Six Thoughts on Free Speech and the Bankruptcy of Gawker

by Dan McLaughlin

It’s hard to say something about the bankruptcy of Gawker Media — following a lawsuit by Hulk Hogan, secretly financed by PayPal founder Peter Thiel — without saying everything about it. This story has so many layers it’s like a law school exam for spotting issues. Let me offer six observations:

1. Damaging or destroying Gawker and most of its related properties is a good thing (not that Gawker will cease to publish, as it is selling its publications to a new buyer). Sometimes, a good thing should not be done because it sets a bad precedent — but we can still take a little joy from seeing it happen. Nobody deserved this more than Gawker.

That’s not because Gawker and its writers have bad opinions. Bad opinions can have bad consequences in the real world, but in a free-speech society, there should be plenty of space for even harmful or daft opinions. That includes Gawker’s own persistent hostility to free speech, like Adam Weinstein calling for climate-change “deniers” to be jailed. Rather, it’s because Gawker itself frequently engaged in efforts to destroy the lives, careers, and businesses of specific people, often over their speech and opinions. It is telling that when it became obvious to Nick Denton that a billionaire was pursuing a personal vendetta against his website, he wasn’t immediately able to determine which one. Sometimes, Gawker’s campaigns have come in the form of championing or instigating boycotts, firings, and the like, as the Free Beacon has documented. Sometimes, as happened to Peter Thiel and others, it comes in the form of campaigns against the private lives of private citizens, even a rape victim. Both types of campaigns deter individuals from participating even collaterally in public debate, and therefore chill the exercise of free-speech rights. The First Amendment protects our natural right of free speech from the government, but if our social values stifle free speech, there will be little for the government to threaten.

2. Thiel’s motivation for his campaign of revenge against Gawker is the site’s “outing” of him as gay. This seems to me an entirely understandable and sympathetic motivation for seeking revenge. Unless you are at the very highest level of public responsibility (presidents, Supreme Court justices, senators, and governors), nobody has a right or reason to expose your sexual orientation or preferences to the public against your will. Whatever your concerns about billionaires’ engaging in ideological campaigns to destroy critical journalists, this particular case involves retaliation for a very personal harm of minimal news value, by means of funding a legal attack on similar practices aimed at other private citizens.

3. Gawker Media is a corporation — or rather, part of a family of corporations and limited-liability companies, a number of which are foreign entities. Specifically, Gawker was originally incorporated in Hungary, but the parent company is now in the Cayman Islands, likely for reasons of avoiding taxes, and Hogan has charged that the company is hiding assets in related entities overseas to avoid paying the judgment. The parent company itself has not filed for bankruptcy. Anyway, if you hated the Supreme Court’s Citizens United decision because you think corporations shouldn’t have free-speech rights and are particularly incensed about the influence of foreign corporations, why should you care about Gawker? Or maybe you should rethink your view on that.

And don’t tell me Gawker isn’t involved in elections or politics — just look at its laughably failed effort to take out Cory Gardner in 2014’s Colorado Senate election. Don’t tell me either that Citzens United had nothing to do with free speech or journalism (heck, the Citizens United organization fed ABC News a major story just last week about Hillary Clinton hiring an unqualified donor to a sensitive intelligence post).

4. It’s kind of noticeable how little overlap there is between commentators upset at Thiel and those who objected to Michael Mann’s notorious lawsuit against this magazine, Mark Steyn, and the Competitive Enterprise Institute over criticisms of his “climate change” advocacy. That lawsuit presents a much more direct threat to free speech on matters of public concern than a lawsuit over a private sex tape, and is by no means the only legal attack of its kind on climate skeptics. To their credit, a number of mainstream media organizationsnot including Gawker Media — have filed amicus briefs in the D.C. Court of Appeals asking the suit to be dismissed. So have a coalition of conservative-leaning media. But at the level of individual writers, the case has not produced a hue and cry over its implications for free speech. Steyn is raising money on his website for his own defense — how many people freaking out about Thiel’s lawsuit have supported him or NR?

5. As David Harsanyi has noted, third-party funding of litigation is hardly a thing Thiel’s critics object to:

Every contemporary major lawsuit of any political consequence has probably been funded in some way by a third party. If ​Thiel is a problem, so is the pro bono legal work of wealthy lawyers who donate their time and resources to causes that move them. So is contingent litigation. So are class-action lawsuits. So is every advocacy legal group. Start with the ACLU, which is backed by hundreds of One Percenters and works to enforce its own norms of “decency and respect” when it comes boys’ and girls’ bathrooms and leads crusades to do away with the Free Exercise Clause.

The costs of litigation, in general, are a threat to all kinds of businesses and civic groups in this country, and to free speech and free exercise of religion in particular. Much of that litigation is financed by people with an axe to grind. I wonder how many people awakening to that threat now will go right back to sleep.

6. It’s worth recalling that the lawsuit at issue here is about the publication of a sex tape that was not just alleged to be secretly recorded without the consent of the participants, but was subsequently — according to police reports — stolen, and only delivered to Gawker after a failed effort at blackmailing Hogan. If Gawker had made an animated video of Hulk Hogan having sex (please don’t ask me why anyone would want to), there would be no lawsuit. The First Amendment protections of invasions of privacy and publication of stolen property are both matters of longstanding controversy, and almost nobody defends a First Amendment right to blackmail. (That said, few of Gawker’s defenders seem irked that Texas is criminally prosecuting David Daleiden for using a fake ID to do undercover journalism exposing Planned Parenthood). The courts have tended to come down on the side of allowing publication (rather than issuing “prior restraint” orders), but generally with the caveat that harm from the theft and invasion of privacy itself can be remedied through civil damages lawsuits like the one here. And a media that goes into a defensive crouch to protect the sort of conduct Gawker engaged in here is ultimately a threat to social acceptance and legal protection for a free press.

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