Gawker is dead. And we’re all supposed to have gone to pieces over it.
Well it isn’t, and I haven’t
Gawker isn’t dead just because the switch was thrown on the content pump while the $140 million judgment against it wends its way through appellate courts. We live in a young century that is already on its third Spider-Man reboot. I somehow doubt so famous a property—much less such an infamous one—will long lay in repose. The brand of Internet Awful it invented is waxing, not waning, and the unmoored Millennial miserables it caters to are only tightening their grip on the culture.
Notwithstanding that, many in the press have seized on this moment before Gawker’s zombie resuscitation to eulogize it. The most common mood seems to be First Amendment–fueled grief cut with plenty of “to be sure”s about the site’s poor taste and questionable editorial judgment. This from Trevor Timm, director of the Freedom of the Press Foundation, strikes me as the modal lament:
The Hogan case certainly brings up a lot of tangled questions about the tension between privacy and free speech and it’s certainly understandable that many people have found Gawker’s decision to publish a clip of Hulk Hogan’s sex tape deplorable. (It’s also true that Gawker did a lot of exemplary investigative journalism.) But condemning a specific story and cheering the demise of a media organization at the hands of the legal system are two very different things.
I’m a big fan of the First Amendment, and I’m a big fan of privacy, and I don’t think the Gawker case raises any questions—tangled or otherwise—about the tension between the two.
Hulk Hogan (whose real name is Terry Bollea) was filmed, without his consent, having sex. According to the anti-harassment organization Without My Consent, the tort of intrusion has three elements under Florida law: “(1) there must be a private quarter; (2) there must be some physical or electronic intrusion into that private quarter; and (3) the intrusion must be highly offensive to a reasonable person.” What happened to Hogan, who was filmed by an acquaintance while a guest in his home, is pretty much per se intrusion, and Hogan ultimately settled a lawsuit against said acquaintance on that score.
He sued Gawker, which obtained and published the video, on a related tort, covering “the publication of private facts that are offensive; and are not of public concern.” Gawker’s lawyers argued that Hogan’s public boasts about his sex life made it a matter of public concern, which seems to me facially idiotic. But even if you buy it, there is no plausible case for the newsworthiness of publishing the tape itself. Indeed, if Gawker had merely obtained the tape, viewed it, and written about its contents, they’d probably still be happily cranking out posts such as “The Worst 100 White Men, Ranked.”
A. J. Daulerio, the former publisher at Gawker who made the decision to run an edited version of the Hogan tape (and the same man who flippantly replied “Four” when asked in a deposition how young a participant—or victim—in a hypothetical sex tape would have to be for Gawker to decide against running it), acknowledged this during the trial. “Mr. Bollea’s penis had no news value, did it?” Hogan’s attorney Shane Voght asked. “No,” Daulerio replied.
The distress over the fact that Hogan’s case was bankrolled by the billionaire Peter Thiel strikes me as overcooked, too. In a sanctimonious post entitled “Gawker Was Murdered by Gaslight,” Gawker writer Tom Scocca asks for our pity. “If you want to write stories that might anger a billionaire,” he writes, “you need to work for another billionaire yourself, or for a billion-dollar corporation. The law will not protect you. There is no freedom in this world but power and money.”
It strikes me that this worry could easily be turned on its head. What about Gawker’s many victims without the financial resources to chase a massive media company through the courts? What about, for instance, the Indiana University student who woke up one morning to see Gawker had published video of her drunken sexual encounter in a sports-bar restroom—an encounter Daulerio himself later admitted “was possibly rape”? Would media mavens be dropping their monocles if Thiel had bankrolled efforts to seek relief for her humiliation?
Look, we should absolutely be worried about “lawfare,” about a world in which frivolous litigation is used to intimidate or silence critics. But many states, including Florida, have statutory protections in place against such suits. And in any case, as meticulously noted by Kim Strassel in her recent book The Intimidation Game, the real Lord of Lawfare is the State, whose resources make Thiel’s look like a rounding error—and who have guns.
It is possibly true that, alongside its cheap Dadaism and leering nihilism, Gawker did, as Timm writes, “exemplary investigative journalism.” But it seems superfluous to point out that no piece matching that description led to a successful $140 million lawsuit. And nothing about the Hogan verdict precludes other outlets from publishing important investigative work—even work that afflicts the comfortable—so long as it doesn’t run up against casebook definitions of invasion of privacy.
I suppose I shouldn’t close without noting that I made it onto the pages of Gawker a few times myself, and never with fellow feeling. Most vividly, I recall being plunked by Gawker’s perfectly named Max Read for suggesting there was something creepy about Planned Parenthood sympathizers’ hacking the Susan G. Komen Foundation website in response to the latter group’s gall at turning off the spigot to the former.
Bizarre is a view of reproductive privacy that considers the dismemberment of fetuses none of our business but marks footage of Hogan’s hulk, as it were, a public good. R.I.P.