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Gawker Files for Bankruptcy, Will Be Put Up for Auction (wsj.com)
518 points by apsec112 on June 10, 2016 | hide | past | web | favorite | 541 comments



A few thoughts:

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.


You can't talk about issue 3 without mentioning things like the EFF, ACLU, NAACP, or any number of legitimate third parties that have made it part of their mission to support cases they think are important. How do you deal with those separately or how would you prevent Thiel from simply creating a similar organization and using it for his own personal agenda?


I was going to say the same thing, but I think this is the key phrase:

| 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...


Except Thiel arguably has "connection with the merits of the dispute". He feels that Gawker violated his privacy as well as Hogan's, and he wants Gawker to be punished and/or discouraged from further similar behavior. Just like the EFF or ACLU.


Or if he doesn't do it personally, he can certainly create the Privacy Protection League in order to fight for privacy rights. And guess what the first case the new PPL might take on. I'm not sure how you distinguish that from a legitimate organization like the EFF or ACLU.


And one can ask why this PPL would not be a "legitimate organization" like the EFF or ACLU.


Perhaps in how they fundraise, take on volunteers, how many cases they focus on (do they dissolve after Gawker?), etc. My guess is after the fact you could prove intention with a wide variety of events, just like you can't create a non-profit to buy houses for people just so you can buy yourself a house tax free.


Just curious: aside from historical precedent, what objective "connection with the merits of the dispute" makes the ACLU more appropriate than Thiel to fund a privacy suit? Is it just that the ACLU has trained lawyers who can weigh in on the law? Would the attitude toward Thiel change if Thiel happened to have a law degree? Would it change for the ACLU if they were purely funding it and not actually providing lawyers?


> Would the attitude toward Thiel change if Thiel happened to have a law degree?

He does have a law degree.


Ha, that's too funny. Of course he does.


The ACLU tries to promote civil liberties in general.

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.


But if Thiel says he's promoting civil liberties, that his mission is protecting privacy, how can one logically conclude, "Actually, he's just being selfish" without deviating from the merits of the issue and questioning his character?

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.


It seems like drawing the line between connection or no-direct-connection isn't right here. It seems like helping fund people who have a legitimate case is good. It's hard to see a downside for helping people get justice. But it's not always as easy to draw the line on frivolous vs legitimate lawsuits which complicates things here.


> Would it change for the ACLU if they were purely funding it and not actually providing lawyers?

This is an interesting one. If the answer is "yes", then donating to the ACLU should itself be criminalized.


They use their donations to pay their lawyers though, right?


>Except Thiel arguably has "connection with the merits of the dispute". He feels that Gawker violated his privacy as well as Hogan's, and he wants Gawker to be punished and/or discouraged from further similar behavior. Just like the EFF or ACLU.

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.


If that was a legitimate legal strategy (my privacy was violated) he would have followed that. Instead he looked for any available avenue to attack them. This is one of many reasons he's not a good guy.


then he should file his own lawsuit. he has no standing to sue over the hogan case


The ACLU has no standing to sue over teaching evolution in schools. The NAACP has no standing to sue over school segregation.

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?


The ACLU and NAACP are non-profits that are supported by a large number of members, publicly report their spending, and are governed by leaders chosen through a democratic process. When they back a lawsuit, they are very transparent about it.

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.


Rather than just relying on what you think, you would need to propose a legal framework that can actually be enforced, for distinguishing between the two. Because it is legally ambiguous.

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!


I keep coming back to a very simple policy: disclosure. When the ACLU pays for lawyers, it's not a secret and e.g. a judge, government official, etc. making decisions about the case does so with full knowledge of who's backing it.

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.


Oh really, so then you'd be OK with throwing out the case law for cases like https://en.wikipedia.org/wiki/NAACP_v._Button and https://en.wikipedia.org/wiki/NAACP_v._Alabama?


In neither case was the NAACP's involvement concealed so I assume you're switching to the question of whether this goes more than one level deep to include the membership lists. That's a good question – it would be interesting to see how a modern court would rule on something like setting minimum thresholds, or how many more options a state-level attacker has now to build that kind of list without permission.


That would be fine. The hypothetical billionaire non-profit would have disclosure rules, and the judge could determine if their charter was sufficiently related to be able to weigh in. This isn't actually all that complicated, we do it for amicus filings all the time.


And if the judge determines the charter is unrelated, for example, you can expect a never-ending series of appeals over that judicial decision. That's just one example.


So if Peter Thiel teamed up with Pax Dickinson and Justine Sacco, funded the non-profit "Screw You Gawker" organization which then funded Bollea's lawsuit, that would be acceptable?



Agreed with the direction you were going there.

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.


Most of the cases ACLU is involved in are against the government, not private entities.


If we disallow cases because the defendant is not the government, doesn't that invite someone to disallow cases because the defendant is the government?

(Which of course happens all the time, but still...)


No, the government is held to a higher standard because they control the police and military. There are countless issues where I'd say the government should be restricted in a way that private parties are not.

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.


Not sure how that's relevant for this discussion.


Because most of the ACLU's activities do not fall under this discussion.


but most != all which clears the way for this


(3) is proof positive the absence or presence of funds has too much influence on the outcome of court cases. If all that stands between a judgment one way or the other is a pile of cash then effectively there is no such thing as justice and this means that more often than not the party with the smallest bank account will lose.

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).


Exactly -- the problem is that our civil litigation's "truth-finding procedure" is so vulnerable to financial influence. Asking how to "keep people from spending money on lawyers" is the wrong approach; the system's process needs to be robust against such asymmetric investment. [1]

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.

[1] 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".


>"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?


No, because (under the condition I described), the size of the award increases much slower than the investment, so it quickly becomes a losing proposition; the gain in award is exceeded by the loss in expenditures (assuming the bounds on legal costs awarded are bounded by a slower function).

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!)


The problem is that a court ruling can result in exponential benefits for the victor.


And if that ruling is unwarranted, it should take double-exponential costs to get it!


But, what if it is warranted and who decides this?


>the problem is that our civil litigation's "truth-finding procedure" is so vulnerable to financial influence

Do you have any scientific research backing this? Or just anecdotal evidence?


Asking for scientific evidence that the sun will come up is almost like trolling.

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.


>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.

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.


The premise of this discussion is that the better funded side tends to get a better result (in a manner superlinear with respect to the funding). If you reject that premise, fine, but your comment belongs higher up, or as its own thread, not as a criticism of my specific point.


(3) is more a statement that "you need a certain amount of money to successfully fund a lawsuit" than "more often than not the party with the [bigger] bank account will [win]." Two slightly different concepts.

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.


> 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.


> 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.

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%).


> The DOJ's conviction rate isn't appreciably different between divisions

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.


> That's only true up to a certain baseline.

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%.)


> And that's true enough for me.

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.


> To the contrary, 90% is about right. The government should only be bringing lawsuits if it has a good faith belief it can establish the facts beyond a reasonable doubt. BRD is about 90-95% probability.

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.


> 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.

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.


>It's true that over the last 30 years, the government has gotten much more conservative about bringing prosecutions.

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.


Considering the number of federal cases that plead out (I've read 98%), the DOJ's conviction rate of 90% seems very high. The incentives are heavily in favor of taking a plea unless you're pretty sure you will be found not guilty.


> 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.

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.


That's wrong on quite a few levels, thank you for that insight, I did not fully appreciate the details. As much as I dislike Gawker that's a personal vendetta fought through the justice system and a third-party's lawsuit on top of that.


Is it wrong because so few people have the resources to fund vendetta suits?


> 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.

Do you have any evidence of this at all?



There isn't evidence in either of those articles that Thiel influenced the nature of the claims to prevent insurance from triggering. Just speculation around that.

Be careful, you probably shouldn't just make shit up about someone and then pretend it is true.


> 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,

AIUI he was pretty much insolvent at the time due to an expensive divorce.


This. The "high price of justice" is the fundamental problem, whether you are a plaintiff seeking redress or a defendant hoping to avoid a default judgment.

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 agree. It may be a necessary evil to counter the effect of money on litigation. As a result it should require transparency about who is funding the 'maintenance' in order to clarify any conflicts of interest.


> 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.

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.


> Division of labor and specialization is [sic] almost always economically efficient. Litigation finance is just the embodiment of that concept applied to litigation.

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.


Considerations of economic efficiency are a complete non sequitur. You're either being skilfully provocative, or making a category error.

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.


It's a completely uncontroversial view of the justice system that it exists to ensure resources are properly allocated: http://www.law.uchicago.edu/files/files/53.Posner.Values_0.p....

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.


The more I learn about history, and the more I learn about the world around us, the less I believe the popular fashionable ideas that our ancestors were so stupid and we're so smart about everything because everything's "different" and we've got so much science that we've just got science coming out our ears or something. There's an awful lot of things like that we've torn down in the past 50 years and it doesn't tend to become clear for a decade or three that that was a bad idea, so everything thinks they've gotten away with it when they haven't necessarily.

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.


My question with regards to (3), is that wouldn't re-enacting maintenance laws effectively destroy the operation of groups like the EFF and ACLU? Groups like these work though funding small cases, usually hoping to set precedent to make future cases much easier to bear. I think it's the kind of thing where there's definitely positive and negative uses of the same mechanism. As the saying goes: Guns don't shoot people, people shoot people with guns.


You're the expert, but I don't see the harm of "maintenance". If Boella was wronged legally, he should be made whole. Whether he uses his own money to make his case doesn't change the correctness of the ruling.

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"


> but I don't see the harm of "maintenance"

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[1] 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.

[1] Yes, money will always have an advantage. That doesn't mean throw your hands in the air and walk away.


Thiel is a billionaire, he could destroy many companies out of pure spite. If a startup founder looks at him wrong he could throw millions of dollars at one of their competitors, or pay someone to start a competitor purely for vengence. This may be petty, but it's entirely legal.

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 destroyed a news company out of spite.

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.


>Thiel destroyed a news company out of spite

... 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'm not saying that this type of vengeance and cash driven attack on media outlets is a good thing but...

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.


The courts have said that in this case the company's wrongdoing is literally larger than the value of their existence ($150mm vs $100mm IIRC?), so the company should justly be destroyed.

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.


> 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.

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.


> news company

Woah, let's not get carried away here :)


>It is right in front of your nose. Whatever your views of $x, Thiel destroyed a $y out of spite. That seems like maybe a little bit of a problem.

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?


> What's wrong with Thiel destroying things out of spite?

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.


"Cet animal est très méchant..."


The key rule that Gawker broke here was "Don't make powerful enemies"

Gawker's reputation and missteps aside, this is not a rule any respectable journalism organization would agree with.


That was inartfully worded. Respectable journalism organizations don't invade people's privacy in a way that would lose a lawsuit. Woodward and Bernstein were on Nixon's enemies list, but they weren't convicted of a crime or found liable for damages in any court.

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.


> You're the expert, but I don't see the harm of "maintenance". > The key rule that Gawker broke here was "Don't make powerful enemies"

This seems like a terrible basis for a justice system. Do you not see the harm this could lead to?


I think this is hogwash to say that funding another person's litigation is somehow wrong, or abuse when in this case the plaintiff actually won. Without it, the plaintiff might not have been able to launch a case at all, which means is that rich defendants like Gawker or even Scientology would be untouchable by regular people who couldn't afford to lawyer-up.

I'm happy about the outcome.


I don't see why it matters who funds the lawsuit. While some people are worried about a world where rich people can carry out vendettas, I'm more worried about a situation where wealthy companies and individuals can screw anyone they want as long as they can outlast the victim in court.

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.


If justice is blind, why should funding matter? In other words, to limit the means of funding would be to admit that your bank balance affects the outcome when the whole point of the judicial system is to achieve fairness.


It's possible for the actual justice system to be fair but to still have unfair outcomes if money can influence who brings cases and who can afford to defend them, especially without some sort of loser pays or frivolous lawsuit system. Say you get hit with some lawsuits lawsuits. In each case, the justice system works perfectly — there's a full discussion of the merits in court and after careful deliberation the rulings were all in your favor. Did you still win if the legal fees were enough that you had to cut back your business?


>If justice is blind, why should funding matter?

That's a big if, that is verifiably false.


In that case, third-party funding seems like the last aspect of the problem that needs to be fixed.


Yes, I'd start with first-party funding making a difference.

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 agree with the concept but all this does is shift the costs. Instead of hiring a lawyer, you hire expert witnesses and private detectives and researchers etc.


Who doesn't think that your bank balance affects the outcome?


Excellent point.


Weren't maintenance laws ended for a reason? In England I thought it had more to do with the differences in class, commoners could sue lords but without another lord on their side they were pretty disadvantaged. So other lords could simply lend their name or backing to a commoner and the original lord would have to fight a more substantial case, regardless of merit. The lords passed the law to protect themselves. Lords and commoners are closer now.

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.


As to point 3, your question is still too narrow. We should ask if even self funding of legal matters should be allowed. Even if we say this case should have happened because of funding, we are left with two major issues.

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.


Taking this question seriously, is there any legal system that has ever operated like that? What would it entail?

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?


I think "loser pays" is a pretty good equalizer. It actually would protect companies like Gawker from frivolous lawsuits, or merely just the threat of those lawsuits. The savings could be used for legit cases such as this, without having a settlement bankrupt the company. And attorney fees are high in the first place because of the the demand frivolous lawsuits put on the system, so there's an additional source of savings from Loser Pays.


If a case depends on the quality of the legal council, rather than the facts of the case, haven't we already lost? We live in a market based economy, and better lawyers get more money, so this is the same problem. I'm not sure how to fix this though. Any ideas?

It is made all the harder by the "American Association for Justice"[0], 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.

[0] https://www.opensecrets.org/orgs/summary.php?id=D000000065


That's exactly right, we have already lost.

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.


All adversarial cases heavily depend on the quality of legal council. Law is not some deterministic mechanism where you insert the facts in one end, pull a lever, and it spits out a judgement in the other.

If you'd like an alternative, you could consider inquisitorial law - but barring a revolution, that will be a pipe dream.


> 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

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.


Like many things in politics and law, forming one's opinion must include considering a reverse situation - what if a wealthy individual funded the successful litigation of a "positive" entity? e.g. Bill Gates funding the destruction of the EFF (assuming someone had a case).

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??


The idea of your technique is good, but I think you've left out important details and it has affected your analysis. Gawker was bankrupted not by the actual costs of defending themselves, but by the cost of a judgement against them.

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.


You're right, my comments definitely skimmed the topic. I was more addressing the parent's comment that we should look at the over-arching issue here, and not just this specific case.


> For example, should government track all Muslims? What if in 10 years the government started tracking all Christians?

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.


I don't see how #4 is an illustration of how the process was tainted. People seem to assume Thiel and his lawyers acted on their own to make sure Gawker's insurance wouldn't cover the settlement, but why do we think Hogan would be any less amenable to giving up a few million in order to destroy Gawker? He's just as motivated to see them bankrupt as Thiel is, just less capable of funding lawsuits.


How usual is it for the court to decline to stay enforcement? What's the reasoning used to not stay? Can this decision itself be appealed?

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?


Another way of looking at this is by questioning why it is so expensive for people to obtain redress in civil matters in the first place. If Hogan had not benefited from Thiel's interest and otherwise could not afford to mount his case, then it appears that any transgressions against him would simply stand.

Where's the justice in that?


Wait. Isn't the right approach to make sure money doesn't influence litigation or legislative process, than trying to ban someone from funding another party's litigation.

If money can influence litigation, isn't that a bigger problem than a third party funding some lawsuit for whatever reason?


If we took a wider interpretation of maintenance as a crime would it imply that we should forbid lawyers from taking on cases on a contingency basis? Or does the representation automatically factor in there interest in the merits? (they certainly care, they don't get paid if they fail).

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?


Shutting Gawker was not act of oppression, the judge made a decision based on the jury's decision and his interpretation of the law, not on the amount of money Theil spent on Hogan's lawyers, and my guess is if the plaintiff were a guy that was being oppressed by an institution with more money and notoriety at hand, many people would support the third party paying for that underdog's lawyer fees.


Thank you for the historical context of point (3), it gives a lot of colour to the situation.

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.


The question of whom EFF's legal work is against is a little bit complicated because EFF undertakes direct representation as well as writing amicus briefs (and also sometimes counsels people in situations that don't lead to a court case).

If we look at

https://www.eff.org/cases

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.


>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.

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.


>... 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.

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.


>To illustrate how this sort of intermeddling tainted the processes in this case

Do you have any evidence that the 'scorched-earth' came from Thiel and not Hogan? If not, you'd best withdraw your 'illustration'.


Curious if you have an opinion on Gawker's chances on appeal. Is it true that the appellate court has already ruled that the video was newsworthy and so Gawker's chances are quite strong? Would the bankruptcy go on long enough to provide Gawker time to prevail as an independent entity?


a) An attorney working on contingency and your description of maintenance are not very far apart. b) In this country, justice is correlated with wealth. That was clearly shown in the Stanford rape case. Having wealthy people or non-profit organizations fund lawsuits against corporations should be allowed.


Does anyone have any additional info on #4?


Libel and slander have no place in a functioning democracy. By building an entire business model around such practices, Gawker is not only spreading disinformation, it is also crowding out more reputable news sources that could have better helped inform the public.

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.


> Libel and slander have no place in a functioning democracy

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


Your comment exposed me to the big gap between the meanings of muckraker in US and UK English:

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.


The term was coined as a perjorative (by Teddy Roosevelt) and then co-opted as a term of honor by the journalists he was attacking.


At least in my schooling, Upton Sinclair was held up as the very model of a muckraker, and he was certainly anything but (2) above. Perhaps sensationalist on occasion, but strongly principled.


Roosevelt was applying the term to journalists at publications like McClure's. There's a great book about this period by Doris Kearns Goodwin (The Bully Pulpit) that I can't recommend highly enough.


I'm American and I've only heard a muckraker described as number 2.


ProPublica, one of my favorite investigative news sources, describes some of their articles as "muckreads". They use the word proudly, with the implication that they've gone to lengths that the general public would/could not to find out important information.

As someone said, it was a pejorative term that was reclaimed, and that makes a lot of sense to me now.


Talking Points Memo does the same.

http://talkingpointsmemo.com/muckraker


It was part of the American History 11th grade course I took in HS in the early 90s.

https://en.wikipedia.org/wiki/Muckraker


Interesting! I'm going to change my language from "muckraking" to "investigative journalism". Thanks for pointing this out.


Does that really change the underlying belief? Whether what Gawker did was libel, an invasion of privacy, or any other crime it boils down to Gawker violating the rights of other individuals and building a business model around that practice. This wasn't some brave investigative journalist exposing corruption, this was a hack posting the sex tape of a celebrity. They aren't even in the same ballpark.


> This wasn't some brave investigative journalist exposing corruption, this was a hack posting the sex tape of a celebrity.

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.


> but I still worry that next time...

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.


Huh? That's not true at all.

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:

http://m.motherjones.com/media/2015/10/mother-jones-vandersl...


Well run media companies have insurance for this type of thing. When Mother Jones lists the cost of that lawsuit, they combined both the costs they paid with the costs the insurance company paid for a total of $2.5 million. You need to separate those two costs out if you want to prove the Mother Jones was legitimately on the brink of bankruptcy due to the lawsuit. Otherwise it just appears to be an insurance company doing the job they are paid to do.


> Well run media companies have insurance for this type of thing

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.


I have been following the Gawker case and if the prosecutors can adjust the case in such a way to avoid insurance it tells me that either Gawker didn't have the right kind of insurance or that the insurance company found Gawker liable in such a way that they lost the right to coverage. Either way, that is a Gawker problem and not a problem of legal precedent.


Even still, it's $650k out of Mother Jones's pocket. Unless you're Buzzfeed or a TV network, that's more than any media organisation can easily swallow.

Plus Gawker's case was specifically structured to avoid an insurance payout. A blueprint for others in the future.


> the media company would still be forced to pay the legal fees associated with defending themselves

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.


There is no problem with the next thing. You can report about the sex tape, what is happening (because what was happening is also reprehensible) without releasing the tape itself. You know, they reported on Snowden's leaks and Panama Papers without releasing them. It's not impossible by any means.


I think it ensures that journalists will be reticent to violate the privacy of powerful, public figures... If it's on a sex tape.


I don't think that poster is talking about Hogan.


| Gawker wasn't guilty of either libel or slander because they didn't publish anything about Hogan that was false.

...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.


Jennifer Lawrence's persona and living are based on being extremely attractive, so was it Ok to hack her iCloud and publish her nude selfies? Strangely, Gawker crowd was very upset that no one went to jail for it.


I'm not saying Gawker is OK or not, nor that they are hypcocrites or not.

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)


Hogan can't eat our positive thoughts. He lost a lot of respect among the kind of people that (economically) matter a lot to him, like sponsors and employers.


I get the idea of what you said, but did he, really measurably? plus: the information released about him was accurate; who says you get to have secrets that disqualify you from jobs that you hide from your employer? I'm not saying we want to have a big brother society, but I am saying if you present yourself as wholesome (whatever that means) and you are not wholesome, then you are false advertising anyway, to people who care about that.

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"


Ah yes, society should recognize the positive impacts of investigative journalism. I can hardly see a between the Pentagon Papers and a sex tape!


What if a conservative politician lobbies for adultery being illegal, and then a sex tape emerges of him cheating on his wife? That's important journalism.

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.


> a famous person makes racist comments in it (the Hogan tape!)

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.


There is a difference between reporting on the existence of a sex tape and publishing said tape. None of the examples you gave require the tape to be published.


Do you also think that good taste required reporting on the Mohammed cartoons without actually showing them?


Yes. (But I do think the right to tasteless speech is important and worth defending)


Ah, my question is ambiguous between "showing the Mohammed cartoons would be in bad taste" and "showing the Mohammed cartoons can't be allowed because it would be in bad taste".

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.


You are viewing this wrong because it isn't about tastelessness. It is about infringing on the rights of others. Publishing the Mohammed comic isn't infringing on anyone's rights (at least in the US with our strong freedom of speech and lack of federal blasphemy laws.) However you have a right to not be unknowingly filmed while having sex and have that video published. In the comic example you might be offending someone's sensibilities but that isn't enough to violate their rights like the sex tape example.

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?


> 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.


What are those valuable statements? I don't see any value in publishing the Mohammed cartoons themselves (except perhaps as retaliation against those who went beyond the law to try to suppress them).


As I understand it, Gawker considered the racist remarks so uninteresting they didn't even include them in their original edit or coverage of the sex tape. They only became public as a result of Hulk Hogan suing.


But that's not gawkers business, so ... ?


Are all sex tapes journalism? Including revenge porn?


False. Statements must be untrue to be either libel (written) or slander (verbal). The sex tape in question was real.

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.)


He was videotaped without his knowledge in a situation he had every reason to expect was private. If you then obtain that tape and publish it you're scum. The livelihoods of the employees were ruined by their idiot bosses who thought it would be a good idea to publish the video, not by the persons defending their privacy.


Actually the judge wouldn't let Gawker present evidence from the FBI that both Hogan and the woman knew they were being taped. This means that not only is it possible that they lied on the stand, but with the huge amount required to appeal ($50 million), it's possible that they may get away with perjury.


"Actually" this theory doesn't make any sense once you consider the fact that the racist statements that ended his career were on this tape. He went through his long public career without making racist statements despite harboring racist beliefs, so he knew what impact such statements would have. If he had known he was being taped for publicity, it would have made no sense for him to make what he would know to be public racist statements.

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.


>Actually the judge wouldn't let Gawker present evidence from the FBI that both Hogan and the woman knew they were being taped.

Why? That seems like an important piece of evidence.


I used to listen to Bubba the Love Sponge--the guy who's house the tape was made in--back during that timeframe (before I knew what kind of a horrible person he apparently is).

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.


Cynically, because it was a small-town judge from Hogan's home town who resented NYC-based Gawker. This Politico article spells much of it out:

http://www.politico.com/media/story/2016/03/jury-awards-hulk...


The fact that in private Hulk Hogan is a racist piece of garbage, as is VERY clear if you see a transcript of the tape, seems to me like something which is news, and something that should be reported. During his wrestling career he was marketed as the good guy, a hero, and true American. Publishing the sex tape was going too far, but publishing what was on the tape, that's legitimate journalism.


You are definitely correct that Gawker's behavior wasn't technically illegal, but it was still a shitty thing to do, so I have zero sympathy for them.

> 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.


You don't have to have sympathy for them to want this not to have happened. I don't like Gawker. If you want to argue the world is a better place without them, I'm not going to take the other side.

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.


I agree with you, and my point was that the ultra-rich influencing the media isn't new, and is actually more visible in this case than it normally is.


> and ruin the livlihoods of dozens merely because they were embarassed.

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.


If you are a journalist you know what Gawker is like, it obviously isn't a secret. They are not victims.


They're not bankrupt due to libel and slander. They're bankrupt for sharing stories that many people believe should be better left in private. The specific stories that got them here, regarding Hulk Hogan and before that Peter Thiel, are not libel or slander, as they both involve true information. The issue is whether publishing these things is an invasion of privacy that damages the individuals involved.

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.


Can you cite any examples of libel and slander that have been published by Gawker?


The Hogan lawsuit has nothing to do with libel or slander.


Keep the facts out of this!


Ironically, unlike Gawker's reporting, your comment actually is libelous.


> Libel and slander have no place in a functioning democracy.

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.


Relevant xkcd: https://xkcd.com/1357/


One possible solution is the constitutional right to an attorney in civil cases as well as in criminal, but I don't know how you'd protect that against abuse.


Yes, I believe our system should be amended to ensure that roughly equal resources are available to both parties. The court should require an accounting of all legal fees to be filed. In certain cases, the wealthier party to the litigation should be obliged to pay an amount of money equal to their own expenditures on legal fees into a trust run by the court, which would ensure the less-wealthy party gets equally-solid representation and would prevent a lot of the bullying-by-lawsuit that goes on. Far fewer ridiculous bluffs will come out of international firms like Skadden or MTO when their client knows that they're also going to need to forward that $1,000/hr to the party they're threatening.

Would Donald Trump have sued the journalist who published a piece estimating his true net worth if this was in place?


How about a differet system? Both parties pay into a pot based on how much money they have. Then the only legal advice can they take is set by random rather than by anyone's choice, out of roughly equal quality legal teams paid for by the money from the pot?

Just make it so money cannot buy better lawyers or legal advice, and the court system would be made far fairer to everyone.


The problem is that specific issues need specific expertise. The client should have the right to pick his/her attorney if he has the resources. This keeps attorneys interested in keeping a competitive skillset and a good track record. It's too important to leave to chance. You really need an attorney who understands the subject matter if you want a good outcome. We just need to equalize the buying power so that one side is not deprived of the ability to obtain equal representation.


> In certain cases, the wealthier party to the litigation should be obliged to pay an amount of money equal to their own expenditures on legal fees into a trust run by the court, which would ensure the less-wealthy party gets equally-solid representation and would prevent a lot of the bullying-by-lawsuit that goes on.

Sounds like that could be gamed by lawyers to turn into a full-employment-for-lawyers act.


Why do you need an attorney at all? Perhaps that is the question we should be asking. Rather than figuring out how to give one to everyone for free, and then protecting it against abuse.


Because laws are complicated and hard? there's a reason attorney's typically make decent money



I wonder if you could sue some of the creators of political ads. I would love to see them bankrupt.


And engadget and kotaku and most of the other tech related websites you probably read.

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!


> Also its a good lesson to other sites to police content to ensure no one says anything bad about billionaires.

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...


> There's a brave new world of pro-billionaires media awaiting us.

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...


I vaguely remember (please, someone, correct me if I am wrong) an article by Parker explaining the whole affair - my impression was the truth(tm) was someone in the middle. Or it was just very good damage control by Parker...


Neither are particularly helpful. It's all just noise.


Ziff Davis has possible plans to buy Kotaku:

http://www.recode.net/2016/6/10/11904892/memom-here-s-what-z...

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.


If you like the kind of journalism you currently get from Engadget, Kotaku, Valleywag, et al., you'll still be able to get it even if they're shut down. It's not as though the terms of the decision include the slaughter en masse of the editorial staff and reporters, after all; they'll find jobs elsewhere and continue to get published. Life goes on.


> Also its a good lesson to other sites to police content to ensure no one says anything bad about billionaires.

Or maybe to not publish sex tapes?


they didn't say anything bad about Thiel, the reason he went after them is because they outted him as gay.


Incorrect, that's his sub-excuse. The actual reason is because of Valleywag reporting on e.g. his embarrassing failure of a hedge fund.


Please don't post drive-by insinuations to HN. If you know something, back it up. But please don't lower the quality of discourse here by making things up.


Failure of a hedge fund during the worldwide financial crash, out of which he started two new investment entities (Thiel Capital and Mithril) which are alive and well.

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.


Source?


Gawker may have been terrible, but we should all be a bit concerned at the precedent this sets.

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.


"Precedent this sets"? I think "Don't publish a illegally made video of people in a private moment or ignore court orders to take down the video." to be a rather positive precedent, don't you? That's the sort of chilling effect on media we should all be applauding.

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.


A lot of questionable things are becoming illegal to publish lately.

For example, it's illegal to film what's happening inside a slaughterhouse[1]. Some people are getting into trouble for filming cops[2].

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.

[1] http://www.thenation.com/article/charged-crime-filming-slaug... [2] http://www.copblock.org/1281/filmingpolice/


> A lot of questionable things are becoming illegal to publish lately.

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?


So we destroy an entire news outlet conglomeration?

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.


They weren't destroyed because they did it. It happened because after the fact they refused to admit their fault and make up for it, and instead continued insisting they were in the right.


> 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.

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?


I expect [1] to be overturned. Courts have pushed back against [2] every time it comes up.


Strawman. Nobody is suggesting this is illegal. But you should get your arse sued off civilly if you do this.


Yes, and Gawker had purchased insurance to deal with the ramifications of their actions.

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).


> 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.

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?


People keep saying things like that. But I keep wondering if they have considered the flip side of that, which is are we really comfortable saying that the personal relationships of rich and famous people shouldn't be in the media?

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?


I don't feel that celebrity dating life is ok to publish, actually. It's very seedy and not in the public interest in the average case. Celebrites are fairly open about their disgust for the constant filming of their private life. I would relish it if Brad Pitt or someone else got a similar judgement from the courts.


> I don't feel that celebrity dating life is ok to publish, actually. It's very seedy and not in the public interest in the average case.

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.


> Shouldn't it be up to Theil when and where he outs himself instead of blog like Valleywag doing it for him?

Agree, but it isn't illegal.


But it is wrong. And Theil got revenge by backing a lawsuit which stood on its own merit - which also isn't illegal.


Apparently posting a sex tape is though.


Not illegal. However Liberace gave Thiel legal precedence when Liberace himself successfully sued the Daily Mirror for hinting he was a homosexual.

https://en.wikipedia.org/wiki/Liberace_v_Daily_Mirror

http://www.theargus.co.uk/magazine/nostalgia/pastpresent/445...


Two things. Both Gawker and Thiel are in the wrong here.

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.


Thiel was well within his legal rights. "Both sides are wrong" is a common cop out. False equivalency isn't helping


I wouldn't say they're equivalent.

I find a private, rich entity shutting down a media company much scarier than a media company publishing facts.


How about a wealthy media company acting in a way that exposes them to liability, relying the inability of those they have victimized to seek redress?


I'm not saying Gawker is a martyr here.

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.

https://stratechery.com/2016/peter-thiel-comic-book-hero/


I see and understand where the author is coming from.

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.


Wrong Ben -- that's Ben Thompson, not Benedict Evans.


Oh geeze. Yup. I even read the Twitter follow-up. Too late to edit, though


The judge shut down the company, not Thiel. Or are you saying the court was Thiel's sock puppet? Then you have a much bigger problem.


If you post a profile picture like that when you are a person of public interest, I think there's a fairly good argument that you -have- outed yourself, at least implicitly.


So you'd like it if Gawker was trolling your feed (and those of your friends and family) for what they feel to be sufficient disclosure to post some gossip clickbait?


If I was a public figure (as most billionaires are classified, by the courts), and posted a picture of me on a public profile page, then I would be entirely disingenuous to say "you have no right to know this!".

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".


Who gets to determine if you're a public figure? Nick Denton? You might not approve of his standards or discretion. I hope you haven't posted any 'racy' pictures, or that you don't become dangerously successful.

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.


Your right to privacy is essentially a right to determine what private moments get shared and which do not. It is not a decision you make once (at the time you become a public figure, or when you first post a private picture publicly.) It is a decision you are allowed to make with every private moment.

So this:

"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.


Can you show us where Thiel posted a picture of himself?


Just out of interest - insurance may not have saved them. I have liability insurance etc but it's capped at £2 million. I doubt any corporate insurance plan for Gawker would be uncapped, so they may well have still gone under.


Also a good point, true. But it does put the lie to their claim, under oath, in court, that there was emotional damage suffered and that compensation was sought.


Actually, it could be construed as evidence of real emotional damage. That is, they'd rather see Gawker go under than get more money, because one would make them feel a lot better than the other.


Spinning things as much as you're legally allowed to make as much noise and money as possible is the basis of the whole industry Gawker and Hogan are part of.

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.


They did have insurance, and when that became clear the claims were changed so that their insurancr wouldnt cover it.

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.


I don't understand how this is even possible. It seems to me that the plaintiff should have no say in how you pay for damages save perhaps being able to ask for a public apology.


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).

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.


Me knowing who someone screws is absolutely not in the public interest. A video of someone screwing that they don't want public and more specifically, didn't consent to film is also not in the public interest. Privacy is a right.


I'm posting this on a throwaway account for obvious reasons, so this comment is showing up as dead. Would someone mind vouching it? Thanks!

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.


I've unkilled your comment and marked the account legit, but please don't ask for people to vouch for a dead comment. That's no better than asking for votes, which isn't allowed. Also, please don't post the same comment twice.


Do you have a source on that? I understood that the film was stolen in addition to being taken without the knowledge or consent of Hogan.

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.


Reporting on it isn't what got them taken down.

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).


by extension, the Fappenning was public interest, too. But somehow Gawker is saying "In the summer of 2014, anonymous hackers flooded the internet with private nude photos of major (and minor) celebrities. Two years later, new details show the FBI thinks they identified Jennifer Lawrence’s hacker. But no one’s facing charges."


"hogan is a very public figure"

So it's OK as long as they cross the "very" threshhold?


Which opinion piece are you referring to? I thought that they outed him as gay?


The video WAS illegal because California is a two-party state. You can't record without the consent of ALL parties.

Also, just because it interests you and you're a member of the public does not make it a public interest


Agreed. I don't understand the media's response. Gawker clearly violated the law. The headline they posted the Hulk Hogan video under admitted they were violating the law (or at least going against the council of their attorneys).

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.


This is what confused me so much about the outrage Gawker was trying to incite - didn't they explicitly ignore a court order so they could keep making money on a pornographic video published without the consent of those in it?

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.


> Don't publish a illegally made video of people in a private moment or ignore court orders to take down the video.

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.


> What about that video of Mitt Romney at a private campaign event, where he said some horrible stuff about poor people?

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.


He did say bad stuff about poor people though. He incorrectly assumed that 47% of the US population will never take personal responsibility.

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.


>He incorrectly assumed that 47% of the US population will never take personal responsibility.

How do you know that he was incorrect?


15 years ago, I met a videographer who told me a story about a job he was involved in in filming some internal meeting of the Libertarian Party in America. I realize it's hearsay, and I have no way to verify my statement, but I also have no reason to disbelieve him, given what I know of of human nature and his character in general (as much as I knew him).

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?


The thoughts of a politician running for office ARE in the public interest because that person is campaigning to be elected to be a decision maker in the country.

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.


Hogan has considered running for office multiple times, including saying he wants to be Trump's running mate[1]. Why should we distinguish between a powerful, famous businessman and actor and a politician? Anyone powerful and famous should be a public figure on the same footing.

1. http://www.washingtontimes.com/news/2015/aug/29/hulk-hogan-i...


And how does video of Hogan nailing someone let you know how he would perform as a public official?


Many people believe that violating your marriage vows is an indicator that you wouldn't be a trustworthy public official.


> 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.

And Romney had the right to sue.He didn't what you're point ?


Bollea couldn't win this on his own. He's a millionaire, but that's not enough when you're up against a 100 million dollar new media company. He would be forced to settle for a pittance. Thiel in contrast could afford to refuse all settlement offers and to take it all the way to a jury judgement. It's a messed up justice system, but in this case it worked out alright.


I don't sympathize, but it does reek of "jackpot justice". That's a horrible thing to do, but is it so horrible as to warrant an effective "death penalty" for any company that does it once?

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.


The legal system fundamentally works like that. It's the "shoot one to encourage the others" approach. Not everyone gets made whole but the sort of behavior exhibited by Gawker will likely be a lot rarer in the future.


The literal death penalty also discourages "les autres", but most people also recognize it as woefully excessive for most crimes (if not all), and would recognize the system as fundamentally broken if that system also failed to punish 99% of murderers at all, as the civil justice system fails to punish 99+% of invasions of privacy.


The problem is that a sufficiently wealthy adversary can fund a case with little to no merit and the worst case outcome is having to pay the attorney's fees of the defendant. In the best case you can just bleed your opponent dry. This happened to Mother Jones.


The Mother Jones case is completely different. Florida has anti-SLAPP laws, Idaho doesn't.

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.


The real precedent is obviously "don't piss of billionaires because they have many ways they can crush you".


That isn't obvious to me at least. It was morally, ethically and legally wrong to publish that video. Now they pay the price.


If they hadn't published the Hogan video, the lawyers funded by Thiel would have found someone else who's been wronged by Gawker and the outcome would be similar. The moral really is don't anger the rich and powerful.


I don't see that. There seems to be a conspiracy theory floating around that Thiel was destined to destroy Gawker even if Gawker did nothing illegal, because "money and lawsuits".

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.


And if they weren't in violation of the law they wouldn't have to pay and had their court fees refunded by their counter suit.

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.


I'm not so sure. Maybe "don't be a trash publication that skirts the law, and then defies orders to take things down when told by a judge".


This has been true in America as long as the robber-baron class has existed.


But that's always been a precedent.


Everything you're saying is entirely true however the normal mechanisms that would have protected Gawker were skirted here. They structured lawsuits perfectly so that insurance never kicked in.

Should the company be penalized? Most definitely. Was it worth shutting an otherwise okay running business? Questionably.


... "merely" went looking for reasons to sue Gawker and happened to find a big one.

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.


I'm a free speech absolutist, but what precedent does this set that's new? The person that leaked the "Fappening" items is also being prosecuted, why should a media publication like Gawker not be held accountable? No one really seemed to have -big- issue with this until Thiel was in the picture.


Yes, exactly.

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.


Firstly, the ACLU is open about it.

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.


The ACLU is only public about it because part of their mission is to raise awareness. They have PR blitzes to publicize new cases they are taking on.


> No one really seemed to have -big- issue with this until Thiel was in the picture

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?


There is a name for weaponization of the legal system, it is called 'lawfare', and it has been going on a long time. This was a legitimate case, not some strange and arcane proceeding based on a hitherto unknown statute; it may be the case that Thiel was 'woken up' by the post about him, and has since been keeping a lookout to stop Denton's greed from harming more people. Denton isn't running a charity.

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.


> 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.


> The tape of Hogan had racist comments on it, which are arguably in the public interest

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.


If Thiel was funding losing suit after losing suit after losing suit, this would be relevant.

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.


Because the fourth estate sees this as a threat to their interests.


We have limits on speech when it comes to private information. Should "free speech" allow gawker to publish a private citizen's sex tape? There is no "in the public interest" argument to apply here.


Ues there is - hogan is a public figure who is involved in politics and has repeatedly announced his conservative/be faithful/young-people-have-loose-morals bullshit.

Hence cheating on his wife was news, the public should have been informed, and unlike that fappening this wasnt stolen.


I'm not sure why you think reporting that Hogan was cheating is what Gawker was sued for. Plenty of people have done that, with no repercussions.


Cheating on his wife may have been news (I disagree, but just for the sake of argument let's say that's true). The gratuitous porn video was in every way NOT news.

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.


You can do that without releasing the tape


>It's sort of like defending the free speech of terrible groups like the KKK.

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.


> 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.


In all mentioned cases the sex becomes sexual assault, which is a felony. It's very different from adult people consensually enjoying themselves.


Sorry? Engaging a prostitute is sexual assault?

How exactly is it "very different from adult people consensually enjoying themselves"?


> 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)?

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.


"Whataboutism" is the bedrock of a legal system like ours. It's how you consider the consequences of a law in different edge cases that aren't as clear-cut as the current case.


>What if the sex is illegal (see: Eliot Spitzer)?

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.


Do let us know when that situation happens.


http://gawker.com/5741535/police-find-photographs-of-berlusc...

(An irony that the first site that came up was Gawker)


So where are the photos, like Gawker had on their front page?

All I see is a report that it exists. Neither of the two links in the tweet were to stories showing the photos.


I'd be more concerned about the precedent it set if Gawker had won.

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.


Why?

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.


For those who don't see anything wrong with this because Gawker is Gawker, I present to you a very similar case involving Mother Jones:

http://m.motherjones.com/kevin-drum/2015/10/billionaire-sued...

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.


> Gawker may have been terrible, but we should all be a bit concerned at the precedent this sets.

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.


How about the opposite precedent? The idea that if your adversaries don't have money, you can seemingly publish whatever you like (legality and morality be damned) knowing they can't afford to sue you/defeat your large legal team?

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.


Well put. I think a silent majority of journalists are thinking this while their less introspective colleagues reduce the situation to David vs Goliath.

I'm with David Friedman on this.

http://slatestarcodex.com/2016/06/05/ot51-alien-vs-threadato...

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.


Are you suggesting the Hogan suit was groundless?


It wasn't, but the damage amount is excessive.


I would say the contrary would be problematic.

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.


It's interesting that it was actually higher than what the plaintiffs requested. It wasn't clear to me who sets that, the judge or the jury?


Judges almost always set reward. I wouldn't be surprised if it was a heavy slap aimed at not obeying the court order to take down the video.

http://criminal.findlaw.com/criminal-procedure/sentencing-la...


How was it excessive?


I agree somewhat; the judge still could have bankrupted Gawker without taking too much off the number


The issue I have with it is that money from an external source that had nothing to do with the suit was funnelled in to use it as a weapon.

Thiel had an issue with Gawker, Thiel should have taken it to Gawker.


The issue I have with it is that money from an external source that had nothing to do with the suit was funnelled in

This is incredibly common, e.g. it's basically the entire job description of the ACLU. Why is it different in this case?


> 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".


Because the ACLU does it in the open, rather than in secret?


Rights aren't only protected if you exercise them publicly.


No, but one of the reasons "maintenance" is or was illegal is because the defendant has a right to know their accuser/opponent and their motivations, hence discovery and other pre-trial proceedings, so they can best defend themselves.


Why have a problem with that? If Gawker was not in the wrong that would've been money wasted. It's not like Hogan/Thiel wore Gawker out by whittling them down with frivolous lawsuits until they couldn't defend themselves anymore.


That's precisely what Thiel's doing though -- He just hit the jackpot with the Hogan amount. He's also funding several other suits against Gawker including one from someone who claimed to have invented email. He's like a terrible patent troll for journalism.

The Gizmodo article that Thiel thinks is worth suing Gawker over: http://gizmodo.com/5887480/the-inventor-of-email-did-not-inv...


What jackpot? They could have gotten the insurance payout. Except they dropped that part of the suit specifically so Gawker could not use the insurance it had purchased for this reason.


The jackpot in the sense that Thiel's goal was to litigate Gawker into bankruptcy and the Hogan case played out perfectly for him.


Ah ok, that is not something I've seen mentioned anywhere else.

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.


Thiel's plan was exactly to wear down Gawker by frivolous lawsuits until either they collapsed or he lucked out; that's why his legal team was searching through thousands of articles looking for people they could contact to drum up a case or fund an existing case, including the 'father of email' case. Court cases are not deterministic noise-free processes.


How is this different than the ACLU looking for an ideal test case for a civil rights issue?


The ACLU typically expands rights and free speech while this is somewhere on the opposite side of the spectrum.


Citing the ACLU, if Hulk Hogan’s sex tape was somehow newsworthy, then distributing it on the internet would come under the protections of the First Amendment, and Gawker would have a right to publish it. But the jury found that this case was not about the Hulk as a public figure and that the video had no news value. The Hulk, therefore, enjoys the same rights to privacy as everyone else.


Yes, a Florida jury decided that Hulk Hogan wasn't a public figure but that the damage to his career from a sex tape was worth $55 million. Do those things seem slightly contradictory to you?


Florida jury decided that Hulk Hogan wasn't a public figure

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.


I'll just note, the ACLU isn't saying that there's a difference -- they're saying the Jury found that there's a difference. I highly doubt the ACLU agrees, especially considering that the Florida Court of Appeals already found the video newsworthy;

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's called 'maintenance' and it was made illegal under common law of England 500 years ago

http://overlawyered.com/2016/05/champerty-maintenance-explai...


Yes, in a time before judicial independence and separation of powers were implemented.


The other side to that argument is, people who are wronged by Gawker need at least a billionaire to be able to get their day in court.

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.


But isn't it the case of any civil liberty lawyer rushing on a case to push his agenda or create a jurisprudence?


So how do you propose preventing that without outlawing, for example, the ACLU, NAACP, etc.?


I think the damage was not worth putting tens (hundreds?) of people out of a job, most of them who had nothing to do with the Hogan fiasco but are still being punished for it, putting their livelihood in jeopardy for the emotional comfort of a billionaire. The people responsible for the piece should have been personally held responsible.


Regarding people losing their jobs - that is a result of the terrible judgement and values of the leadership of Gawker. They are not being 'punished' for anything. Do you think that the people at Ford were 'punished' when the leadership of Ford made bad decisions that cost people their jobs?

"emotional comfort of a billionaire"

That is very dismissive. Are people worth less to you when they have more money?


> Do you think that the people at Ford were 'punished' when the leadership of Ford made bad decisions that cost people their jobs?

Yes


How can you justify that position? There are consequences to our choices, but they don't always follow a moral principle. If I have two job offers and choose the company that ends up going bankrupt, I'm not being punished. If I'm a farmer and plant according to weather predictions which prove false, losing crops and revenue, that might be bad luck or bad judgement, but its not punishment.


Those people knew what kind of garbage the site published and decided to hitch their wagon to it. If I join a company that is in the news for doing things that sound like it might get the shit sued out of them and they eventually get sued, should I be surprised?


I am about as worried about gawker employees losing their jobs than I am about ISIS fighters losing their jobs. These guys are making money outing people and publishing sex tapes.


Is this the Clerks "contractors on the Death Star" argument? [1]

They knew who they were working for. Lie down with dogs, etc.

[1] http://www.whysanity.net/monos/clerks5.html


That's the breaks when your corporation makes criminal mistakes and it is proven in a court of law, unless you are a bank or financial firm or politician.


Maybe Gawker should have thought of its employees then.


Yeah, pretty much.

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.


There will be no ceiling effect because real journalists stay within the bounds of the law. Equating a self proclaimed gossip website with real reporting is disingenuous and insulting to journalists.

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?


I like this precedent. Even celebrities have a right to some privacy.


Gawker can say or publish whatever they want and the Feds won't come throw them behind bars, but free speech doesn't make someone immune to ALL repercussions. You are free to go tell your boss whatever you want, but it might impact you financially. You are also free to spread rumors about whoever you want but you might get dragged into civil court and fined if you unjustly harm that person.


They already have, in many cases. The Aryan Nations was shut down due to third parties funding a (legitimate) lawsuit.

https://www.splcenter.org/seeking-justice/case-docket/keenan...

Think tanks have been subpoenaed over AGW skepticism:

https://www.bloomberg.com/view/articles/2016-04-08/subpoenae...

Media organizations have been prevented from reporting on Hillary Clinton during a political campaign:

https://en.wikipedia.org/wiki/Citizens_United_v._FEC

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.


It's worthwhile to remember free speech is not absolute. There are several cases where it's not considered free speech, here are some examples:

Obscenity Fighting words Defamation (includes libel, slander) Child pornography Perjury Blackmail Incitement to imminent lawless action True threats 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.


I agree. I never read Gawker or any of its sites, they were all garbage. And the Hulk Hogan sex tape was scummy garbage that I never had any interest in. But it also isn't that different from lots of other celebrity leaks that have been published before which have not resulted in damages that ruined the publishers.

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.


> 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.

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.


> I agree. I never read Gawker or any of its sites, they were all garbage.

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.


>What if the Koch Brothers decide to start funding lawsuits against Nature or Science magazines that publisher articles about global warming?

If those articles were somehow actually legally libellous, that would be fine. But that seems unlikely.


Let the Koch brothers sue whoever they want. They can in this country. If they want to waste their money on frivolousness and get thrown out with contempt + paying the other side's legal fees than so be it.


It's precedent on both sides.

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.


I don't believe that this case set any new precedent.


I think they may have meant 'precedent' in some colloquially sense of the word, not the legal definition. Maybe "Successful action which encourages others to attempt the same" or something like that.


If you care about free speech as it relates to porn, then this is nothing compared to some of the other limits put on free speech. Consider the Australian guy who was convicted for having sexualized drawings of the Simpsons.

Edit: grrrrr autocorrect


You're making a common mistake here about free speech. Free speech in the First Amendment is a restriction on the government, not individuals. The reason we treasure it so much is because of the history of government's in Europe and elsewhere restricting the speech of individuals. Having experienced the perils of government censorship themselves, the Framers put this into the Constitution. Free speech has never meant "You have a right to say anything you want without consequences".


what precedent?

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.


I think the precedent OP is concerned about is not about Hogan specifically. Thiel probably doesn't give a shit about Hogan's sex tape. He probably dislikes Gawker for other reasons (maybe general tone or content, or maybe something specific in a particular article by one of Gawker's subproperties; who knows?), but he took advantage of the opportunity the Hogan case provided to eliminate a media outlet.

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?


thiel couldn't nail them when they wrote about him. it was in bad taste, but totally defensible. they crossed the line when they posted a private sex tape without consent. if you can defend that, you can defend revenge porn (that is, you can't).

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.


I've heard Thiel holds a grudge against Gawker for having outed him without his consent; the latter certainly happened [1], the former I wouldn't know how to confirm.

[1] http://gawker.com/335894/peter-thiel-is-totally-gay-people


Free speech is the opposite of that.


Freedom of speech protects you from government persecution.

That's not happening here.


The Sixth Judicial Court of Florida is part of the government.


Adjudicating between two private parties. Or are you advocating for privately-owned courts?


Adjudicating according to government made laws.

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 think you may be over-simplifying.


I only wish people were as ardently Constitutionalist when it came to other amendments (e.g., the one after free speech).

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.


Yes, I agree. This is a worrying sign of what the future holds.

But also I hated Gawker, so, difficult to feel too sorry about this particular development.


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