Peter Thiel vs Gawker

[LaCroix]

 

[The Minsky Moment]

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

You can read the reasoning of the Florida appeals court on this issue, when they reversed the trial court injunction pre-trial

http://law.justia.com/cases/florida/second-district-court-of-appeal/2014/2d13-1951.html

Interesting in light of the fact this same court will hear gawker's appeal.

[The Minsky Moment]

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.

I suspect that finding (and the accompanying jury instructions) on that issue will be carefully scrutinized as both the state and federal courts that considered the issue pre-trial came to a different conclusion.

[The Brain]

I don't see how media businesses are more important to protect than healthcare, energy production, sanitation, or what have you. I can live without media.

[HVC]

Reporting the tapes existence might be news worthy, but didn't they actual provide the tape to the public? Hard to claim that's kosher.

[Berkut]

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.

Flynt claimed it raised freedom of the press issues, but that doesn't make it so.

I don't think there was any freedom of the press issue in either case, really. The Flynt case was about libel, and whether or not parody was a valid exception to the libel laws - prior to Flynt is was kind of sort of assumed that it was, after Flynt it was definitely clear that it was such an exception.

This case is about whether or not private information not intended for public consumption about a public figure is always, never, sometimes a valid thing to publish. The answer, legally, is that it is sometimes - there is no hard and fast rule that says one way or the other, and it will come down to a jury deciding if the newsworthiness of the article outweighs the individual right to privacy. That is obviously going to vary on a lot of factors, and I am perfectly fine with that, and do in fact think media organizations should carefully weigh those factors when they decide to publish.

In fact, I think media organization should weigh those factors carefully as a matter of being responsible societal citizens with an important job. To the extent that we have laws to protect them, it is based on the idea that when they do in fact exercise such careful consideration, we should provide them with the default that it ought to be hard to then hold them financially at risk for those decisions.

Gawker takes that and turns it on its head - it uses our reluctance to hold responsible media to task as a way to be totally irresponsible and just publish any little titillating bullshit that might score them some money from a lowest common denominator public. So fuck them. I have no issue at all with a jury of my peers looking at the evidence, and deciding that they didn't exercise even the most basic amount of journalistic integrity, and nailing them with sever penalties.

Do I think this is going to give CNN pause? Well, I hope CNN already would never publish some private sex tape of some minor celebrity, since any even remotely responsible journalist knows that there is zero actual news there beyond the most sordid kind. If CNN is ever in that business (and sadly it does seem like more and more otherwise "respectable" news organizations are sliding down that path) then I hope that awards like this DO in fact act as a check on their most base instincts - that is in fact the very purpose of such punitive results.

I would like it a lot more if journalists policed themselves in a manner that made it so this kind of stuff doesn't have to go to a jury. But I recognize that isn't possible - there will always be tabloid journalism that operates under the fig leaf of "freedom of the press" to abrogate their responsibility to be actual journalists. So I am glad that there is some kind of potential check to the tabloid "journalists", even if that check is rather blunt and unwieldy.

[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.

Flynt claimed it raised freedom of the press issues, but that doesn't make it so.

I don't think there was any freedom of the press issue in either case, really. The Flynt case was about libel, and whether or not parody was a valid exception to the libel laws - prior to Flynt is was kind of sort of assumed that it was, after Flynt it was definitely clear that it was such an exception.

This case is about whether or not private information not intended for public consumption about a public figure is always, never, sometimes a valid thing to publish. The answer, legally, is that it is sometimes - there is no hard and fast rule that says one way or the other, and it will come down to a jury deciding if the newsworthiness of the article outweighs the individual right to privacy. That is obviously going to vary on a lot of factors, and I am perfectly fine with that, and do in fact think media organizations should carefully weigh those factors when they decide to publish.

In fact, I think media organization should weigh those factors carefully as a matter of being responsible societal citizens with an important job. To the extent that we have laws to protect them, it is based on the idea that when they do in fact exercise such careful consideration, we should provide them with the default that it ought to be hard to then hold them financially at risk for those decisions.

Gawker takes that and turns it on its head - it uses our reluctance to hold responsible media to task as a way to be totally irresponsible and just publish any little titillating bullshit that might score them some money from a lowest common denominator public. So fuck them. I have no issue at all with a jury of my peers looking at the evidence, and deciding that they didn't exercise even the most basic amount of journalistic integrity, and nailing them with sever penalties.

Do I think this is going to give CNN pause? Well, I hope CNN already would never publish some private sex tape of some minor celebrity, since any even remotely responsible journalist knows that there is zero actual news there beyond the most sordid kind. If CNN is ever in that business (and sadly it does seem like more and more otherwise "respectable" news organizations are sliding down that path) then I hope that awards like this DO in fact act as a check on their most base instincts - that is in fact the very purpose of such punitive results.

I would like it a lot more if journalists policed themselves in a manner that made it so this kind of stuff doesn't have to go to a jury. But I recognize that isn't possible - there will always be tabloid journalism that operates under the fig leaf of "freedom of the press" to abrogate their responsibility to be actual journalists. So I am glad that there is some kind of potential check to the tabloid "journalists", even if that check is rather blunt and unwieldy.

The Flynt case was decided on the basis of the First Amendment; not sure whether it makes any difference if the particular freedom was "freedom of the press" or "freedom of speech". In either event, the issue is the same: sometimes protecting civil liberties, as enacted in the US by stuff like the First Amendment, involves, unfortunately, upholding the rights of horrible people to do horrible things we, personally, strongly disapprove of.

Not that such rights ought never to be limited. All rights have limits, though they are expressed in different ways in different legal systems. Point is that we should not lose sight of the impact on the system of rights of particular decisions, merely because we think some of the actors in this specific little drama are really gross.  And I agree that Gawker is gross.

[Legbiter]

And I agree that Gawker is gross.

Aye. It's as if revenge porn and cancer somehow had a butt baby and it was Gawker. The celeb stuff isn't even their worst, they'd regularly ruin nobodies, just college kids for clicks.

[alfred russel]

That the Hogan tapes were sex tapes is not what was so damaging about them. What was damaging about them is that he said racist things. That is what destroyed Hogan's career.

[The Minsky Moment]

I looked at some of the court opinions and briefing last night.  My suspicion is that gawker has a real appeal issue here.  The trial judge was already reversed a couple of times on preliminary rulings.  As I indicated before the appeals court previously found the publication of the tape likely to satisfy the newsworthy standard at an earlier stage of the case, based in part on the fact that Hogan engaged in a bizarre publicity campaign where went on various media outlets to boast at some length about his sexual exploits, his penis, and this particular sexual encounter.  There is also prior precedent for 1st amendment protection for this kind of material, including the Tommy-Pamela Lee case back in the 90s.  Looking at the trial court briefing, Bollea's defense of the jury verdict appears to center around the "but gawker are scumbags" theory - i.e. they say that the testimony of the gawker guy who posted the story proves he was motivated by a desire to appeal to prurience.  But that may be irrelevant - the law isn't entirely clear about whether the public interest standard is objective or subjective but gawker's has a pretty decent argument subjective intent is irrelevant.

Looks like there may also be an appeal issue over the exclusion (and improper sealing) of potential impeachment evidence but that is a separate issue.

[Berkut]

If this is over-turned, I am fine with that as well - the issue is whether or not the risk of such a lawsuit ought to exist to begin with - the actual legal arguments around whether Hogan has a case or not is not that interesting to me, and could be decided either way. My position is not really driven by whether or not his case should or should not be won, but whether or not his ability to bring such a case is problematic itself.

[viper37]

but whether or not his ability to bring such a case is problematic itself.

2 problems here, I think I see.

One, a billionaire can sue for anything he wants to force others to pay legal fees until they are broke.  This is an abuse.
Two, someone who believe has a legitimate claim is unable to pay by himself the required legal fees to have justice rendered.

Now, #2, knowing that in such cases, if you have a remotely solid case the lawyer takes a percentage of the share to cover its fees, it should not be a problem, anyone who is a victim of a Gawker-like media can sue, claim damages and reimburse damages so long as he/she can prove there were damages done.

So we're back to #1.  A billionaire abusing his position due to his wealth.  It may be revenge. It may be a financial strategy to buyback Gawker.  It may be something else, it may even be genuined concern.  But should an individual be allowed to pay the legal fees for another individual in a not so remarquable case when there are other mechanisms to compensate the alleged victim?

I don't think so.  I think it's a real thread to freedom of speech, and as I don't know Gawker, I'll trust you all when you say they are scums, but if we don't defend the scumbags, why bother with defending anyone?  Freedom of speech/press is not there to protect consensual speech that gets the approval of 90%+ of the population.  Everyone is allowed to say how much they love Obama, or how much Donald Trump is a really nice guy. 

But the day someone calls Donald Trump on his lies and he starts sueing them and pushing others to sue by financing their causes until the liberal media he despises are shut down, won't it be too late to act?

[Berkut]

The better question here is not about Donald Trump or Obama - it is about you and me.

Gawker says that if they can get a hold of YOUR sex tape, it is fair game for them to publish it because it is "newsworthy". Their definition of newsworthy is clearly anything that will get them clicks.

That is the question as I see it - is there any line at all, or is any organization that calls itself "media" free to publish *anything* they can get their hands on under the guise of "news"?

[The Minsky Moment]

Gawker says that if they can get a hold of YOUR sex tape, it is fair game for them to publish it because it is "newsworthy".

But that isn't this case.  Hogan was a celebrity, the sex tape was news before it was published by gawker and Hogan himself went on radio shows to boast about it.  That's a little different from just publishing some random citizen's tape.

[Admiral Yi]

So you think this court got OJed Joan?