1. The pressure point here was a court ruling declining to stay enforcement of the $140M judgment pending appeal. This left Gawker having to post a $50M bond in order to avoid enforcement proceedings by which its assets could have been seized and its business literally dismantled. Gawker may or may not ultimately prove to have a successful basis upon which to get this judgment reversed but, without a stay of enforcement, it had no way of staying alive until it could have the matter decided by the appellate courts. No stay, no hope.
2. The bankruptcy filing, then, forces Gawker to give up its business but gives a vehicle by which the parties in interest behind the company can get $100+M by which to continue the fight through appeal in hopes of getting the judgment reversed and presumably leaving them with some significant value to salvage from what is now a desperate situation.
3. Concerning the social policy question here, it has repeatedly been framed as whether it is proper for a super-wealthy individual to fund another party's litigation to get payback or for some other suspect reason and what implications this has on the news media. This is a proper question but it is framed too narrowly. The broader question is whether the law should permit any third-party funding of litigation where the funder has otherwise has no connection with the merits of the dispute. Historically, the answer to that question was an emphatic no. Indeed, that sort of activity was defined as a crime - specifically, the crime of "maintenance." The statutes defining this crime originated in England and dated back the 1200's and so could truly be called ancient of origin. Basically, the idea back then was that feudal lords should not be permitted to use their wealth to interfere with legal process and thereby to potentially corrupt. By the 1700's, William Blackstone summed up the nature of the offense (as part of his famous work summing up all of the English common law) by defining maintenance as "officious intermeddling in a suit that no way belongs to one" and called it an "offense against public justice, as it keeps alive strife and contention and perverts the remedial process of the law into an engine of oppression." In contrast to this long-established hostility toward the interfering use of wealth to influence the judicial process, modern attitudes (dating back at least 50 years) came to see more litigation as being good for society as it could be used as a tool to help correct inequities in society - hence the litigation explosion. Owing to this changed attitude, many erstwhile barriers to open-ended litigation came tumbling down and along with them came the near-universal repeal of the crime of maintenance (and the related offenses of "champerty" and "barratry"). With this repeal, it became open season for any wealthy person wanting to fund anybody else's litigation for whatever purpose suited him. If people have a problem with that, that is the issue that should be addressed and not a narrow issue involving added protections for the press only. Litigation abuse is litigation abuse; if it is bad for the press, it is bad as well for other victims in society.
4. To illustrate how this sort of intermeddling tainted the processes in this case: lawyers routinely will add claims that will bring in insurance defense coverage to ensure that they can collect on any judgment but here the lawyers were directed to exclude a claim that would have allowed Gawker to bring in its insurer to cover costs of defense and potentially any judgment; parties also routinely will make serious efforts to settle any high-stakes litigation at various critical points but here it was all scorched-earth all the way to the bitter end with no prospect of the parties achieving a reasonable settlement along the way.
I don't think too many people will shed a tear over the demise of Gawker but the public policy issue here is an important one. Can the modern mindset - so enamored with the supposed benefits of expanding redress through litigation - ever go back to reinstating laws forbidding "maintenance"? I doubt it. But perhaps the time is right for a debate and reconsideration. I think we are otherwise left a little unsettled over what the promiscuous scattering of third-party money throughout the courts might do. Whatever it is, it likely is not good.
| litigation where the funder has otherwise has no connection with the merits of the dispute.
I think those organizations and other social policy groups can demonstrate that they have a vested interest in the merits of the dispute. In fact that litmus test may be overbroad, allowing any corporation for whom the case is useful to their business strategy to claim they have a vested interest in the case...
He does have a law degree.
One of those liberties is the right to a free press - "free" specifically meaning "has the right to annoy rich and powerful people."
Thiel promotes Thiel.
It's a clear difference in scope.
IMO a culture that can't tolerate having a court jester like Gawker on the premises isn't a healthy one.
Sometimes a jester can go too far, and a kick in the ass is deserved.
But trying to nuke the jester from orbit is an act more common in totalitarian regimes than in those that value personal freedoms.
Surely ACLU lawyers (many of whom are minorities) have been wronged by the government and that contributes to their desire to help others who have had similar treatment.
This is an interesting one. If the answer is "yes", then donating to the ACLU should itself be criminalized.
I agree with the first sentence, but not with the second. There should never be a situation in which you can use the legal process to extract revenge over a matter which has not itself been subject to the legal process. This would allow Thiel to seek revenge for almost anything.
However, Thiel has the legitimate justification of believing that Gawker's behavior in the Hogan situation was simply abhorrent, which is something that I and many other observers also believe, and also the legitimate justification of believing that Gawker abuses it's access to funds and lawyers to avoid the consequences of being sued for such behavior, both of which are reasons to fund a suit against them. Particularly for the latter reason it doesn't strike me as unfair to fund a tort by an individual against a corporation which has demonstrated every intention of avoiding justice.
In all these cases, powerful people with interest in a case decided to assist people who did have standing. Do you oppose that practice in all these cases?
What Peter Thiel did was secretly fund a lawsuit by someone else in order to exact revenge (or depending on your point of view, to provide a service to society).
I think there is a pretty big difference between the two groups.
Because if your framework becomes "non-profit that publicly reports spending is okay," what's to stop a billionaire from donating millions to their own non-profit, governed by a bunch of their "elected" friends (membership fee = $1M)? Now you can expect a bunch of lawsuits over that question!
As with campaign finance, this has two benefits: it avoids trying to enumerate all of the ways someone might try to game the system and it addresses free speech concerns by simply requiring attribution in an area where there's a strong public interest.
While I wholeheartedly support those organizations, your point highlights why I think making 'maintainence' a crime wouldn't pose a problem for those looking to interfere - it would just slow them down. All they'd have to do is come up with a good reason for making it their business (I'm sure even Thiel could have gotten away with a "defense of privacy" argument if he hadn't acknowledged having a vendetta with Gawker) or otherwise 'launder' their money through donations to charities or benefactors who have strong enough ties to whatever policy it is to support litigation.
We've all seen how well money works "for the people" when allowed in large sums through superPACs in campaign financing, I agree with the OC in that this is a major issue which we shouldn't let be clouded by specific opinions of Hogan or Gawker.
(Which of course happens all the time, but still...)
Besides, the government already has sovereign immunity to lawsuits unless it chooses to allow itself to be sued. So if anything your first sentence is backward.
I'm fine with the concept of 'maintenance' but at the same time I feel that there is such a basic unfairness in the various implementations of our systems of justice that some re-balancing is often the only way in which one of the parties stands a chance of winning or losing the case on its merits.
Especially when the other party is a corporation or the government I have no bad feelings about helping to fund the lawsuit (especially a defense).
People forget that proper civil litigation is a public good (in the economic sense). Ensuring that (civil) wrongdoers pay for their actions benefits everyone by making it less likely they will be a victim of such acts, and more likely that transgressors will offer a quick settlement rather than using the courts in the first place.
 While it's impossible to truly shield off such influence, we can at least go for some standard like, "it should take an exponential investment to produce a linear impact on the award".
I'm not sure how we would manage that but, assuming we could, doesn't this cut both ways? As long as money is in the equation, then don't all parties still benefit by having as much money as possible?
Under that condition, each doubling of the amount spent on influencing the outcome (via payments expert witnesses, bribes to the judge, discovery, etc) would only yield the same gain in revenues from the court. So for example, if you start with $1000, then doubling to $2000 might yield $1500, doubling to $2000 with only yield $1500 more on top of that, and so on.
(I agree an exponential difference might be two hard; I'd be happy for even a quadratic difference!)
Do you have any scientific research backing this? Or just anecdotal evidence?
In an adversarial system your chances depend on the amount of valid legal process-effort you exert. If you acknowledge that this effort is correlated with financing, even a little, then you admit there is a vulnerability.
A more reasonable question would be if they have a reason to assume that the variable has an oversized impact on the process.
This is a fair point, but the existence of such a vulnerability is unquestionable. However, SilasX seemed to be implying that this is a significant vulnerability, which is a claim that certainly deserves some evidence to back it up.
>A more reasonable question would be if they have a reason to assume that the variable has an oversized impact on the process.
That's exactly what I was asking about, SilasX specifically said "so vulnerable" as opposed to just "vulnerable". That seems to imply such an oversized impact.
Beyond that: the "merits" of a case is unknowable. Courts don't have the "merits" in front of them. They have the evidence and arguments developed by the parties. Consider the Gawker case: did Gawker publish the video recklessly or maliciously? The "yes" or "no" answer doesn't exist in reality. It's an abstraction. The only thing that exists in reality is, e.g., various emails and communications and meetings that can lead to one conclusion or the other.
Developing that evidence--particularly within the context of a process where everyone has a strong incentive to lie and fabricate--is what makes litigation expensive. But it takes a certain amount of money to develop the evidence. Spending a lot more money than that isn't going to get you a much better result.
And that's precisely the point, if you don't have that money (and this can be quite a lot) then you're out of luck. The linked case is about a celebrity worth quite a bit of money and still it wasn't enough to get the case decided in his favor, it needed yet another - bigger - millionaire / billionaire to step in to sway the case. I don't see what could prove this more conclusively, a 'certain amount of money' can be more than what most mortals have access to.
It it wasn't for Thiel to have an axe to grind with Gawker this would have not happened.
And that's just civil proceedings, in criminal proceedings the odds are stacked even worse against a defendant without funds.
I'm just cautioning extrapolating from that, to the conclusion that the party with more money wins the lawsuit. That's only true up to a certain baseline.
> And that's just civil proceedings, in criminal proceedings the odds are stacked even worse against a defendant without funds.
Maybe. The DOJ's conviction rate isn't appreciably different between divisions, including white collar crime: https://www.justice.gov/sites/default/files/usao/legacy/2011... (all around 90%).
Conviction rate doesn't tell you how much the deck is stacked against defendants, it tells you how good the prosecuting agency is at assessing its ability to secure a conviction before initiating formal charges.
And that's true enough for me.
> Maybe. The DOJ's conviction rate isn't appreciably different between divisions, including white collar crime:
> (all around 90%).
Interesting report, thank you for the link. I think 90% in and of itself is high enough to warrant scrutiny, any higher and it would be grounds for an investigation. Japan (99%) and China (98%) appear to be significantly higher still but many other first world countries are significantly below that (the UK for instance at 74%).
Surprising too that in the 1970's the US was at 72%, 18% more convictions in such a short period should be another cause for worry, either in the past people were more likely to walk when guilty, or in the present a lot of people that aren't guilty end up in jail. (Or, alternatively, a lot more stuff that is easy to prosecute got added to the list of offenses but that would have to be an immense number to skew the totals from 72% to 90%.)
But it's not true as a general proposition, nor are you excluding an irrelevant class of litigation. Much (most?) commercial litigation is between well-funded parties (e.g. a big company and it's insurer).
> Interesting report, thank you for the link. I think 90% in and of itself is high enough to warrant scrutiny
The government should only bring a lawsuit if it looks at the evidence and decides it can prove guilt beyond a reasonable doubt. Generally, that's in the 95% certainty range. A jury should only convict if it comes to the same conclusion. Thus, it should be quite unusual for the jury to acquit. If the jury is acquitting in 25% of cases, that means the government is bringing lots of prosecutions it shouldn't be bringing.
It's true that over the last 30 years, the government has gotten much more conservative about bringing prosecutions. That's a good thing. Many might disagree with the law underlying, say, the Silk Road case, but it's hard to say the government didn't base that prosecution on a wealth of evidence.
There is a huge fallacy underlying your numbers. 90% is about right if the number of false convictions is acceptably low. 90% is a terrible number if it should contain a large number of false convictions.
The 'establishing of facts beyond reasonable doubt' only happens for cases that actually go to court, in the light of the above mentioned asymmetry in resources you're going to end up with a lot of cases that will never make it that far. Some will claim this is efficiency but I don't really feel comfortable with an 'efficient' process that places large numbers of people in lock-up. The chances of getting it wrong are fairly high in a system that aims for a certain percentage of convictions, after all there are two solutions to getting that percentage, the first is to ensure that only the 'good' cases make it through the system, the other is to railroad the bad ones through as well and make sure that a conviction is secured anyway.
In fact, one could argue the only way to look at it is in a precision/recall manner, how many cases that were known to be solid turned out to be false positives and how many cases that were dropped were the false negatives (cases that should have been won but were not, for instance because the defendant was wealthy enough that they could afford a large defense).
This is of course all only relevant if you actually care about justice rather than about convicting as large a number of people possible once they enter the judicial system, and I'm not at all sure that that is the goal of the systems in place in the various countries. Too many people depend for their livelihood on large numbers of people getting convicted.
Sure. But you implied above that a 90% conviction rate warrants more scrutiny than a 75% conviction rate. To the contrary, a 90% conviction rate may be indicative of a fair process. A 75% conviction rate is definitely indicative of an unfair process.
Obviously you still need to scrutinize the rate of false convictions. But that's true regardless of the conviction rate. Indeed, a low conviction rate suggests that the government is bringing marginal cases and trying to make things "stick" which increases the risk of false convictions.
> Some will claim this is efficiency but I don't really feel comfortable with an 'efficient' process that places large numbers of people in lock-up.
The U.S. has a large number of people in prison because it imposes long prison sentences for some very common and easy-to-prove things: drug sales, auto theft, assault, firearms. If you take a random sampling of federal convictions, you'll see that almost always there is a laundry list of physical evidence of guilt. The government doesn't bring marginal cases.
The solution to the prison problem is not to force all these clear-cut cases to go to trial. It's to stop imposing 20-year prison sentences for people selling a few pills of Oxycontin, or stop putting felons back in prison for 10 years just for having a gun.
I'm not sure that this is actually true. Instead, I see a much greater use of plea bargains, especially of the "accept this deal or we will throw every possible charge at you" type. Given the sheer number of laws, this can lead to life-ending penalties for seemingly minor crimes.
But that's not what happened. The case was "decided in his favor" a long time ago when Gawker offered to settle for a sum of money that would far exceed anything he could have expected in his wildest dreams in any other country other than the US. Thiel intervened not to win Bollea more money (indeed, he may end up getting less), but to pay Bollea off so that the case would be about hurting Gawker more than benefiting Bollea, which is what Thiel wanted. I understand that they even changed the lawsuit so that the insurance wouldn't cover the payoff to Bollea -- getting him less money -- only so that Thiel could hurt Gawker further.
Do you have any evidence of this at all?
Be careful, you probably shouldn't just make shit up about someone and then pretend it is true.
AIUI he was pretty much insolvent at the time due to an expensive divorce.
I don't know what the fix is, but the current system is near-extortionate (an attorney made this observation to me).
If party A makes a claim against party B, but party B cannot afford counsel, then party B would likely be required to acquiesce to those claims. The standard to be considered frivolous is woefully high. And, even making that case generally requires counsel.
This gives firms and individuals with the resources to access the legal system tremendous advantages over those who do not have same.
I disagree. Division of labor and specialization is almost always economically efficient. Litigation finance is just the embodiment of that concept applied to litigation.
Traditionally, litigation has been financed either by: (1) the plaintiff; or (2) the plaintiff's lawyer (in the form of a contingency arrangement). Neither of those parties are the right ones to valuate or finance lawsuits. They don't have a sufficiently cross-sectional perspective of the industry. Lawyers are in fact notoriously bad at valuing cases.
Litigation funders can become experts at valuing good lawsuits, and financing lawsuits so that entities don't have to divert their own capital for those purposes.
Note also: in a system like ours that relies on lawsuits to protect property and other rights, forgone meritorious lawsuits are a source of economic inefficiency. Gawker is a great case in point. If a judgment against Gawker makes it go under, that means the harm caused by Gawker's existence exceeded the value created thereby. If Gawker didn't get sued simply because Hogan lacked the liquidity to bring the suit, that would've been a net loss to the economy--an entity sticking around that literally does more harm than good.
I'd be more comfortable with your economic-efficiency argument if there were more economic certainty in the process by which damages awards are arrived at --- especially in situations such as the Gawker case. I didn't see or hear any of the damages evidence, but it seems strange that the jurors concluded that Hulk Hogan really suffered $115 million in damages. As I know you're aware, it's not uncommon for lay jurors to do a version of baseball arbitration, choosing the analysis of one side's damages expert over that of the other --- and of course the opinion of neither expert is entirely unmotivated.
Justice is not a resource to be allocated, and in this case all we're discovering the price of is a billionaire's bruised ego.
For example, one might view lawsuits against polluters as a matter of punishing companies that do harmful things to the environment. I'd argue that's a pretty fuzzy and irrational basis for environmental law. A more rigorous approach is to view environmental lawsuits as forcing polluters to internalize their negative externalities: http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=....
In that context, meritorious lawsuits that don't get brought are inefficient. They represent a polluter not forced to internalize its externalities, or a business creating risk not forced to bear the costs of that risk, or a business creating harm not forced to compensate the injured. That distorts incentives and leads to more than an efficient amount of harmful activities.
Keep your eyes out in the next 10-20 on the wisdom of easy and prolific debt because we're so much smarter than our ancestors who viewed it with suspicion, for instance. We've already been served some wake up calls but as near as I can tell we've hit the "snooze" button.
People use the courts to get payback all the time, in a variety of ways. It's not about what's right, its about what's allowed. People with a lot of money have a big advantage in that regard. If we try to change that, we'll have to redo a lot of the legal system.
Thiel can do whatever he wants with his money, including using it on legal cases. The key rule that Gawker broke here was "Don't make powerful enemies"
It is right in front of your nose. Whatever your views of Gawker, Thiel destroyed a news company out of spite. That seems like maybe a little bit of a problem.
> It's not about what's right, its about what's allowed. People with a lot of money have a big advantage in that regard. If we try to change that, we'll have to redo a lot of the legal system.
Or, you know, revert to making maintenance/champerty illegal, which appeared to work for the intended purpose for rather longer than the US has existed.
> The key rule that Gawker broke here was "Don't make powerful enemies"
In a thread discussing what can be done about the rich hijacking the justice system to destroy a news company out of spite, you (apparently normatively) (1) don't see the harm and then (2) essentially declare "Don't talk back to your betters". Please correctly where I'm wrong, but it sounds like you don't see any problem at all with the rich buying vengeance through the courts.
 Yes, money will always have an advantage. That doesn't mean throw your hands in the air and walk away.
It seems like you're discussing a situation other than this case, but I can't figure out what it is. The court ruled that Gawker unlawfully invaded someone's privacy. They are clearly in the wrong no matter how you look at it. This isn't a case of rich people abusing the court system or using money to gain an unfair advantage. This is justice being done in the service of revenge, which is the usual way in which justice gets done.
I'm going to stick by the idea that people can use their money however they want within the boundaries of the law. The idea of not making powerful enemies is sound because there are countless ways that someone can use resources to make life difficult for someone else. It would be impossible to outlaw all of them, and you wouldn't want that even if it could be done.
I'd still love to hear how Thiel using his money to bring about a just outcome does harm to the integrity of the legal system.
Thiel enabled something which should have destroyed them but was unlikely to (because of one of the stupidest reasons to not uphold the law, "because one side doesn't have the funds") to actually destroy them.
Gawker pretty much brought it upon themselves expecting to get away with it (see their disorganized deposition where one of the plaintiffs was actually laughing at questions).
While I'm wary of letting money have any more influence over the courts, this could be seen as a way for it to actually have less influence - the situation of "A is right but can't fund their case."
The worst you could do with this situation with billions to spare would be to try and fund a side "in the wrong" to help someone get away with something, but if the case against them is that strong all the funded legal maneuvering shouldn't allow them to 'get away clean'... Though perhaps 'shouldn't' should be the operative word there.
... Did he? Cause it seems like the court did that. Everyone's talking as if judges are some passive entity that have no option but to allow money to dictate outcomes.
I've seen news companies destroy hundreds of people and companies to gain readership and/or for other more political motives. Seems fair that they should have the table turned on them from time to time no?
Perhaps the remaining media companies will now be more diligent about who and what they report on.
I see a problem with a potential result where justice would not have been served simply because one party run out of funds to pay the lawyers. That is a problem with a legal system.
The problem is that Thiel's intervention is just a one-off "workaround" that fixed one case but doesn't help other similar cases.
"people with a lot of money have a big advantage in that regard" and as far as I understand, it's the exact reason why Gawker had gotten away with similar offenses multiple times already. A solution that aims to improve justice needs to ensure that a low-funded claimant can reasonably win against a multi-million company like Gawker - forbidding maintenance isn't a fix for that; it still leaves open the much, much more popular scenario where injustice is served simply because you can't afford to someone who is rich enough on their own.
This is a case that had an even playing field - before that it was a case of the rich (namely, Gawker) buying immunity through the courts.
Thiel didn't destroy Gawker, Gawker destroyed Gawker. They willfully broke the law. Even put up a self-congratulatory article about how they'd been told to take it down and weren't going to.
Woah, let's not get carried away here :)
What's wrong with Thiel destroying things out of spite? Should he not be allowed to retaliate if someone attacks him? Why? Should anyone be allowed to retaliate when attacked?
Is the only problem here that Thiel used the courts to accomplish this, rather than other means?
We appear to have isolated our point of disagreement. I'm afraid I can only say, if you can't answer this for yourself, I can't answer it for you.
Gawker's reputation and missteps aside, this is not a rule any respectable journalism organization would agree with.
If you're going to cross that line, you'd better do so carefully. At the very least don't antagonize someone who can rightfully sue you into oblivion.
This seems like a terrible basis for a justice system. Do you not see the harm this could lead to?
I'm happy about the outcome.
I want the Nick Dentons of the world to lie awake at night worrying the people they've ruined might get access to enough money to mount a successful lawsuit.
Having said that, I'll also say the courts should be more willing to award fees to defendants when lawsuits are groundless or mostly so. But that needs to be a determination based on the circumstances of the case and not who funds it.
That's a big if, that is verifiably false.
E.g. why have lawyers of higher skills available based on their asking fees? That's like openly acknowledging that people with more money get better leverage on the law and have better representation.
If it was to me, I'd take that aspect out of the legal system. We might value such competition in business, but I sure as hell don't want it there -- it's what ensures millionaires get out with a slap on the wrist for dire offenses and poor people and minorities end up with disproportionate sentences.
Of course this would never fly (too much money to be lost), but e.g. making lawyer assignment random for everybody, or having the state demand a total specific cap on what they can charge that's the same for everybody.
In other words: stop allowing legal representation to be a market where more money buy you better services.
I'd argue that maybe we need to come up with a way to go even further. This is only interesting because the idea of actually materially harming a corporation through litigation is so foreign these days. That and for some reason a few employees of some major news papers have allowed gawker to be lumped in with their own publications, giving "maintenance" to the idea that this is a first amendment issue. Do you have anything to substantiate that it's "not good" to allow third-party money in the courts? I'm sure there are things we haven't thought of but can it be worse than big money in politics? There are still judges that run their courts, right? They still have a roll here.
First, we are left saying that this outcome would have been fine if Hulk had the money to do scorched earth. Second, we directly admit that the outcome of this case is the result of the money spent. Both of these, especially when taken together, are a death blow to any notion of justice in regards to law. And I don't even see this as a question, but a reality that we seem unable to admit to ourselves.
A state monopoly on legal services where lawyers are assigned by lot? A system of "loser pays legal costs" where lawyers bid for likely wins/profitable cases?
It is made all the harder by the "American Association for Justice", a lobbying group made up of trial lawyers. They really don't want any sort of tort reform, which might be able to fix this problem.
Can you imagine the outcry if we had a system where lawyers were randomly assigned to cases, and paid according to some fixed schedule (eg seniority)?
Yet wouldn't you want a world like that? Where whenever some matter arose, it wouldn't matter whether you were rich or poor, you would get some random lawyer, as would your opponent?
As to whether better lawyers get paid more, I need evidence to believe that. I'm no expert, but it seems to me the quality of legal work has a lot to do with how much time is available to do it, which pretty much depends on budget.
Whenever I've dealt with a certain class of (suited) professional, I've never gotten the sense that one guy would come up with something that another guy wouldn't, given the time. If there was doubt on an issue (typically tax related) both accountants would say so, and suggest spending time on research. If there was something aggressive (again tax deals) evert accountant seemed to think so. Same with lawyers, I've never come across some line of reasoning that seemed like it wouldn't have been uncovered by every lawyer, given enough time. And also they tend to defer to specialty experts whenever they are at the end of their knowledge, so it all feels pretty standard.
If you'd like an alternative, you could consider inquisitorial law - but barring a revolution, that will be a pipe dream.
The real question that I guess escapes most Americans (yet more Europeans notice it) is whether money should be able to influence the judgement at all.
Wealthy people shouldn't be privileged in court.
Unfortunately, I have no idea how to make this happen.
Edit: seems like Lawtonfogle and spott mentioned the same thing before me.
I was taught to do this in political classes (based on James Madison's discussion of factions), and it can have such a huge impact on motives and attitudes. For example, should government track all Muslims? What if in 10 years the government started tracking all Christians? Still think that tracking policy is a good idea??
If your assumptions are that Bollea's was a legitimate victim of Gawker's actions, and that we would need to protect the EFF from a similar outcome, it seems to be that what you're saying is that we need to prevent victims from winning court cases because the perpetrators who harmed them might be otherwise good people.
It certainly works as an argument but it's scary it even has to come up this way. It's basically having to explain to someone else: "You know, muslims are people too".
"It could happen to you" is a symptom of failed education of the recipient. It's scary some people today still lack basic empathy, the basic considerations that "all people are equal and deserve the same respect as you owe yourself".
Not to detract from your point, of course. It's more understandable that someone wouldn't immediately connect the dots between "Bad thing happening to bad entity" and "Bad thing could also happen to good entity". Although I'd consider it a similar failure of education as well.
If it's true that the appeals court would be likely to severely reduce the damage amount, if not overrule the verdict itself, is it reasonable to claim that the decision not to stay enforcement is by itself unjust, in that it effectively robs the defendant of a chance to exhaust the judicial process?
Where's the justice in that?
If money can influence litigation, isn't that a bigger problem than a third party funding some lawsuit for whatever reason?
And Thiel certainly has an issue with Gawker, having been victimized in exactly the same way (revealing of otherwise personal information unrelated to the nature of their business or other public persona), so can he show connection with the merits as another victim?
Other replies to your comment have pointed out that the actions of the EFF and so on are generally against the government rather than private parties. But I wonder how re-instating "maintenance" would affect issues like consortiums funding defences against patent trolls.
If we look at
there seem to be 296 matters mentioned (which isn't exactly all of EFF's casework for various reasons; for example, some cases may predate the existence of that page, some matters mentioned there may encompass multiple court cases, and some cases may be under seal).
It would take a while to classify all of them, and it's not a good idea to just take a sample of the first n cases in alphabetical order (for example, because criminal cases are captioned U.S. v. Somebody).
I did a random sort of the cases there and went through the first 50 of them, and I classified them as 18 government, 30 private, and 2 other (not clearly referring to an individual court case). It's also interesting to note that in two of the cases in my sample, EFF was defending (or not opposing) the government's position.
To summarize, I think EFF's legal work more often involves private parties than the government, at least by number of court cases (not necessarily by number of attorney hours or pages of briefing!). The same might not be true of ACLU's work.
Here in FL where the case went to trial we have the proposal for settlement rule and an Offer of Judgment Statute.
Obviously Gawker couldn't have forced a settlement but if they really wanted to settle it, Gawker could have potentially recouped their legal fees for the continued litigation. Alternatively, they could have simply accepted liability/default judgment and moved to the damages phase, saving themselves untold legal fees in defending the case. Of course it is easy to Monday morning quarterback these things after you have availed yourself to all potential legal defenses and still not happy with the result.
Are you seriously trying to argue that contingency fee arrangements, or lawsuits funded by groups such as EFF, ACLU, SPLC, ACLU etc etc etc are somehow litigation abuse?
The real underlying issue is that it shouldn't take millions of dollars to litigate a claim against a big corp like Gawker. Why in general should legal fees be so large that someone with any kind of injury has to give 40% of the settlement to a lawyer? This is the public policy issue that is important.
Do you have any evidence that the 'scorched-earth' came from Thiel and not Hogan? If not, you'd best withdraw your 'illustration'.
The only criticism I can give in this entire tale, is that it shouldn't take a billionaire to sue and win judgement against slanderous publishers. Such recourse should be made available to every common man, regardless of wealth.
But still, progress is only ever made, one step at a time. Good riddance to Gawker.
One man's libel/slander is another man's investigate journalism ("muckraking" in the US). In this particular case, Gawker wasn't guilty of either libel or slander because they didn't publish anything about Hogan that was false.
> it shouldn't take a billionaire to sue and win judgement against slanderous publishers
It's actually much harder to win a libel/slander suit as a public figure. See: http://www.firstamendmentcenter.org/libel-defamation
1. (US) One who investigates and exposes issues of corruption that often violate widely held values; e.g. one who exposes political corruption or the poor conditions in prisons.
2. (Britain) A sensationalist, scandal-mongering journalist, one who is not driven by any social principles.
As someone said, it was a pejorative term that was reclaimed, and that makes a lot of sense to me now.
I agree, but the reason Gawker lost is important. It was because they violated someone's privacy.
I strongly support violating the privacy of powerful, public figures in the future if it serves public interest. I agree that Gawker was stupid, greedy, and overreaching here, but I still worry that next time, the sex tape (or whatever it is) will be equally private but much more important to the public.
People are acting like their is no thought put into these type of court cases. This isn't a universal precedent that applies to every situation. It doesn't prevent any journalist from pursuing legitimate news stories and invading privacy along the way. It only prevents journalist from invading someone's privacy where the only story is the invasion itself.
A billionaire could fund cases against a media company entirely irrespective of the merit of those cases - the media company would still be forced to pay the legal fees associated with defending themselves, even if it's as simple as just getting it thrown out of court. Do it enough times and you've bankrupted the company.
For an example, Mother Jones was brought to the brink of bankruptcy for reporting an entirely true and legitimate story:
It looks like you haven't been paying close attention to the Gawker suite: Gawker also had insurance, but Bollea strategically dropped a charge that would have let Gawker claim against insurance (and at the same time reducing the total amount he would receive). This suite isn't about damages: it's about bankrupting Gawker for better or for worse. There's nothing that suggests a similar strategy can't be employed against Mother Jones.
Plus Gawker's case was specifically structured to avoid an insurance payout. A blueprint for others in the future.
That's obviously a big problem. I have never understood why America insists on a dogmatic principle that inherently and unavoidably gives a vast advantage to well-off parties over poor parties. You can get away with a lot of vexatious litigation before the courts (a) notice it and (b) actually act upon it.
...not to mention, Hogan's public persona and living he has earned has been by posing as a larger than life clownish character; I don't even see that he was harmed. Ask yourself, do you think less of Hogan now? (and not because it turns out that he has less impressive sounding real name)
I'd have more sympathy for a "normal" person.
I'm talking about the standards that courts use to measure "harm". Young starlets have so many sex tapes (their own and hacked) out there, and it doesn't seem to harm them much.
It's almost as if a porn star could make a better claim that they lost the commercial potential of something stolen!
Again, I'm not saying that I want to live in a world where it's ok to steal people's sex tapes and put them out there; but I am also noting that in today's world, it is much less of a "harm" or even an embarrassment to people than it was when the system of torts was established. Since torts are based on harm, we run into the issue of "how much harm did this cause?"
maybe it needs to be made illegal like "upskirts". (and I'm not advocating that, either. I'm saying, I'd like some clarity to exactly what people are outraged by)
Anyway maybe it made him relevant again ("there is no such thing as bad PR"), I had forgotten he existed. Need to wait for some time to go by before it's clear.
I'm not advocating a side or devil's advocating, i just prefer the "less outraged middle" over the "outraged extremes"
What if the CEO of a company intimidates an employee into having sex with him and secretly films it, and that gets released? That's also important journalism.
There are lots of other ways sex tapes could be newsworthy: a famous person makes racist comments in it (the Hogan tape!), a Hollywood director asks for sex in exchange for a role, etc. etc.
This seems to be Denton's major defense of the newsworthiness of the tape (although even he argues it half-heartedly).
I don't buy it. The racist comments on one part of the tape don't make the actual sex part newsworthy. They posted a heavily edited version of the tape, which meant they included the sex intentionally. Seems obvious the purpose of those segments was simple voyeurism, which is an invasion of privacy.
The "but he's a racist" defense strikes me as a cynical attempt to latch onto the current mainstream social-justice train, when really this has nothing to do with racism.
So let me make some points myself:
1. Publishing the cartoons themselves makes a variety of statements that can't be made by reporting on their existence without showing them.
2. Those statements have great value, independent of any questions of taste.
3. Everything slg says about the difference between publishing a report that a sex tape exists vs publishing the tape itself applies in full to the Mohammed cartoons.
The right to tasteless speech is important and worth defending, but I'm not trying to do that here. I want to counter the argument slg is making, which is that tasteless reporting should be prohibited when you could approximate the same report in better taste. The raw facts always have an inherent value beyond a reporter's interpretation of them.
Or let's use a different example like the Stanford rape case. No one is reporting the name of the victim of that case, but her name is a "raw fact" of the case. Would you support releasing her name and if not, how is that different that releasing the sex tape?
Against someone saying there should be legal liability for releasing it, definitely.
I would not be so quick to celebrate. This case has demonstrated that one or two very powerful, wealthy individuals (Peter Thiel et al) are able to destroy a successful business and ruin the livlihoods of dozens merely because they were embarassed.
(It's worth noting that what Gawker originally wrote about Thiel was also apparently true.)
The judge didn't allow the evidence be heard likely because there was no evidence (conjecture). It's the standard desperation you get from someone losing a case or appealing a loss.
Why? That seems like an important piece of evidence.
On an almost daily basis Bubba talked on air about he had cameras all over his house and taped everything. I find it very hard to believe that me--a random radio listener--knew that he taped everything in his house, but supposedly his best friend Hulk Hogan was oblivious.
> I would not be so quick to celebrate. This case has demonstrated that one or two very powerful, wealthy individuals (Peter Thiel et al) are able to destroy a successful business and ruin the livlihoods of dozens merely because they were embarassed.
That's always been true anyway. On the bright side, this time it was all over the internet, so that's some kind of progress at least.
> (It's worth noting that what Gawker originally wrote about Thiel was also apparently true.)
In both cases the info Gawker published was really nobody's business but that of the people involved. They published it as shameful attempts to get page views and (possibly) just to be mean. So good riddance.
But the way they've been destroyed is terrifying for anyone who wants to live in a free and informed society. The ends don't justify the means.
Gawker ruined the livelihoods of its employees, not Hulk Hogan, not Thiel, with its scummy behavior.Hogan is the victim here, as much as Gawker's employees, they are victim of Gawker's policy which is profit at all cost. Well now Gawker is paying that cost.
Much as you might hate Gawker, and I definitely think their practices of outing people for no reason and publishing sex tapes are morally and ethically shitty, what this really shows is that if you piss a billionaire off, they can and likely will silence you. I'm not sure that's a good thing.
You seem to not understand what freedom of speech means. As someone who actually lives in a place where people use libel and slander laws to sue people left and right and get offended, consequence being censorships and a tightening of restrictions on speech, I'd kill to have the kind of freedom Gawker did.
Would Donald Trump have sued the journalist who published a piece estimating his true net worth if this was in place?
Just make it so money cannot buy better lawyers or legal advice, and the court system would be made far fairer to everyone.
Sounds like that could be gamed by lawyers to turn into a full-employment-for-lawyers act.
Also its a good lesson to other sites to police content to ensure no one says anything bad about billionaires.
Thank god for thiel protecting us from horrible things like censorship!
There's a brave new world of pro-billionaires media awaiting us. Just compare this lavish Vanity Fair piece (http://www.vanityfair.com/news/2013/09/photos-sean-parker-we...) on Sean Parker's wedding to the ugly reality behind it all, as published by Gawker: http://valleywag.gawker.com/the-full-damage-of-facebook-bill...
As opposed to the brave world of billion-dollar news corporations destroying millionaires.
For context, you really should have published Mr. Parker's defense: http://www.theatlantic.com/technology/archive/2013/06/sean-p...
Of course, whether those sites should be saved is another question. Some have some good content, but some are exactly the kind of low quality, often legally shaky muckraking that got Gawker sued into oblivion in the first place.
Or maybe to not publish sex tapes?
I can't understand why people are so upset about a third party paying legal expenses... what do you think the ACLU, EFF, and tons of other organizations and private citizens (either in individual or collective form) do? A jury (impartial to Thiel and unaware of his involvement) found Gawker and Nick Denton personally guilty. Denton himself is worth over $100 million (Gawker itself was valued according to reports to the court at $80 million, so he has plenty of assets outside Gawker), so this isn't a story of a big financier ganging up on a "little guy" that people are trying to make it out to be.
It's sort of like defending the free speech of terrible groups like the KKK. We do it because we treasure free speech, not because we support the KKK.
I generally have positive feelings about Thiel, but his actions here make me very uneasy. I worry that the aristocracy will now use this method to try and close down unfavorable media outlets. I believe this will have a chilling effect on the media in the US.
Thief merely funded a court battle that had merit (in this case, quite a lot of merit) that Bollea probably could have won on his own. I fail to see what the hand-wringing about is about.
For example, it's illegal to film what's happening inside a slaughterhouse. Some people are getting into trouble for filming cops.
I'm not saying Gawker shouldn't be punished, but legality doesn't imply morality and free press in theory could be helping to review and change the immoral laws. The chilling effect from Gawker bankruptcy will be that, among other things, every publisher will know not to mess with the status quo.
One can easily imagine a next generation of laws that will make it illegal to publish leaked documents, like those that Snowden or Wikileaks released.
Come on. What goes on in a slaughterhouse affects all meat-eaters. It's a matter of public interest. But what happens in Hulk Hogan's bedroom between 2 consenting adults? And something that we all expect to keep private (except the exhibitionist types)? Not in the public interest at all. Would you call upskirt photos in the public interest? Or spycams in public bathrooms?
That strikes me as overreach. There's clearly a privacy question here, but the video is real, the words are real, and the events actually happened.
I've never seen the video. I don't care. Hogan's sex life is not interesting to me. People already masterbate to him.
I'm struggling to understand how a large amount of damage was dealt.
Isn't the alternative that every journalistic publication is above the law? If it were/is a free speech issue, then presumably it will be overturned on appeal?
Bollea's lawyers, as funded by Thiel, then decided to specifically drop the claim that would allow the damages payout to have been made from insurance. That's fairly vindictive.
Especially given Thiel's motive that "they outed me" - come on, Thiel's sexuality was probably the worst kept secret in the Valley. When you pose shirtless on a gay cruise, I think it's fairly safe the rest of the world didn't need Valleywag to tell them of your homosexuality.
I think a lot of what Gawker has done is repugnant.
But this is analogous to me making a bad mistake (even breaking the law) and causing a lot of damage in a car accident. In the civil trials that follow, I'm sued for damages, distress, medical bills, and the like. All well and good, as I should be.
And I have insurance. As I should have.
Except you don't like me, because I previously attacked you verbally.
So you say "Actually, your Honor, we're dropping all claims that are proximate to the accident itself, and only suing for everything that happened after the fact." which ever-so-conveniently takes my insurance off the hook for its ability to pay.
And you only do this -after- being assured you'll win, so no-one can question your real motivation (apparently, there was all this damage and distress you suffered, and you want recompense. Except now you don't, because you're removing the only realistic mechanism for you to obtain any recompense).
I don't think "secret motivations" and secret financiers should be a part of an open court system (and indeed, secretly financing lawsuits used to be and in most places is still illegal because it raises more ethical and moral questions than it answers).
Does all that evidence matter? Shouldn't it be up to Theil when and where he outs himself instead of blog like Valleywag doing it for him?
When I go to the supermarket I see 500 headlines about famous people dating and breaking up and cheating on their partners, etc.
Sure it's a little lowbrow but do we really feel that rumors about Brad Pitt and Carrie Underwood's dating life are ok to publish but his aren't? Are Peter Thiel's relationships specifically somehow exempt from this aspect of the culture?
Freedom of the press and freedom of speech is not about evaluating everything said and determining if something is "in the public interest" in the United States. I think that focus on the "public interest" aligns more with European or Chinese cultural values.
If we are talking about personal values, I am glad we don't have censors in the US. Even if you and I can agree celebrity gossip probably has no value, what get defined as "not in the public interest" is too easy to be politically determined.
Agree, but it isn't illegal.
1) It feels obviously wrong to me to have someone publicly outed like that. [like you say, the evidence doesn't matter]
2) It feels sketchy for a wronged person to retaliate by having a nontrivial player in written media shut down.
I find a private, rich entity shutting down a media company much scarier than a media company publishing facts.
But if you haven't, you really ought to read Benedict Evans piece on this:
> Again, though, Thiel has already won. He is fabulously wealthy and extremely influential, and say what you will about Gawker, the liberal democracy that made it possible for the companies Thiel has built and invested in to emerge depends on a free press; driving a publication to bankruptcy via lawyer fees may be legal by the letter of the law, and even deserved on a personal level, but it is in absolute violation of the spirit of the law and, I might add, a rather hypocritical — or is it ironic? — use of government by the avowed libertarian Thiel. What are more concerning, though — and implicit in this concern is a critique of libertarianism — are the second and third-order effects of Thiel’s approach.
> The most obvious second-order effect is that, as Felix Salmon writes, Thiel is providing a blueprint for the suppression of the press by the wealthy. But what concerns me — and what ought to concern Thiel, and all of the Silicon Valley elites celebrating his actions — are the third order effects. Specifically, Thiel’s actions are bringing into stark relief the fundamental weakness of old analog businesses like journalism relative to the incredible power and strength of the technology sector, and if companies follow Thiel’s example, the freedom that makes the emergence of said companies possible could quickly come under threat — and deservedly so.
I just don't fully agree. I see a powerful person doing what nobody else was willing to do - hold a powerful and abusive media organization to account for their actions. It's far from ideal. However, no ideal answer was on offer. In an ideal world, this whole thing wouldn't have happened.
To me, it is a stepwise improvement over the previous state of affairs. This reminds powerful people and organizations of something important - they are not the only ones with power.
Just like in Gawker's case, decisions have consequences. Don't claim your sex life is private and no-one's business (and I have zero interest) whilst posting pictures of yourself on gay cruises.
"Like" it doesn't come into it. I don't have a right to stop people doing what I don't "like".
I am all for free speech, but if we are going to have libel and defamation laws (which I have mixed feelings about), everyone should be allowed to avail themselves of the opportunity to obtain compensation from those who have 'wronged' them.
"Just like in Gawker's case, decisions have consequences. Don't claim your sex life is private and no-one's business (and I have zero interest) whilst posting pictures of yourself on gay cruises."
...is not saying that decisions have consequences. It is saying that people who make decisions you don't agree with have no right to privacy. You are arguing that a perceived moment of hypocrisy should somehow revoke a person's ability to make decisions.
There is zero morality in showbiz, it's all dares, counter-dares, lawyers and technicalities.
You fight fire with fire. I don't think it's unfair Gawker lost at their own game. Another one will fill the void anyway.
This is: you hit me with a car, i find out what your insurance covers, and then make sure that your insurance wont cover it.
So... Reporting on that seems like actual information that should be public? Compare to the pamela anderson tape, which was with her husband, was literally /stolen from their home/, and was sold for profit. Judge ruled that there wasnt anythig they could do.
Meanwhile, Thiel who was using hogan as a proxy has literally just demonstrated that you cant afford to post opinion pieces about tech billionaires and their occassionally delusional comments about how people should behave.
It wasnt illegally made, it wasnt stolen, it was in the public interest (hogan is a very public figure, and has gone on at length about being faithful, not cheating, loose morals of young people).
This fetish is called wifesharing. It's not cheating, and it's not immoral. You may not personally like the idea, but calling someone's fetish immoral when all parties consent to the act is strange. Saying that it's in the public interest to know is offensive.
There are many sources that say this was a consensual act. I won't post these sordid articles here, but they are very easy to find.
This is equivalent to someone being gay, and someone else saying that it's in the public interest for their immoral acts to be made public.
FWIW, unless there's some real public interest beyond the prurient, I don't see why people should be able to publish anyone's private sex tapes without their consent. I would tend to say that the right to privacy should win in such cases.
Posting the video got them in trouble (for obvious reasons), and refusing to take it down played a big role in the final sentence (aka death).
So it's OK as long as they cross the "very" threshhold?
Also, just because it interests you and you're a member of the public does not make it a public interest
The only way this case is dangerous is if people start issuing bonds which are just a collection of partial settlements of still undecided lawsuits, funded by the purchase of said bond. This doesn't exist (as no banks are backing/issuing these bonds).
Its just media FUD due to them being held accountable for violating personal privacy laws.
If you are concerned the case cost to much here's a new issue for you to care about TORT REFORM.
It was my impression that Nick Denton told the court to fuck itself by ignoring the court order, and then doubled down in his deposition.
What about that video of Mitt Romney at a private campaign event, where he said some horrible stuff about poor people? That was a private video, probably made illegally.
Journalism is about making private things public when it suits the public. An individual (who is directly impacted by the revelations) should not be able to use the courts to crush that journalism.
Gawker has been repugnant and they shouldn't have done what they did to Hogan, but there could still be a bad precedent here.
For the record, he didn't say anything horrible about poor people. What he said was:
> There are 47 percent of the people who will vote for the president no matter what. All right, there are 47 percent who are with him, who are dependent upon government, who believe that they are victims, who believe the government has a responsibility to care for them, who believe that they are entitled to health care, to food, to housing, to you-name-it. That's an entitlement. The government should give it to them. And they will vote for this president no matter what. And I mean the president starts off with 48, 49... he starts off with a huge number. These are people who pay no income tax. Forty-seven percent of Americans pay no income tax. So our message of low taxes doesn't connect. So he'll be out there talking about tax cuts for the rich. … My job is not to worry about those people. I'll never convince them they should take personal responsibility and care for their lives. What I have to do is convince the 5–10% in the center that are independents, that are thoughtful, that look at voting one way or the other depending upon in some cases emotion, whether they like the guy or not.
He simply stated the facts: there's nothing he can do to win over a certain fraction of the electorate without compromising his principles; thus there's no point focusing on it; thus he needs to spend his time as a candidate focusing on those who he can win over without compromising his principles.
When you're taped stating that you are not even going to try to help 47% of the population because of a stereotype I think that people have a valid point to be upset about.
How do you know that he was incorrect?
Basically, his story was the upper leadership were caught on tape making comments about how the rank and file of Libertarians were essentially manipulated fools to prevent them from disrupting the power of the Republican Party. That is the gist of his story, as best I can remember. I have some sympathy for libertarian principles, and conservative ones, and liberal ones, so I am not an ideologue. This incident is entirely possible, given what I understand of human nature and how society/politics actually operates.
I agree with Gawker being repugnant etc; the story seems essentially salacious and its fundamental purpose was to drive website traffic. Are sex scandals that important, in the big picture? Only when they involve national security or other such public interest issues - e.g. General David Petraeus and his carelessness. Where is the line where exposing hypocrisy is in the public interest versus the essential rights of a person?
Video of people having sex may be something the public is interested in, but it is not in the public interest. It's none of the public's business and the public should find more interesting things to be interested in.
And Romney had the right to sue.He didn't what you're point ?
And what about all the other people that were the victims of such an invasion of privacy, but didn't get a reward big enough to retire on thirty times over?
The core problem is that the "justice" system is so capricious that only a few victims get made whole, and when they do, it's bizarrely over the top.
Maybe Florida anti-SLAPP laws aren't good enough, I don't know. But it's a tough balance. Bollea's case was determine by a judge to have enough merit to take to court.
Bollea will probably lose on appeal. But he definitely has the right to his day in court.
I don't buy it. Courts routinely throw out frivolous suits, sometimes they even punish the people who start them.
Gawker lost because Gawker was wrong.
Yes Thiel has shakey ethics. Gawker violated the law AND ethics. Neither side was good in this case.
If you think court cases are too expensive PERIOD... Then start caring about Tort Reform.
Should the company be penalized? Most definitely. Was it worth shutting an otherwise okay running business? Questionably.
He has funded multiple suits against Gawker.
He wasn't giving a friend some money, he was explicitly searching out cases to take down a media company. That's a precedent.
After Thiel was revealed as the financier, some in the media saw an opportunity to re-caste the narrative in a way that they knew would appeal to our hatred of the rich and our fear for their abuse of power. The story became all about Thiel the alleged bully, the abuser of power, his petty grudge, etc etc. It was effective manipulation, just look at the comments here from those who think this 'sets a bad precedent'.
Never mind that Thiel's side was right and Gawker was wrong. Never mind that the mechanism employed to achieve justice here is basically the same mechanism that the ACLU uses.
There's no way to know, but my guess is that had Thiel stepped up in public a few years ago and said, "Gawker is a terrible gossip rag that needs to be taught a lesson -- contact me if they've wronged you too, and I'll help you mount a case", people would be less angry at him.
People don't like the idea that a shadowy cabal can run things behind the scenes without any public scrutiny.
Secondly, the ACLU does not generally appear vindictive. The ACLU looks to fund cases with a motive that people generally understand to be making things better for American society. Thiel may claim that removing Gawker from the face of the earth is a public service, but given the obvious history, that seems laughable. He appears vindictive, not altruistic.
That's because, with Thiel's involvement, the case became about something else: a personal vendetta. Regardless of the outcome, many of us are dismayed that Thiel was able to weaponize the justice system using huge amounts of money.
> why should a media publication like Gawker not be held accountable?
The tape of Hogan had racist comments on it, which are arguably in the public interest (since Hogan is a business(man) and consumers should be able to know about his character). It was stupid and possibly illegal of them to include the sex part of the tape, but was it worth $100M? Did that part of the tape harm Hogan at all?
If Denton had published the tape 'for the public', he wouldn't have included the sex bit; we all know that this was classic Gawker clickbait. Denton obviously only cares about 'disclosure' when it gives him ammunition to use against his opponents, especially when he can profit off of it.
100% agree with this. Publication of the entire tape was not necessary. What would be the difference between publishing that a tape existed or a few screenshots vs the entire tape? Clicks.
Absolute nonsense. So if, let's say, Jennifer Lawrence had a tattoo on her butt that said something derogatory, suddenly leaking her nude photos is ok? I mean, she is a public figure and kids look up to her! What she does in the privacy of her home is absolutely public information, because of this. If they -really- only were doing it for the public's benefit they would have just had that snippet, with the audio; but they didn't, they published the full tape.
> That's because, with Thiel's involvement, the case became about something else: a personal vendetta.
Do you think Hogan suing or anyone else suing for this type of thing is -not- a vendetta? Hogan was already wealthy, he didn't need Gawker's cash. He did it to take them down. Are we to not allow him to sue because that's technically a "vendetta?"
I mean, Gawker did a similar thing to Thiel by outing him to the public. That case would never hold up; so instead of going down that path he waited in the wings; I don't see how this is different than something like a class action where outside money is funding a suit.
People need to get the idea out of their head that "outside money" is inherently bad. The ACLU, FIRE, and tons of civil liberty organizations are "outside money." Be careful what you wish for.
But he funded a winning suit. He wasn't pestering them with this suit. It was a 100% legitimate suit. He funded a correct result.
You want scary? Even Hulk Hogan doesn't have enough money to fund a correct lawsuit.
Hence cheating on his wife was news, the public should have been informed, and unlike that fappening this wasnt stolen.
A news organization should not have the right to publish a sex tape to establish dubious morality. It also should not have the right to publish Hogan taking a straining shit if he appeared previously in a hemorrhoid commercial.
There are standards in civilized society.
There is a difference between protecting a group from being silenced by the Government and holding a private company liable when they release a sex tape under the pretense of freedom of speech/freedom of the press.
>I believe this will have a chilling effect on the media in the US.
As well it should...its not exactly a slippery slope: sex tapes don't become newsworthy just because the subject is a celebrity.
What if the sex might have been non-consensual (see: Dominique Strauss-Kahn)? What if the sex is between a public official and his employee (see: Bill Clinton)? What if the sex is illegal (see: Eliot Spitzer)?
The fact is that sex can be of interest to the public, which means video of that sex can also be of interest to the public.
How exactly is it "very different from adult people consensually enjoying themselves"?
Whataboutism. Hogan had the right to sue, he won, end of story. This isn't the government and a prosecution silencing Gawker, this is an individual against a corporation and he won.period.
There is another type of illegal sex, the kind involving minors. And I don't care how news worthy anyone would deem it to be, even the most hardcore Free Speech absolutist usually goes quite confronted with that conundrum. The public's interest doesn't create protected speech.
(An irony that the first site that came up was Gawker)
All I see is a report that it exists. Neither of the two links in the tweet were to stories showing the photos.
The publishing of secrets derived from an invasion of privacy is defensible by "free speech" if something of great moral/ethical imperative is gained. Publishing papers that reveal years of lying and misleading the American public about the true extent of the US government's involvement in Vietnam and surrounding countries, aka the Pentagon Papers? Defensible. Publishing a videotape without consent of someone having sex? Gawker can scream "free speech" till they're blue in the face; I think your average person is going to recognize a blatant violation of privacy occurred with little gained.
Look, I get it: free speech = awesome. But I don't think your average person sees free speech as an automatic get-out-of-jail-free card.
It went to Court and went through the due process, that process hasn't prior to this case and it wont after this case and the constitution remains the same.
If you publish, you deal with the repercussions, whether positive or negative.
The only thing I dislike is that it takes a billionaire to help a millionaire financially to give the case a fair chance while the less wealthy are powerless and without aid to even start a similar battle.
The story they reported was 100% correct, but they were still sued by the billionaire political donor that was the subject of the story. The case was eventually thrown out of court, yet it still cost Mother Jones $2.5m to defend themselves. That was enough to drive them to the brink of bankruptcy.
That you have to have serious cash to hold a news site accountable? We are not talking about a charity, Gawker is a multi-million dollar business.
I am glad Thiel did this and I hope it has a chilling effect on the media in the US. They weren't printing news, they were going for titillation that just happened embarrass someone they didn't like. Corruption in political figures, fine, but not this crud.
The only thing stopping Gawker being crushed before was the fact it had a multi million dollar corporation behind it, and was happy to flat out ignore any complaints they didn't like. Now someone with more money comes along, they get smashed to a pulp and everything somehow changes.
I'm with David Friedman on this.
Making tort claims marketable solves multiple problems:
1. The tort victim who can’t afford a lawyer. He may be able to get a law firm to take the case for a share of the award, but …
2. How does he know which law firm will do a good job, which do a bad job, which sell him out for some covert payment? If he can sell his claim, all he needs to know is which firm offers him the highest price.
I know some liberals think libertarians are gaga for markets but it seems like this would serve their egalitarian goals as well. Personally I had never considered the potential for the first point but now it seems obvious.
What if this organisation could publish any dirt on you, could publish your most intimate pictures or details and if you were suing them, they would be fined only $10k, which they wouldn't care about because they make a lot more money abusing people?
I would say this would be justice and ordinary citizens being helpless against big business.
Thiel had an issue with Gawker, Thiel should have taken it to Gawker.
This is incredibly common, e.g. it's basically the entire job description of the ACLU. Why is it different in this case?
The ACLU is a charitable organization, and its cases have an ideological consistency. Thiel was just trying to find anything he could on Gawker (or just bury them in frivolous lawsuits if he couldn't). The cases didn't have any ideological consistency except "kill Gawker".
The Gizmodo article that Thiel thinks is worth suing Gawker over: http://gizmodo.com/5887480/the-inventor-of-email-did-not-inv...
Still, Gawker is/was big enough that several frivolous lawsuits would've been unlikely to cause bankruptcy if none of them resulted in an adverse judgment. I have to think Thiel's goal was more to fire multiple shots and hope one finds its mark.
No, it's more nuanced than that. What the ACLU is saying is that there's a difference between Hulk Hogan (the public figure) and Terry Bollea (the person), and that the jury found the video wasn't about the public figure.
As for me, I can appreciate that this feels flimsy - how can one know where the line is drawn? - yet I think the distinction exists in practice and it'd be a failure of justice to deny it.
Hulk Hogan’s verdict will likely be overturned by the Florida District Court of Appeal, Second Circuit. That court, in earlier overturning the trial judge’s grant of a preliminary injunction to stop the publication of the video before trial, already indicated its sympathies to the First Amendment defense. The appellate court held that (1) Hogan is a public figure, as a wrestler and reality television star; (2) Hogan has already discussed his family and sex life in the media; (3) sexually explicit content does not nullify speech’s newsworthiness, (4) the posted video and commentary are linked to a matter of public concern; and, importantly, (5) Gawker carefully published only a small excerpt of the sex tape, not the entire thing. Although a ruling on a preliminary injunction does not bind the Florida court of appeals now that it can view all of the evidence, the appellate court seems poised to disregard the trial court’s First Amendment decisions, all issued without full written orders.
It should concern you that it took money from an outside source to get an alledged wrong by a massive company to litigated in front of a jury. That should be very concerning.
As for Thiel and Gawker, they're both bullies, and bullies beating the shit out of each other is just fine by me.
"emotional comfort of a billionaire"
That is very dismissive. Are people worth less to you when they have more money?
They knew who they were working for. Lie down with dogs, etc.
There is no way Hogan wasn't a public figure. viz him talking to Howard Stern about his sex life.
Gawker had, under previous First Amendment jurisprudence, the right to post that tape. Most free speech lawyers assume it will be reversed on appeal.
This is completely separate from whether they should have posted that tape.
If the National Enquirer broke the law and was sued, do you really think it would affect decision making at the NYT or Washington Post?
Think tanks have been subpoenaed over AGW skepticism:
Media organizations have been prevented from reporting on Hillary Clinton during a political campaign:
This sort of thing has been common practice for a long time.
The only real difference is that this time the media sees the victim as being part of their tribe and the attacker being part of an opposing tribe.
Defamation (includes libel, slander)
Incitement to imminent lawless action
Solicitations to commit crimes
I know people love to protect freedom of speech and I'm on that bandwagon, but please let's remember just because it appears freedom of speech is being violated doesn't mean it is (e.g. in cases were most people don't support something and it appears the mob rule is triumph, it should indeed be sign that something may be wrong but let's not use that sign as enough evidence that free speech is violated.) Sometimes it's not the freedom of speech that is being violated, but some person's rights.
Peter Thiel funding a lawsuit against a company he has a personal grudge against is a scary thing. What if the Koch Brothers decide to start funding lawsuits against Nature or Science magazines that publisher articles about global warming? Even if none of the lawsuits win, they could shut down these publications because of the legal bills involved in the court cases.
People celebrating this are in my opinion incredibly myopic.
That would be scary but nothing was stopping them from doing that before.
In the case of Gawker they lost in court because they were wrong, they didn't run out of money due to attrition.
Well, no, some of the sites under the Gawker umbrella were quite excellent. That's one more thing to lay at the feet of Nick Denton; his irresponsible behavior is going to take down some pretty good journalism along with the cesspool that was Gawker proper.
If those articles were somehow actually legally libellous, that would be fine. But that seems unlikely.
On the one hand it's "A rich billionaire with pockets deeper than a media organization, funding a lawsuit"
On the other hand it's "A media organization that posts what they want because it's too costly to sue them"
Perhaps the precedent is "Don't try to make a quick buck posting sex tapes without permission just because you don't think someone can afford to come after you"?
It's not as black and white as most free speech and freedom of the press issues.
Edit: grrrrr autocorrect
that if you say something, you stand by the consequences, financial and all?
that people take responsibility for what they say is not a new development.
new journals are free to start up and take the place of gawker. nothing here stops them from doing so.
The problem is that any media outlet, if they've been around long enough, has probably published something you could convince a jury was slanderous or libelous or defamatory or whatever. So the precedent I think OP is concerned about is: if you're a rich person and you don't like something a media outlet writes about you or your startup or your pet issue of the week or whatever, it's now been proven effective for you to troll through that publisher's history in search of something juicy to pay someone to sue over, and use it to take that entire company out of the water, forever, even if the thing you're suing over has nothing to do with the thing you found objectionable in the first place, which may be perfectly journalistically legitimate and legal.
Or, concretely: who's going to want to write anything nasty about Peter Thiel or his interests now, since he's proven a willingness to go to great lengths to find dirt to kill companies?
gawker played themselves.
> who's going to want to write anything nasty about Peter Thiel
you can write nasty things about Thiel but remember rule #1: don't play yourself.
That's not happening here.
Not advocating anything here really. Just pointing out that the "first amendment only applies to government actions" argument isn't valid in this case.
I for one am overjoyed with this news and have no concern whatsoever that it will be the death knell of legitimate journalism. Voyeuristic muck like Gawker makes society ugly.
But also I hated Gawker, so, difficult to feel too sorry about this particular development.