Peter Thiel in 2014. Photo by Dan Taylor, courtesy Heisenberg Media.
If a billionaire established a fund to help poor tenants sue their crooked landlords, a large part of the American press would surely cheer this act of philanthropy.
But if said billionaire instead uses his fund to help poor former celebrities sue journalists who shattered their serenity and upended their lives, these same news organizations see an assault on the First Amendment. So much for journalistic perspective.
Gawker Media got what it deserved when a jury ruled that it owed Terry Bollea, better known by his stage name, Hulk Hogan, $140 million for gratuitously publishing a video that showed Bollea having sex with the then-wife of his then-friend. As I wrote in March, Gawker was free to editorialize on Bollea’s sex life to the extent the celebrity himself brought it into the public sphere as part of his persona’s braggadocio. But it was not free to exploit images of Bollea and his partner for commercial gain without their consent.
The case made headlines again recently due to a pair of developments. The first was that a Florida judge upheld the jury judgment against Gawker and its founder, Nick Denton. The company announced shortly thereafter that it had filed for bankruptcy and would put itself up for sale.
A few weeks prior, it emerged that Peter Thiel had largely funded Bollea’s lawsuit. Thiel, who co-founded PayPal, has acknowledged that he not only funded Bollea’s legal battle, but those of a variety of plaintiffs complaining of ill treatment by Gawker. He told The Wall Street Journal that he contributed about $10 million to Bollea’s suit, setting off fierce debates within Silicon Valley and the media.
Thiel himself fell victim to Gawker years earlier, when it chose to disclose to the world that Thiel is gay, a fact then known only to his close personal friends. Did the revelation matter to anyone? Ultimately no – except to the people counting clicks on Gawker’s website and to those trying to sell advertisements based on those clicks. But Thiel felt justifiably violated by the story.
Thiel’s involvement in the Bollea lawsuit has created outrage in certain quarters ever since Forbes broke the story in late May. It is no surprise that Denton promptly condemned Thiel’s actions. But third-party litigation funding is perfectly legal and quite common in the United States; mostly it comes in the form of contingency fee arrangements offered by plaintiffs’ attorneys. Simply funding someone else’s suit without expecting any compensation is no different than that wealthy individual who wanted to help poor tenants – something the Legal Aid Society solicits regularly.
That has not stopped some news organizations of condemning Thiel’s actions. A recent Wired story carried the headline: “Gawker’s Bankruptcy Is How A Free Press Dies, One VC At A Time,” and asserted that “[Thiel] just wanted to buy a muzzle. Now he has.” Bloomberg claimed that “Defending free speech […] means taking Gawker’s side.” Amazon CEO Jeff Bezos, who also owns the Washington Post, expressed support for Gawker. Pieces critical of Thiel ran in Fortune, Vox and The Guardian, among other outlets.
Journalists dislike it when they think they are picking on someone smaller than they are who actually turns out to be much bigger. They want the right to pick their battles in such a way that they do not get squashed. Their efforts would be better spent in concentrating on stories that are genuinely newsworthy and checking both their facts and their rights to use someone else’s property before publication.
The First Amendment protects everyone, not just journalists, who in this country are a self-selected group anyway. It guarantees that we all have a right to speak or publish – as well as hear – almost anything that strikes our fancy, as journalists often forget when discussing the Citizens United decision. It protects against government action that would restrict or inhibit our right to such free communication.
But the First Amendment does not protect any of us from the consequences of our own bad choices. If we knowingly print something false, defamatory and financially injurious to another person, we can be sued for libel even if the other person is a public figure. If we invade the privacy or maliciously use the property of another individual for our own commercial purposes, we can owe damages for this offense too.
Bollea never gave permission for the release of images recorded in private. As far as we know, neither did his partner. She may have privately settled with Gawker, but that is just my speculation. We do know that Gawker’s flimsy justification that the world had some public interest in seeing Bollea’s sex act carried even less weight when applied to her.
Gawker will put itself up for sale, and the proceeds – net of other debts – will likely go to Bollea. Once that process plays out, the company’s former journalists can go seek employment at the many news organizations that rushed to their former employer’s defense. Good luck with that.