For the same reason that I oppose holding book burnings of copies of Mien Kampf: whether or not Gawker was a good site, censorship by means of bankrupting the publisher in court is a bad thing and sets a horrible precedent.
4 Likes
Sure context is important, but you make the mistake of making context and subtext to be more important than the actual text.
Gawker deserved a large judgement against it for its actions in wrongfully publishing the sex tape. Was that a $100 million mistake? The jury thought so
In the big picture, yes, absolutely. The context of what Thiel did and why he did it are more important to society than the details of the trial. Whether or not the jury was right to award $100m is less important in the long run than the principle of a billionaire using a proxy and our court system to bankrupt a media outlet to punish them for embarrassing coverage and send warning to other outlets. That’s far, far more important that Hogan and his sad, gross humping.
Just like the principle at stake in Hustler’s victory over Falwell was far more important than the financial stakes of the individual trial or the risk of losing a porno magazine.
My question above was not rhetorical, by the way. In my hypothetical, is the fact that Gawker’s employees were actually guilty of the crimes they were punished for the end of the story? Or is the context at least as important in the bigger picture?
1 Like
Hypothetically, what if Hogan had hired the same lawyers with the same strategy and Thiel wasn’t involved at all. Just lawyers who wanted to get every dime possible (as they get a nickle of every dime). Does this action now become acceptable or not? Does the court share any responsibility, after all they agreed that Gawker was in the wrong and assessed the penalty?
Again, I am trying to separate what happened from the background motive. I can agree that what Thiel did was sneaky and for revenge. But at the same time I am having trouble defending Gawker’s actions at all.
2 Likes
In not interested in hypotheticalls. I see you’re trying to pose a slippery slope reductio ad absurdum for this and I don’t see how that’s useful.
To me, your argument boils down to “Gawker could have and should have escaped judgement but for Thiel” and I don’t buy it. To me, there’s no getting around the fact that Gawker did what it did and was rightfully found liable. They may have gotten away with it but for the fact they had the bad luck of violating someone who was able to take the case to its resolution. That’s why Thiel’s involvement is a great big “so what” from me. The wrongdoing here is entirely on Gawker’s side.
So for me the lesson here is “don’t post sex tapes”.
2 Likes
Miranda rights emerged from a case involving a scumbag who robbed, kidnapped, and raped a developmentally disabled woman. Edge cases are where the true tests of democracy often occur, and despite my personal feelings about Gawker, I believe the matter is one of extreme importance for a free press.
5 Likes
I think this is what triggered a lot of attention back then, as a lot of people were suspicious about the heavy-handedness of the approach, and how the lawyers involved far outstripped Hogan’s means and motive. It was such heavy-handed overkill that nobody thought it was Hogan to begin with (in fact, it hurt Hogan more than if he had gone it alone, and he got less out of it according to some observers).
He could have been a vindictive idiot, but in the end it turned out he was just a tool.
5 Likes
If they had done everything the same and Thiel wasn’t involved, I would think that this was a really harsh judgment for something of this nature, but the same speech concerns wouldn’t have been at play.
But that question gets at the real motives here and what can happen when the real party in interest isn’t the plaintiff. If Hogan had been bankrolling his own case or his lawyers were working on pure contingency, it is an almost certainty that the case would have settled for a fraction of what was awarded, and Hogan would have actually been able to collect more of it. By removing the insurer, Hogan’s lawyers made it much, much more likely that a judgment would bankrupt Gawker and decreased the chances of Hogan collecting.
That’s most definitely not my argument, so I guess I won’t take it personally that you’re not buying it.
My argument is that context matters, and sometimes matters more than four corners of the case at issue. That’s what my hypothetical was getting at–whether or not Gawker was actually guilty of the offenses that that the court held them liable for (pardon my mixing of civil/criminal, but you get the idea) is beside the point when there is a larger issue at play.
To put a fine point on it, the lesson you take from this isn’t really the issue. The issue is the lesson Thiel intended to send to media outlets that cover him in a way he doesn’t approve of. That’s the problem.
5 Likes
Then what’s the solution?
I’m not saying it involves the workers seizing the means of production, but I’m also not saying that it doesn’t involve the workers seizing the means of production.
3 Likes
I don’t think this is a new thing; just extending centuries-old practice to the Internet.
If you make a rich man upset, then the rich man will find a way to call the gendarme on you. And when the cops come, any unrelated crime they can dig up will be harshly punished.
In non-capitalist societies, substitute “popular” for rich, and “commissars” for cops. it’s the same dynamic, old as humanity.
2 Likes
You seen extraordinarily hung up on the concept of a sex tape being breaking news. In the grand scheme of Gawker, the site, it’s gross, but it’s no more scandalous than a thousand other things they’ve published or posted over the years. The big difference here is that when they refused to back down, it gave Peter Thiel an “in” to, as the Washington Post says, execute the revenge he’d been plotting for over a decade by teaming up with Hulk Hogan to sue them.
3 Likes
Well now you’re speaking my language just so long as the workers don’t use the means of production to post revenge porn.
1 Like
Hard disagree. It’s exponentially grosser and more scandalous. It is a serious felony today in many states for citizens to do what they did. You’re not hung up enough on the sex tape.
1 Like
They aren’t individuals, they’re ostensibly a news organization, which is why Hogan & Thiel didn’t sue them for committing a felony, they sued them for copyright infringement. The case essentially came down to the court deciding whether Hulk Hogan’s sex life was considered newsworthy or not. A big reason a lot of people were angered by the verdict wasn’t because they really want to defend Gawker or defend them posting videos of Hulk Hogan’s dick, but because Peter Thiel’s money and a court got to decide what constitutes news, and destroyed Gawker because a story about a guy who’d previously been in the news because of his sex life was considered not news because they crossed a line with displaying his genitals on their site.
If Hogan hired the same lawyer without the financial backing of Thiel and instead had him working on contingency, the lawyer would most likely have used a different strategy [ETA: and the lawyers Bollea used do work on contingency]. Specifically, they would have structured the case so that Gawker’s insurance coverage applied. Including the insurance company likely would have netted Terry Bollea more than than the $31 million he ultimately ended up getting,and also would have saved Gawker from bankruptcy.
People should also remember that Thiel’s support was secret until after the trial. This hurt Gawker’s defense strategy as you do things differently when the plaintiff has unlimited deep pockets. It also rather conveniently meant that Thiel avoided discovery explaining why he was bankrolling Mr. Bollea.
3 Likes
I’m not disagreeing that Hogan wouldn’t have had the money to press for the nuclear option. But let’s say the nuclear option was pursued either due to the lawyers willing to go for the big pay day, or Hogan sold off his baseball card collection and had the money.
Again, we keep coming to “it was so bad because of the motive”. I want to remove the motive from the action. Would we as up in arms against Hulk Hogan if it was he alone wanting to destroy Gawker because of the leaked sex tape? The simple fact still remains that if Gawker hadn’t done what they did, Thiel or Hogan or anyone else couldn’t have sued them to oblivion.
I don’t necessarily disagree with any of this. The funny thing is I could see myself writing almost this exact comment and drawing the complete opposite conclusion as you. Different strokes, I suppose.
Indeed. As does the simple fact that if Gawker hadn’t angered Peter Thiel with coverage that he didn’t like, it is quite likely they would still be in business today. Both things are true, and being concerned about the latter doesn’t deny the former.
If things had gone sideways for Hogan at trial or some wrinkle had come up in the bankruptcy proceeding that left him without anything significant, I wonder what kind of malpractice and/or bar inquiry his attorneys would have been fearing?
1 Like
I think it would’ve been highly unlikely that that particular money source would have been discoverable. At a minimum Hogan would’ve claimed attorney client privilege and if that argument failed Gawker would still have to show the info has relevance or that it would reasonably lead to admissible evidence.
You’re right that matters of finance affect strategy, but strategy is absolutely attorney-client privileged.
