out these questions. Anybody can sue anyone else for any reason. We depend on the courts to sort out the ones that are valid from the ones that are invalid. In this case, the courts deemed this a valid lawsuit. If you disagree with the validity of it or feel the methods by which the courts make these judgments is flawed, then that's one thing, but the rules of the system allow any lawsuit to be brought for any reason.
If the only way you can argue against them is to refer to some rules you made up, I agree.
In any event "retribution" is an overly simplistic way of looking at what Thiel did. It could also be interpreted as protecting future victims of Gawker.
Suppose someone stabs me, and I live. For whatever reason, they get away and continue to run around stabbing people. If at some point in the future, they attempt to stab someone else and I stop them, killing them in the process, is that killing in retribution or protection? Maybe both. It doesn't really matter so long as we can stop people from getting stabbed.
What I find funny about this example is that at first I thought the "it happened" argument was going to be used in defense of the person doing the stabbing. Which, of course, it could.
Whether anybody thinks people "should" or "shouldn't" get stabbed is irrelevant. People do get stabbed. When it becomes enough of a problem, other people do something to stop it.
Gawker went and made a powerful enemy for no good reason. Outing someone who didn't want to be outed helped no one. Thiel used the considerable means at his disposal to ruin Gawker in a way that didn't harm anyone other than the owners of Gawker. Since nobody else really benefited from Gawker's existence it's unsurprising that nobody else really cares if they stop existing.
If Gawker had been exposing powerful people doing something illegal or otherwise harmful instead of just being gay or having affairs, they would have had the justice system and the public on their side and they wouldn't have lost the lawsuit.
I think it boils down to a conflict of interest and hence Thiel shouldn't have been involved in the legal process at all. That's the unethical element about it (to me).
I think it's also about transparency.
Thiel should have been front and centre during the legal process and open about his involvement instead of manipulating from the background.
Now, Thiel has not only undermined his own reputation (would you want to deal with a man who, if you got on the wrong side of him, might use considerable economic might to bring you down?) and the reputation of the legal system (now perceived to be a football game for billionaires).
You can argue day and night whether or not this is ethical or unethical, or how important the original legal cases were. However, Thiels' approach failed the smell test (to me) and has done more overall harm than good in the cold light of day ... just so one man could have a "fuck you" moment in the sunshine.
Disclaimer: if half of the things written about Gawker are true, I'm obviously not in their camp. It's possible to criticize both for different reasons.
Freedom from speech isn't freedom from consequences. Gawker can publish what they like, and when they break laws against revenge porn they can be sued.
This is an important point. With the court verdict as it stands Hulk Hogan was right and Gawker was wrong. The fact that it took a connection to a billionaire for someone to defend their right to privacy is a sorry state of justice in America.
They didn't stop them from publishing... But there are, can and should be repercussions for some things that one may publish.
If it's news, it will circulate the likes of twitter/facebook regardless and be picked up by others.. that's how news works. Someone will always be the first. All of that said, there's also a consideration to be held for ethics and responsible disclosure in journalism.
In this instance a legal case with merit was funded, I don't see a problem with that, necessarily.
"The free press" is rather a grandiose title for a rag like Gawker.
If Gawker counts as part of "the free press" -- the people Americans trust with the privilege of mediating their access to much information -- then yes, "the press" deserves whatever it gets.
Unpopular and distasteful speech is the entire purpose of press freedom and free speech.
Keep in mind that while many people would agree with you that Gawker is scum, various communities take offense and find tasteless all sorts of other things.
No, it will be because a plutocrat decided to fund a lawsuit unrelated to his reason for disliking them (and apparently influenced the process of that lawsuit with the aim of destroying Gawker to the detriment of Bollea), and abused the inherent bias of our courts towards parties with disproportionate resources.
Bollea may well have had a valid case against Gawker, but we'll never know. The idea that a case with a side funded by a vengeful billionaire could be fairly decided in our court system is absurd.
The issue is that Bollea dropped a part of the lawsuit that would have allowed the award to be paid out by the insurer - that reduces both the likelihood and amount of money that Bollea will receive, on the face of it, acting in a manner contrary to his own best interest, and in Thiel, lawsuit financier's, stated interests.
>acting in a manner contrary to his own best interest
Hogan is a famous, well-liked millionaire[0] already. And he almost certainly doesn't like Gawker.
So maybe he thought, "I can give up some of these millions and these parasites will not publish another damned lie again". In return, he also gets the eternal gratitude of people who hate Gawker (all decent human beings).
Seems like his actions align quite well with his interests.
Yes, I can see the motivations of someone who confessed bankruptcy or near bankruptcy who initially sued Gawker for damages - got a very large award, and only after Thiel got involved decided to drop a part of the lawsuit that might help him actually receive all/some/any of the award - as not being worthy of any question at all.
Your own link says he is no longer a millionaire. He changed from financial motivations to moral superiority after the investment of someone who wants to destroy Gawker (not that Hogan might not also want that)... reducing your ability to receive damages doesn't seem to align to me as well as it does to you.
Eh, it's a difference of a few million, maybe tens of millions. A small price to pay to watch this pustulent sore on humanity's face collapse and burn as a result of your actions.
Gawker didn't lose this trial because they ran out of money to pay their lawyers, they lost because a jury of their peers found they were guilty as sin.
They lost because a billionaire, who didn't like them for reasons entirely independent of the merits of the case, spent time and resources canvassing for opportunities to punish Gawker.
As Thiel himself said, "even someone like Terry Bollea who is a millionaire and famous and a successful person didn’t quite have the resources to do this alone."
Thiel also said that, but for his involvement the plaintiffs would have accepted a pittance. The outcome is largely a consequence of an the intervention of an outside party, not merely the merits of the case itself.
Gawker is a company with $45 million in revenue. They have plenty of money to defend themselves from a single lawsuit. If anything, Thiel just leveled the playing field.
Well, in terms of resources, Thiel has more than Denton, who in turn has more than Bollea.
I think it's a moot point, since both Thiel and Denton have enough money that throwing more money at lawyers would do practically no good. Yes, people with more resources win more lawsuits, but there are diminishing returns.
> No, it will be because a plutocrat decided to fund a lawsuit unrelated to his reason for disliking them
It was directly related his reason for disliking them. In fact, it was practically the same reason.
> and apparently influenced the process of that lawsuit with the aim of destroying Gawker to the detriment of Bollea
How so? Bollea was already a millionaire; he didn't need the money, and he wasn't materially damaged in any case. He wasn't going after Gawker for the payout; he wanted to see them punished for what they did to him, and dissuaded from doing it to anyone else. This outcome serves his interests much better than a bit of extra money would.
The critique of Thiel is not about the particulars of this case. Say there was some absurd exculpatory event, like it comes out that Hogan paid Gawker to publish the video. It ultimately wouldn't matter: Thiel would continue to locate and fund lawsuits against Gawker.
The concern is that this is a generic strategy for destroying any media org you dislike. Simply locate and fund any and all lawsuits, forever. Any critical story could be libel. Any publishing of secrets could be an invasion of privacy. A weak case can be pumped up with enough money. Eventually the billionaire wins the war of attrition.
And yet the alternative is to allow vile publications like Gawker to continue to cause damage to the general public without anyone able to stand up to them.
It's also important to point out that Thiel is not manufacturing bogus cases to try and overwhelm a company with lawsuits. He's trying to find legitimate victims of Gawker and fund their lawsuits. These aren't frivolous claims, they're merely claims that the victims may not have been able to afford to file otherwise.
Yeah I'm with you on that angle. Dumping money onto lawyers to attack people you don't like costs them legal fees to simply defend themselves.
The post I was responding to was advocating apparently limitless free speech, though. Chilling effects SHOULD apply to certain things, and unapproved pornography of yourself maybe should be one of those?
Limitless speech but limited recourse isn't worth advocating, IMO.
This isn't entirely true. Freedom of speech describes the relationship between the government and the people, not between two people. Furthermore, the Supreme Court has decided that freedom of speech in the strictest sense only applies to political speech.
"Goebbels was in favor of free speech for views he liked. So was Stalin. If you're really in favor of free speech, then you're in favor of freedom of speech precisely for views you despise. Otherwise, you're not in favor of free speech."
Denton and the people in his employ have their right to free speech, and Hulk Hogan has the right to use the beautiful system of Anglosphere common law -- certainly the best legal system in the world -- to deal with Gawker's poison.
(Goebbels and Stalin is a bit too hyperbolic, I think. Maybe try and scale it down -- say, Joe McCarthy.)
so...no objection to any billionaire with a grudge starting a secret trust fund for anyone to use to to sue you?
I love liberty as much as the next guy, but libertarianism all too often seems to mean the liberty of the guy with money and power to mess with the little guy.
Seems a little weird that a self-professed libertarian like Thiel aligns with Trump, noted authoritarian who's not above calling for violence against those who disagree with him, wants to go after Jeff Bezos and Amazon because he doesn't like what the Washington Post says, calls the CNN control room to tell them what to cover, while at the same time threatening to cancel CNN's 'FCC license' and take them off the air.
Personally, if a boot is stomping on my face I'm not that concerned with whether it's a private boot or a public boot. I'm not cool with government telling the press what to print, and I'm not cool with large capital pools going on secret vendettas against media that doesn't do what they want, and making sure they get sued on any completely unrelated thing that comes up where they might be vulnerable.
I just imagine the scenario of Gawker being the outlet that leaked the "Fappening" and seeing everyone currently defending Gawker turn an about face. In reality, what they did to Hulk Hogan was more or less, the same, possibly worse than what several women in the Fappening went through.
Do people actually defend the Fappening? I mean, I expect they are happy it happened, but that they know, deep down, that it was wrong. Kind of like peeking at your neighbor undressing through the curtains or what not.
Gawker defended posting Hogan's sex tape even when a judge told them to take it down, AND also condemned people for the fappening. Hypocrisy at its finest.
As long as we're quoting someone with an obvious vested interest, how do you feel about what Gawker points to:
"Hillary Clinton’s secret email account, Bill Cosby’s history with women, the mayor of Toronto as a crack smoker, Tom Cruise’s role within Scientology, the N.F.L. cover-up of domestic abuse by players and just this month the hidden power of Facebook to determine the news you see.”
It's not so cut and dry, which is why people are rightfully worried about a billionaire's personal vendetta to destroy a press organization?
Just because they published things that have been good journalism allows them carte blanche to publish things that break the law and are morally reprehensible? I find this logic baffling.
I find the logic that freedom of speech only applies to journalism you agree with baffling.
It's straight out of the 21st century authoritarians playbook - nobody is dumb enough to admit that their actions are against the principles of freedom, but people are dumb enough to agree with those same actions when you simply redefine who those principles apply to.
It's the new-newspeak, see how Putin has as much power as any Soviet leader but with the veneer of democracy, popular support and individual freedom.
Just to be clear, the freedom of speech is not absolute. It _is_ possible to violate someone else's First Amendment rights while exercising your own, to the point where a judge or jury must decide who is at fault (if anyone) and why. The limits to free speech have been shaped over time by laws and by precedent. In this case, a jury found that Gawker went too far.
I was directly replying to the comment that "They have no moral high ground, noble principles, or higher purpose." Actually reading the context would make the logic much less baffling.
Okay, your argument then seems to be "They do have a moral high ground, noble principles, or higher purpose some of the time but the rest of the time they break the law". That's not much improvement, I would think.
the sex tape was reprehensible but outing? Aren't we like ten to twenty years past that point? Its not really different than the press publishing cheating stories these days.
Not actually debating the merits of outing a public figure, but regarding your timeline, this was 2007, or 9 years ago, so it's possible that no, we were not past "that point" at that point. However you are defining that point.
How many of these were things Gawker originally sourced and how many of them were things that they quoted a few paragraphs and added a snarky/self-righteous sentence or two to?
I thought I'd look those up to see who got the scoop.
Hillary Clinton’s secret email account: New York Times
Bill Cosby’s history with women: National Enquirer
The mayor of Toronto as a crack smoker: Gawker
Tom Cruise’s role within Scientology: Gawker
N.F.L. cover-up of domestic abuse: ESPN
Hidden power of Facebook to determine the news: Gawker
Isn't this the same argument that gets thrown around when people point out the long term precedent implications in having Apple write a backdoor for the FBI?
"You are defending a murdering terrorist!"
"No, I am standing for the security of our communications infrastructure and, by extension, our society"
Now:
"You are defending a criminal low-brow rag that cares nothing for violating someone's privacy in the name of profit!"
"No, I am questioning whether we want people secretly funding punitive lawsuits for their own ends, regardless of merit. I also think I personally would be fine with it if you remove 'secretly'."
Sometimes the means matter, even when you agree with the immediate ends. I respect Thiel a hell of a lot more than I respect Gawker, and yet I am not sure this is how we want to do things.
What is the alternative? If you can't afford to sue a company rightfully you don't get to? What is wrong with paying someone's legal fees, regardless of your motives? Are you going to make transfers of money illegal? He could've lost the case in the court of law and lost his money.
Perhaps not phrased well enough in my post, but as I said, my personal take is that - so long as the quality of access to justice can't be fully separated from wealth - third-party funding of lawsuits should be allowed, just not in secret. For an immediate fix: have parties disclose any third-parties funding their suits and any conflicts of interests they might have with the opposing side. Make the judge and jury aware of this and document it in the public proceedings of the suit.
That doesn't really make any sense, it would be more reasonable to say third-parties funding suits must disclose if they DO NOT have a conflict of interest. What, exactly, is the reportable harm in being bankrolled by a third party anyways? By definition the plaintiff already has a conflict of interest with the defendant, adding on another conflict with the defendant isn't going to change things. A case will be decided by two things: 1. The merit of the complaint, and 2. The availability of money to pursue the complaint (in no particular order). Either way, it's not up to defendant to decide whether or not the plaintiff is receiving poor legal advice due to a third party, it's up to that plaintiff. So what reasonable outcome would disclosures have, other than potentially taint a jury due to matters not of law or fact? If Satan himself had bankrolled Gawker for a case in which they were, by clear evidence of fact, innocent would that funding have any bearing?
The Bollea v Gawker case itself is already a counter-argument to your suggested fix.
What would have been different if it was known upfront Bollea had third party funding and was willing to use it? The facts of the dispute haven't changed, so the end result should not have changed.
The main effect is that Gawker may have changed their approach to defending/settling the case. Which is a good argument not to disclose how the applicants are funded.
Yes, and furthermore it is up to Gawker to decide how to structure themselves. If they break the law under the same entity they do legitimate journalism, they are taking the risk.
That just makes Gawker look worse. The rant in question was part of the sex tape, but they didn't include it in the original article - it was published later by Gawker as a direct result of him suing them over the sex tape in question. It looked remarkably like retaliation for him suing them over their publication of the sex tape.
The sex tape itself was widely published on the internet, but most publications responded to Hogan's lawyer's C&Ds. Gawker did not, but more importantly, they separately published the fact that an audio tape exists in which Hogan made blatantly racist remarks about the person dating his daughter, which caused sponsors and others to pull away from him. (Though they didn't publish the tape itself, as others did, perhaps ironically.)
This is what's considered to have caused the damage to his career, rather than the fact that he likes sleeping with his friend's wife.
If the news is about some asshole VC you know people here will find acceptable the most abhorrent shit. It's not ok for billionaires to sue to death the publications they don't like.
I absolutely despise Gawker. The stories they run and the stuff they do would normally mean that I would love for them to be run into the ground.
At the same time, they are the only independent online media outlet left in the world. Every other company that once prided itself on being "independent" from the large media network owned by ancient billionaires has now received at least hundreds of millions of dollars in investment from them.
Say what you will about the publishing of the tape (and I for one think it was a despicable action) it certainly showed Gawker's true editorial strength. They could do whatever the hell they wanted, publishing for the editorial integrity rather than to get pageviews.
The idea of every single large online media outlet being at least partially owned by a small group of media companies owned by billionaires is horrifying. BuzzFeed has a great and fascinating new editorial unit, but they have 200 million reasons not to publish anything that goes against the mainstream media.
Gawker is a horrible company, but I'm going to miss them.
[edit] Wow, this is really being run into the ground with downvotes. If you disagree, please don't hesitate to let me know why, as I'm genuinely curious. My email's in my profile if you'd prefer to contact me there. Cheers!
I don't know if I agree with "the only independent online media outlet left in the world."
Look, for example, at pando.com - given that Thiel is an investor there, their language about him ("unforgivable", "a tremendous hypocrite", "cowardly", etc.[1]) shows at least a degree of independence!
Are you implying that Gawker's actions in this case were a twisted form of "editorial integrity", and not page-view-seeking? That is hard for me to believe.
Not sure how you define "independent", but media will always be somewhat beholden to their benefactors (which today is advertisers). Gawker is not above this, see this story which impacted ad money (but was also extremely slimy). Interesting they have principles on a story topic if it hurts the $...
I should've clarified, I was referring to large media organizations. An independent media organization that has no viewers is not terribly useful. If you know of any independent online media organizations approaching the scale of Gawker, let me know, I'd love to hear about them.
The lack of good, independant media outlets is a problem, but this is not a good solution. I do not agree that the value of Gawker outweighs the value in punishing its behaviour - it's not the fault of Gawkers victims that there are so few independant media, and it should have been Gawker that took more care in preserving itself.
Actually there are many more, probably an order of magnitude more, who immediately side against VCs. Such reflexes make for poor discussion regardless of which way the leading bit is flipped.
Thiel is also apparently financing Shiva Ayyadurai's lawsuit against Gawker. He is the guy who claims to have invented email as a 14 year old. Both Techdirt[1] and Gawker[2] wrote about his nonsense claims, but Shiva and Thiel are suing Gawker.
The sex tape is a little more black and white as a moral argument, but i'd love to hear justifications for defending a man who is clearly so full of shit in a case that with Thiel's support he'll likely win.
A - I'm not sure anybody is wealthy enough to get Ayyadurai a win. Wealth puts more ammunition in your weapon but you know the gun has to be operable. Thiel was a lawyer, he'll know a loser case when he sees it.
B - Spreading rumours is what Gawker does best. They are fighting for their life here so we'll need to make doubly sure of sources. Spreading shit to distract is a time honored custom. Government, businesses and media do it all the time.
C - Nick Denton & Co remain cockmongling thundercunts.
Probably because Theil wants Gawker dead after they were the outlet that outed him as homosexual. I wouldn't necessarily blame him. Just tying the publication up in court and legal fees could sink it.
Gawker didn't out Peter Thiel. Peter Thiel outed Peter Thiel. It was the worst kept secret in San Francisco, and he had a public Friendster profile that made it pretty clear he was GAY GAY GAY.
The only thing that should be upsetting about this outcome is that it wouldn't have happened without clandestine backing by a billionaire. The execution of justice is not in a healthy state. Arguably Gawker would have not necessitated an intervention had the justice system been less broken.
The honest reason why some people are bellyaching about this is because they don't see Thiel/Hogan/Trump as members of their own political tribe. The rationales they come up with are retroactive justifications because they feel that they've taken a hit. Part of their political tribe - Gawker, lost out. Political tribe affiliation wins out over pragmaticism and logic. We all know very well that Gawker was a nest of Social Justice political advocates.
They ought to ask themselves if Thiel wasn't a Trump Delegate, was not wealthy but managed to accomplish the same thing, would they still have a problem with this. I am certain the answer is no. The only change I would have made personally is that I would have stayed clandestine but then again I'm not as familiar with SV's political context.
I am much much more disturbed by the funding activities of George Soros than Peter Thiel. Abuse of power by the rich can be a genuine problem, but this wasn't an example of that.
Finally. Amazing that I had to read through miles and miles of comments siding with either Thiel or Gawker to get to the real problem:
Why is it that an (already a millionaire) entertainer _needs_ to get a billionaire on his side just to try and get justice done? This is a totally crazy state-of-affairs.
Although Thiel was involved, I'm not sure it's clear just how much his financing mattered.
I do agree with you that there's too much "money=justice" in the United States though.
Part of the problem with this case I think is less politics, it is the people involved. I do not have high opinions of Hulk Hogan, and there's a certain irony that this case also round-about involves Bubba the Love Sponge, a radio shock jock that from my viewpoint is about as scummy and ethic-less as Gawker in his career.
What Gawker did was scummy though, and I have no problems with the outcome.
I haven't made up my mind on who is right, if there is even a right side to this situation. But I am wondering one thing:
For those who believe that Thiel's financial backing is unethical because it makes it unfair, how so? Doesn't that line of logic presume that the court system is completely ruled by money? Is that how the legal system works in America? Money wins?
edit: Not sure why I got downvoted. I'm trying to be sincere and express my disbelief. I really want to hear a well thought out answer cause I really want to understand the situation and why people just keep repeating that Thiel is being unethical.
This is complicated! Yes, America is very different to the rest of the western democracies, in that it's typical that the loser pays attorneys' fees in civil cases in other countries, but this is not true in the US. So you can bankrupt someone by filing many lawsuits against them, even if you lose them all, assuming you had more money than them to start with.
However! That is totally not what happened here. "Loser pays" would not help because Thiel/etc won the case, I think rightly so. A case can't be frivolous if you win a huge judgement.
So I agree with you that there doesn't seem to be anything dramatically concerning about this case, though I'd still argue that there's a gigantic "money wins" problem in the US due to lack of "loser pays" rules.
I support this 100%. Just because someone calls themselves, or could ever be claimed as, journalists, does not automatically give them a pass in ruining peoples lives by creating sensationalist stories which has the only purpose of drawing increased web traffic. Gawker should be taken to task over its behavior and I hope they are forced out of business.
I think the thing to be clear about it that this is not some high and mighty ethical challenge to Gawker or in defence of privacy (cough cough Palentir). This is petty revenge writ large by a billionaire.
If it was about principle why was he hiding his actions? This interview is a pure PR exercise because his involvement was revealed.
It all comes down to a simple point. You may not like Gawker. They’ve published
stories I would have been ashamed to publish. But if the extremely wealthy,
under a veil secrecy, can destroy publications they want to silence, that’s a
far bigger threat to freedom of the press than most of the things we commonly
worry about on that front. If this is the new weapon in the arsenal of the
super rich, few publications will have the resources or the death wish to
scrutinize them closely.
This is a poorly thought out argument. He isn't doing anything under-handed or illegal to destroy Gawker. He isn't fabricating evidence against them or paying off cops.
He's simply financing a non-spurious lawsuit, which the courts have decided was legitimate. This is exactly what I want the billionaires in our society doing.
He may be acting in his own self-interest, but it also happened to align with the public interest. And if the courts had decided against Hogan, it all would have been for nothing. There is no grand problem here. He isn't "destroying publications he wishes to silence", he's augmenting the resources of someone with a legitimate legal claim against the newspaper.
If you are putting forth the argument that merely financing a lawsuit is a corruption of the public trust, then we have much more serious problems with our legal system than Peter Thiel having it out for Gawker. Anyone should be able to fund any lawsuit that they want, and then the courts will decide if that lawsuit has merit. That's why we have courts in the first place.
I don't know enough about the case at hand to comment specifically, but arguing that it is always fair to use "augmenting the resources of someone with a legitimate legal claim" as a tactic is not uncontroversial in the general case. Keep in mind that selectively punishing common legal violations is a common censorship tactic in many places. Consider this case in Mexico:
"On 12 March 2015, two journalists from MVS, Daniel Lizárraga and Irving Huerta, were fired after they used the station's brand name without permission in a newly-created website known as MexicoLeaks, which leaked reports on government corruption" - https://en.wikipedia.org/wiki/Carmen_Aristegui#Second_firing...
The legal case, of course, focused on "used the station's brand name without permission". But the actual reason for their dismissal was "a newly-created website known as MexicoLeaks, which leaked reports on government corruption".
Now, I am not saying the Gawker case is or isn't appropriate, but the intent of the parties matters, if not legally, then morally. When you are using a lawsuit, not to redress a wrong, but to attack a rival, the fact that the letter of the law is on your side doesn't make your actions ethical. This is specially true for governments, but there is no reason why it might not true for individuals as well (wealthy or not).
> arguing that it is always fair to use "augmenting the resources of someone with a legitimate legal claim" as a tactic is not uncontroversial in the general case.
In which specific cases is it illegitimate? The only answer I've been able to come up with is "when you don't like the person or cause."
I mean, if anyone wants to condemn the general case, please remember that you'll be condemning the EFF, ACLU and many similar organizations.
He could not have done anything at all to them if the cases were not meritorious. Now, there is a serious problem wherein access to the courts is effectively gated by wealth, but I don't think anyone can seriously argue that Gawker was unable to afford lawyers.
One can, however, point to their violation of court orders, along with their admission in court that they would publish sex tapes for anyone over 4, as evidence that they have no one to blame but themselves for their loss in court.
> He could not have done anything at all to them if the cases were not meritorious.
That's not true at all. One jury verdict (before appeals have been heard) plus a bunch of nascent suits is no proof of eventual merit. It could be that every single one of those cases eventually ends up getting dismissed, or being awarded negligible verdicts. But because Gawker may not be able to afford a full defense, they could well be out of business.
Long-time financial journalist Felix Salmon points out the issues here:
You also write like somebody who has never been on the receiving end of a lawsuit. They are a painful multi-year distraction and expense even if you win. My mom was on the receiving end of a lawsuit after a business deal gone bad. Eventually she won on all counts, and after he had finished reading his verdict, the judge gave both the plaintiff and the plaintiff's lawyer a royal dressing down for wasting the court's time. But the stress was incredible for the whole family, and we still had to pay the defense bills. It was not cheap.
And in Gawker's case, defending themselves against $10m worth of lawyering could well take them at least $10m no matter the outcome of the cases. News is not a business rolling in money; publishers go out of business every day even without being forced to burn unlimited millions. I can and will seriously argue that Gawker will be unable to afford defense lawyers long before Thiel will be unable afford lawyers playing offense.
Have you watched any of the depositions or testimony in this trial? I feel like the lawyers and Denton were the only people from Gawker who were taking this case seriously. Time and time again the hostility and outright contempt coming from the Gawker side only served to undermine their case. AJ Daulerio specifically, but even his subordinates and Gawker management were trying to out draw the lawyers every time they were questioned. They did not speak plainly and they were evasive.
It's true that The Hulk had home field advantage here (and easily arguable that Gawker being from NYC hurt them even more than The Hulk being from Florida), but they did themselves no favors at all during the trial. It's like they gave up and sought to win in appeal.
Personally, I am definitely not interested in defending most of Gawker's behavior here. I think Denton is a heel, a reprobate, and frequently a fool.
What I do care about is that people recognize that using money to silence reporting, however lowbrow and however nettlesome, is a step on the road to oligarchy. The 1st Amendment is a cornerstone of our democracy. Thiel here isn't trying to litigate an issue of concern to him. His only goal is to destroy a publisher, regardless of the merits of plaintiffs' complaints.
Now there are plenty here who are fine with a little oligarchy, and some who would like quite a lot. If they want to openly argue for that, great. And plenty of people, me included, have contempt for Denton, and who will enjoy his eventual comeuppance. But as much as I'd like to see that, I don't want to see it come with a major chilling effect on our already-mostly-toothless tech press.
You're right that the lack of "loser pays" for legal fees in these cases is disturbing. But so far there's been precisely one case, and I subjectively claim (as have legal experts) that it raised important and non-frivolous legal questions that deserved to be answered, and my opinion is that the jury reached the correct verdict.
> But because Gawker may not be able to afford a full defense, they could well be out of business.
They had lawyers. They had their defense. They can appeal, but they have no one but themselves to blame for going to court and asserting the right to publish stolen sex tapes of anyone over 4... and for violating a court order.
Inasmuch as there are problems here, they're with the legal system in general, not this suit specifically.
Rather, it reminds me more of the McDonald's hot coffee thing, where if they had been reasonable, they wouldn't have been hit so hard.
> Inasmuch as there are problems here, they're with the legal system in general, not this suit specifically.
To me that's like saying, "Inasmuch as there are problems with this massive data breach, they're with computer security in general, not the thief in specific."
Sure, there's a broader problem. But that doesn't mean that people willing to take advantage of a problem aren't also a problem. When many factors contribute to a bad outcome, it's worth looking at every factor when trying to fix the problem.
If that's the case, then everyone who presents a legitimate claim in court is part of the problem. It's not like there's some alternative to the legal system he could've used to address his grievances. Moreover, opting out of using the legal system does nothing to improve matters for others.
This was not some meritless nuisance suit, as should be evident by the fact that he won.
The broader problem is when people do things like spam settlement offers for less than the cost of defense, or the fact that the legal system is so expensive to operate to begin with. But none of these can rightfully be blamed on Bolea, so your analogy is simply faulty. There's no "abuse" here to begin with: he had a valid legal claim and won on the merits in court.
It is telling that as much as you wax poetic about abusing the court system, you failed to acknowledge that Gawker is the one who violated a court order here. I mean, if winning a meritorious case is what you count as "abuse" of the legal system, exactly how do you rate that?
I don't have an issue with Bollea. I have an issue with Thiel.
Thiel did not have a legitimate claim in court, but he is still using his billions to destroy a news organization he does not like.
I should say again that I am not interested in defending Gawker here; I think Denton's an ass. I think Nazis are terrible too, but I think it's worth defending both their and Gawker's First Amendment rights.
Right, but you'd have to rule against Bolea, who was wronged, to get to Thiel. All Thiel did was help Bolea. So if Bolea did nothing wrong, then you have nothing left to accuse Thiel of. You may not like his motives, but he didn't actually do anything but help someone wronged seek justice.
Inasmuch as this creates a chilling effect to keep people from publishing stolen sex tapes... oh well.
Thiel is willing to fund an effectively infinite number of lawsuits, and he is willing to lose large sums of money doing so. To destroy Gawker, none of the lawsuits have to win in the long term. The particular merits of Bollea's case are a red herring.
Also, this is clearly wrong: "All Thiel did was help Bolea." [sic] Thiel clearly imposed conditions. The suit was specifically structured to exclude the insurance company, reducing Bollea's risk-adjusted odds of a payout.
Bollea also turned down settlement offers, presumably at Thiel's behest. That clearly suits Thiel, whose goal is not helping anybody, but destroying Gawker. It's not clear it was really in Bollea's best interests; there are reasons most of these cases get settled. Far more of us now know about Bollea's adultery than if this had been quietly settled, which increases the reputational harm that's supposedly part of Bollea's reason for suing. And Bollea has had to actually go through a trial, which increases the emotional suffering that again was a putative problem.
Thiel doesn't care here about helping people. Or even helping people who have been harmed by tabloid journalism. If he did, he would have structured it as something like the ACLU: transparent donations to a group of independent lawyers with a stated purpose, who then get to pick their own cases on the merits. What he cares about is destroying Gawker. Which is why he spent a decade secretly plotting and executing a series of lawsuits aimed to driving the company out of business.
Bolea is the only one who could make all those choices. Those are his rights, and if he chooses to (or not to) screw Gawker over with legal strategy, that's his decision. Neither you nor I can make that for him and unless he complains about it, the entire discussion is pure nonsense.
I have no reason to believe that Bolea couldn't have funded the lawsuit himself. Bolea has no obligation (and no reason) to do things in a way friendly to Gawker. I find it highly believable that he himself asked his lawyers to screw Gawker over even if it got him less cash. More money != more justice. And inasmuch as this puts a chilling effect on publications that spy on people's private sex life, I honestly don't have a problem. There's no news here. Just perverts who want to spy on a celebrity.
You can't just go out and manufacture lawsuits--at least, not without getting yourself in trouble in court when they're found bogus. Someone has to have some kind of case or they get laughed out of court. He might be willing to fund suits, but they won't go anywhere and at least some of the time one can recover reasonable costs and attorney's fees on victory.
So call me when he funds something clearly meritless. The funding has no bearing on the rightness or wrongness of what Gawker did, therefore it should not affect the case outcome.
So yes, the merits of the suit are relevant. Funding tons of bogus suits is clearly different from helping Gawker's victims seek justice. And so far, evidence points to the latter.
You don't seem to understand that Thiel has funded more than one lawsuit. Of course, you also don't seem to know how to spell Bollea's name, so maybe you haven't been following this all that closely.
But yes, meritless lawsuits pursued because of personal agendas are an actual threat to First Amendment rights. Which is why anti-SLAPP statues have become necessary, and why 28 states have passed them in recent decades. As a NY Supreme Court justice wrote about strategic use of meritless lawsuits: "Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined." Thiel has found a new twist, where he can assault public participation without actually being a plaintiff. But he poses a very similar threat.
And yes, of course I can complain. Thiel is creating a systemic distortion around publishing the same way, e.g., tobacco companies funded systemic distortions of science. That the individual scientists have a right to free speech does not mean that I can't complain about how they use it. Or complain vociferously about the tobacco companies' damage to science, no matter how much they mewl about "fairness" and "seeing both sides". As a citizen, it's my job to make sure our democracy keeps working.
It depends why you are supporting the third-party lawsuit (which I agree is hard to prove one way or the other in court) and whether or not you do so openly versus secretly. In the case of the EFF and ACLU, their goal is not to swamp government agencies with lawsuits to the point they close down, or to hurt them economically, their goal is usually either: a) to help someone redress a wrong where they actually care about the wrong or b) to set legal precedent towards a particular policy they support.
I would say there is absolutely no problem if Thiel is funding the lawsuit because he considers Gawker publishing Hogan's tape to be unethical and wants to help Hogan redress that wrong. Although I would perhaps have wanted that disclosed as part of the trial. On the other hand, if Thiel would have funded any lawsuit against Gawker that had a chance, regardless of the other party or the particulars of the case, with the objective of forcing Gawker to shutdown or in order to punish them, then it can be a problem. As another comment pointed out, the hard thing here is that you cannot always tell one from the other. Perhaps strong funding sources disclosure requirements represent a reasonable improvement?
> It depends why you are supporting the third-party lawsuit
Right, so the real problem here is simply that people don't like him. The motive is something that exists only in his head--people can, and will, invent motives consistent with whatever their opinion of a person is.
Insofar as there's an argument that lawsuit funding should be open, well, I submit that perhaps the laws on that should be changed if this is truly at issue.
"Dear members of the jury, please be aware that the accuser is partly supported by third-party X, who has conflicts of interest Y, Z and W with the accused." is all I am asking for.
> Right, so the real problem here is simply that people don't like him.
For the record, I am far more pro-Thiel than I am pro-Gawker, although I base my judgement only on their public reputations. I am actually more concerned about the general idea than the specific parties in this case, and I think the result of the suit is correct, I just wonder about the means and the precedent that you can use a third-party's legitimate complaint to launch a punitive lawsuit.
In what way would that knowledge aid the jury in coming to an impartial verdict? Peter Thiel had and has nothing to do with the case itself. The facts and merits of the actual case are unchanged by his involvement and as such this information is immaterial.
Usually people bring civil suits in order to get justice for some wrong that has been done to them, not to get paid for being an instrument in the revenge fantasy of a billionaire. I think the jury certainly has a vested interest in knowing if the case is of the first type or the second. Society most definitely does.
In this case it's the first. What those of us who are looking at this case with more long-term consequences in mind are worried about is the second.
> Usually people bring civil suits in order to get justice for some wrong that has been done to them
The jury can decide whether some wrong has been done based on the facts of the case itself. If some wrong has been done, that's true regardless of who footed the bill. If no wrong has been done, that's true regardless of who footed the bill.
Judging cases based on who we do and do not like is something our justice system has been set up to avoid.
It's not about who we do and do not like. Civil cases have a very, very low standard of proof (not really proof at all - 50% + 1 means you just need to hint suggestively that a thing happened and collect your cash) and can be brought for essentially any reason. They are prone to abuse and often used vindictively, or as harassment, or as a tool for leverage in negotiations, or because a person was found not guilty. If we do as you suggest then the justice system is just acting as yet another mechanism for the wealthy and powerful to enforce their will upon the poor and powerless.
That would tend to introduce biases in the case. Court cases are not supposed to be about the people, but the events that happened. Many aspects of the court system deliberately attempt to remove such information from jurors to avoid such biases.
That said, I tend to think it should be a public record outside of court at least.
The kind of situation you mention is more likely to happen in situations where the laws are so numerous, anyone who is an enemy of the government can be legally imprisoned for something.
And while the US certainly is in that situation, this is clearly not such a case, because Bollea v. Gakwer was not arguing some obscure legal esoterica.
> On 12 March 2015, two journalists from MVS, Daniel Lizárraga and Irving Huerta, were fired after they used the station's brand name without permission in a newly-created website known as MexicoLeaks, which leaked reports on government corruption
They were fired. What does that have to do with legal cases?
But what's the solution to this problem? Ban wealthy people from financing lawsuits? That's never going to happen. What about ban people with malicious intent from financing the lawsuits? You'll rarely be able to prove the intent.
Yes, that why I said "Ban wealthy people from financing lawsuits? That's never going to happen."
Reinstitution of maintenance/champerty laws will never politically happen. It means banning donations to the ACLU or EFF or NRA or union legal fund, etc. Good luck with that politically.
He is very much doing something under-handed to destroy Gawker.
Gawker owns insurance to decouple financial harm from existential harm in the case of lawsuits like these. The civil system expects that victims who are harmed will try to maximize expected payout in case of a suit. If Hulk's legal case is indeed robust, he should have included every possible harm in the suit to maximize his payout.
The decision to structure the suit in a way that excludes Gawker's insurance coverage is an under-handed technique which turns a civil suit into an indirect tactic to destroy Gawker. It is underhanded because, at the very least, it violates an expected principle of the civil suit system. This signals that the goal of the suit is not to compensate Hulk for damages, but to put Gawker out of business.
>It is underhanded because, at the very least, it violates an expected principle of the civil suit system. This signals that the goal of the suit is not to compensate Hulk for damages, but to put Gawker out of business.
I'm genuinely curious, where did you learn that the only goal of the civil suit system is to compensate the damaged party? It would seem odd to me that punitive damages would be a thing that exists, distinct from compensatory damages, if they're not meant to be a part of the system. I don't see how there was an "expected principle" of that at all.
>Punitive damages or exemplary damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. Although the purpose of punitive damages is not to compensate the plaintiff, the plaintiff will receive all or some portion of the punitive damage award.
Right, exactly - question is how aware of this was Hogan? If he was aware, it's still not great. If he wasn't, that raises significant questions about SLAPP from Thiel, if not malpractice from his lawyers (whose direction are they fallowing, their apparent client, or his financier?).
"Your Honor, the actions of Gawker caused emotional distress and irreparable damage to the earnings capability of my client, and thus we seek an award to compensate him for this loss."
"Your Honor, we are dropping this claim here, but keeping all the rest intact."
"You realize that this means the defendant will have little to no ability to compensate you for the damages you claimed and sought and stated caused you duress?"
"... Yes... Your Honor."
If you state it's about compensation for lost potential earnings, and such, and say you need to be made whole, then waive away a large part of your practical ability to be made whole, at what point does that become disingenuous?
I think the influence that money has on our judicial system is a big concern. The threat of frivolous legal action has a very real chilling effect on freedom of speech. The legal system in the US disproportionately favors the wealthy and this is a legitimate concern. I think that in this case Thiel is warranted here, but no I don't like that wealthy people get to sue people to get their way. The costs of litigation should be minimal and the outcome unbiased by money. However, that's not the case and it's a travesty. I don't think this is simply a case of hatred for the "extremely wealthy."
No one gave him the authority to control speech. He has money, but we didn't give him the authority to do this. I honestly hope you are wealthy and this viewpoint supports some sort of authoritarian self-interest. Or you're not American I guess.
He isn't only funding lawsuits - but is asking to be judged by the standard of a philanthropist who supports libertarian values, freedom of the press and justifies his actions against Gawker as so.
It's one thing to say that funding a lawsuit is fine, and another thing to say that its fine to target an organization to ensure that every grievance against them does not settle out of court and goes to trial.
My issue is that by selectively choosing what he does and does not finance, he is influencing things in his personal favour.
I would far prefer the bllionaires in our society financing a big pool of money that then indescriminately funds the 'little guy' against the big corporation, so that the bias of money is removed from our legal system. Instead, this current process of being able to selectively target lawsuits means that the rich can indeed influence things in a biased fashion via their money.
I'm all for Thiel to have it out with Gawker, but should that not be on his own valid legal claims? By funding this lawsuit in particular, he's negatively impacting other suits by omission.
Basically, if money can't be kept out of the legal system then the money shouldn't be able to selectively enter it either, because either result produces a bias of the optimal situation where two equally strong legal teams debate a case in front of an impartial judge on its merits.
The moral problem I see with this, is that actually pursuing a lawsuit is so inordinately expensive, that someone like Hulk Hogan, who presumably earned some cash in his life, can't pursue it on his own.
Yes. It is always ok to finance a lawsuit. The premise of our legal system is that optimal adversaries debating in front of an impartial judge produce the best possible outcome.
If Hogan wasn't able to finance the lawsuit on his own, that would be the perversion of justice. But if our court system operates as it should, and there is no indication to my knowledge that it has not in this case, then billionaires funding legal teams should only enhance the level of justice available to all.
If the above is not true, then that is a problem with the court system, not a problem with people funding each other's lawsuits.
Certainly, but a characteristic of SLAPP is the plaintiff hasn't got a solid case, their purpose is to drag legal procedures long enough to bankrupt their target.
That is not true. Our legal system views some lawsuits as themselves being illegitimate attempts to silence people by forcing them to defend against frivolous, meritless lawsuits (see SLAPP). It does not view lawsuits as SLAPP-worthy merely because based on who's paying the bill.
Spending lots of money on lawsuits has the effect of increasing the demand on lawyers (making them more expensive for other people) and courts (making them more slow for other cases).
The resources the justice system spent chasing Thiel's personal vendetta could have been used for cases other people think are more important. That's why other people complain about it.
If you are putting forth the argument that merely financing a lawsuit is a corruption of the public trust, then we have much more serious problems with our legal system than Peter Thiel having it out for Gawker
Larger crimes don't excuse smaller ones, which is also known as the Fallacy of Relative Privation. I'm also having trouble figuring out (or even learning) what public interest is served by this result? Does a rich guy shutting down a publication enter into it at all? I think it does.
The problem with this argument that this is asymmetric. Most ordinary people will not have problems like Peter Thiel had, since outing them has no entertainment value. This is sort of a rich-only problem. Most ordinary people have problems like being screwed by their health insurance (denied claims), bank, some other big company, etc. I had for example a case when my business accounts got suddenly frozen by Wells Fargo for "unauthorized access". They would not tell me who accessed them, what IP, any specifics. I had to renumber all 10 of my personal and business accounts (huge problem for a business with receivables and ETFs), and in the process they lost all transaction history which created a huge accounting burden. When I expressed concerns, they addressed me to their "legal department", that employs a couple of hundred lawyers full time. Would Peter Thiel fund this?
I'm certainly not rich or famous in any stretch of the imagination, yet Gawker felt inclined to personally slander me multiple times. So implying that only folks like Thiel have a reason in stopping the bullying that they do isn't accurate.
> But if the extremely wealthy, under a veil secrecy, can destroy publications they want to silence,
Is there some method of 'destruction' that isn't reported on here, other than Peter Thiel financing Hulk Hogan's lawsuit? I think you are going to be hard-pressed to find people that think Gawker should be able to publish a 'sex tape', ignore a court order to take it down, because it's 'journalism'.
They specifically dropped the part of the case that would allow an insurance payout. Typically, people who don't want to destroy an organization will prefer to get the more assured money from insurance.
Should Gawker be able to publish a 'sex tape', ignore a court order to take it down, then pay a slightly higher insurance premium which to them is just 'cost of doing business' at this point, just because they are 'journalists'?
Hogan is the only one who could approve that, as its arguably against his interests. So if you're going after someone for vengeance here, it should be him.
Man John is just a little dramatic sometimes. Financing a lawsuit which so far seems to be legitimate under US law is equated with destroying publications?
The fact that gawker is online after losing the trial pretty much illustrates the point.
Peter Thiel is not directly damaging Gawker with his money. He's doing so via the intermediary of the justice system, where for whatever reason money has relevance. Peter Thiel is just incidentally throwing his money in this direction, but that money has a matter in justice is not the doing of Peter Thiel.
> Peter Thiel is not directly damaging Gawker with his money. He's doing so via the intermediary of the justice system, where for whatever reason money has relevance. It is there that we should find danger, not that Peter Thiel circumstantially decided to send his wrath in the direction of Gawker.
I felt the same way reading this thread. I also thought about an h3h3 video I saw earlier today https://youtu.be/fEGVOysbC8w where they talk about fair use and how a lawsuit can cost you $100k in legal fees if you prevail.
The question to ask should be: should our legal system be a game of chicken? or a sick twisted game of poker where you can't call "show" but just keep raising stakes?
I hope we have not forgotten that the attorneys responsible for Aaron Schwartz's case are still in charge of things.
I am by no means endorsing what Mr Thiel is doing. I think it is in extremely poor taste (even though I hate gawker). I simply agree that our attention should be more focused towards fixing our broken "justice" system.
edit: no, the winner getting reimbursed for legal cost by the loser is not a fix
Gawker proudly published Hulk Hogan's sex tape (while shaming him for it), while also shaming websites for publishing J.Law's nudes. I can't see anything redeeming about such an inconsistency: http://imgur.com/gallery/CQ5qgvu
That seems to me a very retroactive justification. Thiel being gay was probably one of the worst kept "secrets" in the Valley. He had social media profile pictures of himself shirtless on a gay cruise, let's face it.
> But if the extremely wealthy, under a veil secrecy, can destroy publications they want to silence
for their illegal actions... maybe it's unfair that the companies that piss off a billionaire are more likely to be called on their illegal actions, but the solution is more focus on legal aid, not fewer legit lawsuits.
I am conflicted about this, and see merits on both sides of the argument on Thiel's actions. So I tried to draw an analogy:
Let's say that there is some patent troll that only extorts money from small startups, who don't have the resources to fight back. Some billionaire of today, who in his past career was harassed by this patent troll, decides (both for revenge and for the greater good in his opinion) that the patent troll should die and secretly starts backing startup lawsuits against the troll.
1/ Is this a fair analogy?
2/ Is the press "special" and hence we cannot use analogies from other industries?
3/ People who disagree with Thiel's actions, would you feel similarly against the billionaire above?
1) Not precisely. Suppose the "patent troll" in your example was a company that had some absurd, dubious patents and made a sizable chunk of their revenue from them, but was not a non-practicing entity, and actually produced other products that people generally liked. Beyond that, that they could prove that they licensed a lot of their patents--both valid and dubious--pretty reasonably. (In other words, assume things are more complex than "Everything Gawker Media produces is clearly indefensible.")
2) You can always use analogies from other industries, but you can also make a case that in the United States the press is something of a special case. It's the only private industry specifically given constitutional protection in the Bill of Rights. It's certainly worth asking--and potentially litigating--whether Gawker violated both Thiel's and Hogan's right to privacy, but we give the press more latitude than we do other industries for a reason.
3) In the example as you outlined it, where a "patent troll only extorts money from small startups," I wouldn't feel the same despite disagreeing with Thiel's actions in this case.
The difference, beyond what I've suggested above in (1) and (2), is one of precedence. People are focusing, understandably, on the specifics of this particular case. But we don't know wat other cases Thiel is funding against Gawker; we don't know what the merits are. And that's the whole thing: a billionaire unhappy with the way a media outlet has covered him doesn't need to find winnable libel and defamation suits against that outlet; he just needs to find ones good enough to get to trial and cost tens of millions of dollars to defend. If Thiel funded a half-dozen losing cases against Gawker, he might still bankrupt them.
And, again: precedent. What if instead of Peter Thiel this was Donald Trump? Hillary Clinton? George Soros? David Koch? What if the ultimate reason for the vendetta was because they brought out embarrassing secrets that were in the public interest?
While I understand why everyone is focusing on the "Gawker? Couldn't happen to a more deserving company, ha ha ha" aspect of all this, free speech cases don't always revolve around noble defenders with noble goals. As wary as I am of slippery slope arguments (use one once and you'll use them everywhere), "hey, this couldn't possibly happen to someone who's less of a jerk than Nick Denton" seems uncomfortably close to magic thinking.
It's quite bourgeois of Peter Thiel to concern himself with such petty things.
He should focus his ego, his money and his attention on more important matters.
Nobody really cares about him and his famous friends being offended by Gawker -
In fact, quite a lot of people enjoy reading that crap.
Since when is Mr Thiel's emotional comfort more important than the people's right
to information (albeit gossip)?
If I could be as wealthy as Peter Thiel, I wouldn't give a damn about what the media wrote about me. Maybe I would just quietly cry myself to sleep in my gold-plated bed inside my luxurious NYC penthouse.
Thiel's multiple cases against Gawker are a death knell for American journalism. To be clear, I don't like Gawker's approach to journalism, and I disagree with their decision to out Thiel and expose Hogan. If Gawker goes under, the world will not be a poorer place. But the PRECEDENT that Thiel is setting is deeply disturbing, and it will hurt US democracy. When any billionaire can sue any publication into bankruptcy anonymously over any story they ever wrote, all publications will eventually belong to another oligarch, because that is the only way they'll survive. And the stories that publications write are a reflection of their owners, which means the oligarchs will exert even more influence on the American mind than they already do. This will cast a chill on independent journalism, and limit the voices that we read. Thiel is right as an individual case, and horrible if you go one layer of abstraction above that.
An important reminder of exactly what conduct, on Gawker's part, people are defending. They have no moral high ground, noble principles, or higher purpose. They're scum, and it's pure karma that they're being destroyed by someone they outed.