Jeff Bezos in January 2018. Photo courtesy the Seattle City Council.
When the world’s richest man goes mano a mano against America’s biggest scandal sheet, something interesting is likely to happen. Soon enough, we will see whether Jeff Bezos has set in motion the chain of events that will destroy the National Enquirer – or the chain of events that will save it.
Last week, Bezos published an attention-grabbing essay on Medium, in which he described the efforts of the Enquirer’s publisher, American Media Inc., to force Bezos to call off a private investigation into how the Enquirer obtained a collection of his private text messages. In an email that Bezos shared verbatim in his post, AMI’s chief content officer, Dylan Howard, observed that the Enquirer had 10 private photographs exchanged between Bezos and Lauren Sanchez, the woman with whom Bezos has been seen before and after separating from his wife. Those photos were said to include a “below the belt selfie” of Bezos.
Bezos decided to publish the full description of these photographs, “despite the personal cost and embarrassment they threaten,” rather than capitulate to AMI’s demands under threat of their publication. While this may have been a reasonable way for Bezos to avoid the expense and aggravation of a lawsuit, it also may have kept AMI from walking into the same trap that has already proved the undoing of at least one other major publication.
Gawker Media lost a lawsuit in which Terry Bollea, known professionally as Hulk Hogan, successfully charged that the site had violated his privacy. The company faced a $140 million judgment, which it initially appealed before ultimately reaching a settlement with Bollea. At that point, however, Gawker had already filed for Chapter 11 bankruptcy, and its new owner had shuttered its flagship website.
As I wrote at the time, Bollea was a public figure, and Gawker was legally free to editorialize about his sex life to the extent that he brought discussion of his exploits into the public eye through his own self-aggrandizing commentary. But Gawker crossed a line by posting a two-minute extract of a clandestinely recorded video of Bollea and a romantic partner, including 10 seconds of explicit sexual activity. Bollea had every expectation of privacy in the situation, especially as he subsequently claimed the video was created without his knowledge or consent.
Tom Scocca, a former editor at both Gawker and the formerly Gawker-owned sports site Deadspin, was not alone in blaming Peter Thiel for Gawker’s demise. Thiel, who co-founded PayPal, largely funded Bollea’s lawsuit. It is true that Thiel had reason to want Gawker to suffer, as the publication had disclosed his sexual orientation without his permission years prior. But, as Scocca’s post-mortem inadvertently makes clear, Gawker’s own misbehavior is what ultimately took the publication down.
Scocca argued in his column that “The message […] that Gawker had this coming, that the site was—to some degree, depending on how sympathetic the writer is trying to pose as being—responsible for its own downfall” was false. But the earlier story Gawker published about Thiel himself did not serve, and could not have served, as a means for Thiel to attack the company. Whether or not it was in good taste, that article was squarely protected by the First Amendment. But Scocca includes a telling excerpt from a circuit court hearing, in which Judge Pamela Campbell ordered that Bollea receive immediate access to Gawker’s assets. Gawker’s lawyer requested a temporary stay, which the judge repeatedly denied. What Scocca does not make clear is what he imagined Judge Campbell would have to gain from shutting Gawker down in the absence of any infraction.
Thiel provided the resources to fund the lawsuit that took Gawker down, but Gawker itself provided the misconduct.
Now Bezos, who started and runs the world’s most valuable company, has engaged in an extramarital relationship – though whether he and Sanchez had already separated from their respective spouses before beginning a relationship is disputed. Bezos is also, indisputably, getting divorced. Since Bezos’ home state of Washington is a community property state, it is possible that MacKenzie Bezos could gain full control of a significant portion of Amazon stock as part of the divorce proceedings, potentially decreasing her soon-to-be-ex-husband’s level of control.
This story is newsworthy, and the Enquirer has every right to cover it. Jeff Bezos is also a public figure, which means that nearly anything published about him without actual malice is legally protected. Even the National Enquirer’s decision to publish the text of Bezos’ leaked private messages probably would have been on safe legal ground.
Yet if the Enquirer had made good on its threat to publish misappropriated images of Bezos in an unclothed state or engaged in sexual activity in a private setting, it seems likely that the publication would have exposed itself to a crippling invasion of privacy claim under the standards established in the Gawker case. If you think Thiel had the resources to fully prosecute such a case, imagine what Bezos could have done.
Also consider Sanchez’s situation. If the Enquirer had published pictures that included her – as, according to the email Bezos shared, at least three of the photos AMI mentioned did – the case against AMI would have been even stronger. Didn’t Sanchez also have the expectation of privacy when sharing and receiving these intimate messages? Sanchez is a former TV anchor, but is not nearly as public a figure as Bezos, making it even harder for AMI to argue that the invasion of her privacy is, in reality, protected speech.
AMI already faced significant exposure thanks to New York prosecutors’ efforts to build a case that the publisher’s “catch and kill” practices as they related to President Donald Trump during his candidacy amounted to illegal campaign contributions. AMI entered into a nonprosecution agreement with federal prosecutors to gain immunity from that probe in exchange for a promise not to commit any criminal activity for three years. The accusations from Bezos may have put that agreement at risk.
Whether AMI’s conduct was extortion, as Bezos claims, or a legal business negotiation, as AMI’s lawyers have insisted, strikes me as a fairly close legal question. Depending on how prosecutors or courts answer it, AMI may still be in jeopardy. But it seems clear that if the publisher had fulfilled its threats to publish the images in questions, it could have easily met Gawker’s fate. In this sense, Bezos may have saved AMI from itself.
Even the most public person has a right to expect images of this type to remain private, and publishing leaked images of private intimate activity conducted in private settings is trafficking in stolen goods. To the extent any segment of the press believes public figures forfeit all privacy, as does anyone in proximity to them, the Gawker case sent a strong message that they are wrong. These outlets would be well advised to listen.