Peter Thiel vs Gawker

[Berkut]

I am kind of torn on this.

On the one hand, at the basic level, Minsky is right. You can't have non-transparent entities engaging in the legal system to exact revenge. The system requires some basic level of disclosure about motivations and means of the players involved.

On the other hand, Gawker is one of those abhorrent entities that is using that very system's tolerance against it to engage in activities that are, IMO, clearly detrimental and harmful to society in general.

So on that note, fuck them. They *should* be looking over their shoulder at the people they completely screw over, and their ability to strike back within the system. They are being attacked by someone using the system to shield them, it seems like turnabout is fair play.

True, Gawker is horrible - but isn't it often the case that protection of freedom of the press often involves horrible businesses or people?

Larry Flynt springs to mind. 

But we are not talking about freedom of the press in the sense that the government is impinging on their rights to say what they like, we are talking about whether or not private individuals have the right to take action against them, or rather to what extent private individuals have the right to take action against them.

If this was the government going after them for saying something terrible about the government, I would have a very different opinion.

[The Minsky Moment]

But we are not talking about freedom of the press in the sense that the government is impinging on their rights to say what they like, we are talking about whether or not private individuals have the right to take action against them, or rather to what extent private individuals have the right to take action against them.

That WAS the Flynt case - it was a private lawsuit for damages by Falwell over something that Flynt printed that was a grotesque falsehood and extremely insulting.  (By way of comparison what gawker published was accurate and arguably newsworthy)

Malthus' point is that the integrity speech protections is often going to depend on the defense of the scummier elements of the media because it is revulsion against the scumbags that can drive precedent that has wider application.

[Sheilbh]

But there is also a public interest that the rich can't intimidate other types of businesses into getting out of their way.

...

If you have a jackpot justice legal system with wildly unpredictable juries, if you piss off someone with means, a serious enough grudge, and a mentality like Peter Thiel, you have a major problem. If you are a business owner, it isn't irrational to worry that some case with potential against your company will eventually come up, and you could lose everything. Better to steer clear of crossing the guy--be it in the media or anything else (including possibly competing against his business interests, developing his hometown in a way he disapproves of, etc).

Yeah. There's a public interest in the rich not intimidating businesses, there's an additional public interest in the media being able to freely circulate information including crossing rich psychos. I think it's an extra level of pernicious and dangerous.

If the wealthy are able to stop a development that might kind of suck and it's a bad thing. If they're able to stop people reporting on them, that's actively harmful.

Having said that I agree with everyone that Gawker really is awful. Plus I'm not full Euro on this but I do think there's a right to privacy with things like sex tapes. But....

[Malthus]

But we are not talking about freedom of the press in the sense that the government is impinging on their rights to say what they like, we are talking about whether or not private individuals have the right to take action against them, or rather to what extent private individuals have the right to take action against them.

That WAS the Flynt case - it was a private lawsuit for damages by Falwell over something that Flynt printed that was a grotesque falsehood and extremely insulting.  (By way of comparison what gawker published was accurate and arguably newsworthy)

Malthus' point is that the integrity speech protections is often going to depend on the defense of the scummier elements of the media because it is revulsion against the scumbags that can drive precedent that has wider application.

Yup.

Here's a wiki on the Flynt case.

https://en.wikipedia.org/wiki/Hustler_Magazine_v._Falwell

[MadImmortalMan]

Hustler's thing was a parody of Falwell and did in no way publicize any of Falwell's private documents or information. All they did was tell lies about him. Gawker's is an invasion of privacy in a way that Hustler never was.

[Malthus]

Hustler's thing was a parody of Falwell and did in no way publicize any of Falwell's private documents or information. All they did was tell lies about him. Gawker's is an invasion of privacy in a way that Hustler never was.

I'm not saying that the details of the two cases are exactly the same, I'm saying that the fact that a scumbag is being sued may raise quite legitimate freedom of the press issues - regardless of what a dire scumbag the defendant is (or even, in some cases, how very guilty he happens to be in any particular case).

This Gawker thing raises concerns, because as horrible as Gawker undoubtedly is, and as guilty as it may be in invading privacy, the fact that the litigation was bankrolled by a billionaire with a grudge that arose because Gawker published stuff about him he did not like (but could not sue about because it was true) raises concerns.

Given several facts (the US uses jury trials, who regularly award massive damages; there are usually no loser-pays costs rules; and now, apparently, no rules against billionaires bankrolling cases they have no actual interest in because they have a grudge against a media provider for publishing true stuff about them), the "litigation risk" in publishing true stuff about the wealthy is just that much higher.

This is a legitimate concern, I think, about the freedom of the press - that it can be constrained by fear of litigation risk. The fear is that others may be inspired to threaten to do the same - 'if you publish true but bad stuff about me, you better make no mistakes in the future, because I'll bankroll every person with a grudge that seems like it could raise a cause of action, and sue you into oblivion'.

[grumbler]

True, Gawker is horrible - but isn't it often the case that protection of freedom of the press often involves horrible businesses or people?

Larry Flynt springs to mind. 

If this was a freedom of the press issue, then freedom of the press arguments might apply.  No one is claiming that the government took down Gawker because it disapproved of Gawker's  content.  Gawker lost the lawsuit because it acted abhorrently and was not deeper-pocketed than the appellent and so the case went to trial.

Now, you could make the case for disclosure of the financial interests of those involved in a lawsuit, but Thiel had no financial interests in this case.  He was just "helping a buddy."

[The Minsky Moment]

Hustler's thing was a parody of Falwell and did in no way publicize any of Falwell's private documents or information. All they did was tell lies about him. Gawker's is an invasion of privacy in a way that Hustler never was.

True, but another way to see it is that unlike Flynt gawker published true and accurate information about a matter of legitimate public interest.  Keep in mind that both courts to address the issue held that the tape addressed matters of public concern, rejecting Bollea's arguments to the contrary.  So it raises the question when does legitimate news inquiry become so intrusive such that privacy concerns trump the right to publish?  Should Gary Hart be able sue the Miami Herald for stalking him?

[Malthus]

True, Gawker is horrible - but isn't it often the case that protection of freedom of the press often involves horrible businesses or people?

Larry Flynt springs to mind. 

If this was a freedom of the press issue, then freedom of the press arguments might apply.  No one is claiming that the government took down Gawker because it disapproved of Gawker's  content.  Gawker lost the lawsuit because it acted abhorrently and was not deeper-pocketed than the appellent and so the case went to trial.

Now, you could make the case for disclosure of the financial interests of those involved in a lawsuit, but Thiel had no financial interests in this case.  He was just "helping a buddy."

The analogy was with the Falwell vs. Flynt case, which was likewise not about the government attempting to shut down Hustler - yet nonetheless raised freedom of the press issues.

[jimmy olsen]

Hustler's thing was a parody of Falwell and did in no way publicize any of Falwell's private documents or information. All they did was tell lies about him. Gawker's is an invasion of privacy in a way that Hustler never was.

True, but another way to see it is that unlike Flynt gawker published true and accurate information about a matter of legitimate public interest.  Keep in mind that both courts to address the issue held that the tape addressed matters of public concern, rejecting Bollea's arguments to the contrary.  So it raises the question when does legitimate news inquiry become so intrusive such that privacy concerns trump the right to publish?  Should Gary Hart be able sue the Miami Herald for stalking him?

How is a Hulk Hogan sex tap a legitimate matter of public interest?

Gary Hart was running for the president and dared the media to find some dirt on him. The two situations are wildly different.

[LaCroix]

There's no way to ban this kind of legal bankrolling without gutting the ACLU, NAACP, etc.

Technically not true - the Supreme Court case that addressed this issue, NAACP v. Button, held that advocacy by the NAACP (and thus organizations like that) was effectively political expression; thus "in the context of NAACP objectives, litigation is not a technique of resolving private differences."  The Court left open enforcement of traditional common law prohibitions where private gain as opposed to public interest was at stake, or where malicious intent was involved.  There are some states that still have such prohibitions in place; others have gotten rid of them, either directly or by allowing the common law doctrines to fall in abeyance.

Litigation funding services can also be distinguished from the gawker situation because the funder reviews cases on merits, and typically signs a formal agreement setting forth the responsibilities and obligations of the parties so that potential conflicts of interest can be assessed and policed

naacp v. button's "political expression" is essentially no different than this case. the reason SCOTUS favored naacp wasn't due to "political expression," but rather that litigation = an expression, and this country defends the liberty of people to express themselves, etc. i.e., had naacp had a thiel-like reason, I'm pretty positive SCOTUS would have ruled the same way

[Berkut]

But we are not talking about freedom of the press in the sense that the government is impinging on their rights to say what they like, we are talking about whether or not private individuals have the right to take action against them, or rather to what extent private individuals have the right to take action against them.

That WAS the Flynt case - it was a private lawsuit for damages by Falwell over something that Flynt printed that was a grotesque falsehood and extremely insulting.  (By way of comparison what gawker published was accurate and arguably newsworthy)

Falwell sued Flint for libel, and it was tossed because Falwell was a public figure and the slander in question was in the form of a comic, and parody is not grounds for libel, true or not. It was not thrown out under Flynts freedom of the press, but rather because parody doesn't meet the standards for libel.

Malthus' point is that the integrity speech protections is often going to depend on the defense of the scummier elements of the media because it is revulsion against the scumbags that can drive precedent that has wider application.

True, except that there isn't any wider precedent being set here - it has always been the case that a media organization can be sued on the merits similar to this one. There is no new legal precedent here that I can tell.

[Admiral Yi]

Was the problem in the way Gawker acquired the fuck tape?

[Berkut]

Not that I am aware of - the deciding issue is whether the jury was convinced (or not) that the tapes were "newsworthy". Clearly, they did not feel that they were.

Gawker stating as a matter of trial record that they felt that sex tapes that included celebrities minor children "as long as they were older than 4" were fair game as well and similarly "newsworthy" probably didn't help their case with the jury.

I don't see this as a fundamentally problematic case - there is always a balance between rights, and Gollea has a right to privacy that has to be weighed against the right of hacks to publish bullshit to make a dime of other peoples pain. Or that freedom of the press thing.

[alfred russel]

True, Gawker is horrible - but isn't it often the case that protection of freedom of the press often involves horrible businesses or people?

Larry Flynt springs to mind. 

If this was a freedom of the press issue, then freedom of the press arguments might apply.  No one is claiming that the government took down Gawker because it disapproved of Gawker's  content.  Gawker lost the lawsuit because it acted abhorrently and was not deeper-pocketed than the appellent and so the case went to trial.

Now, you could make the case for disclosure of the financial interests of those involved in a lawsuit, but Thiel had no financial interests in this case.  He was just "helping a buddy."

The analogy was with the Falwell vs. Flynt case, which was likewise not about the government attempting to shut down Hustler - yet nonetheless raised freedom of the press issues.

Not to be pedantic, but if something is done through the court system, it doesn't seem too outlandish to attribute some credit to the government. The judiciary is one of the three branches of government, after all.