The flip side of all this - and one which has not attracted enough comment IMO - is that it levels the playing field for poor people against rich media organizations.
People who run big media organizations might be afraid to smear deep-pocketed people who might sue them, but they can be a lot less circumspect in destroying the lives of poorer people who have a harder time taking them on. The Thiel tactic mitigates that, to an extent. Because now these slimeball media organizations always have to fear what might be out there. They might figure they can say what they want about so-and-so because what’s he going to do about it anyway, but then they have to consider - perhaps there’s some billionaire with a grudge out there who will fund this regular guy’s lawsuit. So it would behoove them to be careful about sliming people, even if they themselves don’t have big bucks.
But the reality is that rich media organizations don’t go after poor, unknown people generally speaking. No one cares about Joe Sixpack’s sex tape. The rare time you see something like this happen is when some quasi-public person like Rachel Dolezal or Shaun King gets smeared by some blogger. Those cases are few and far between, and those cases can typically find a lawyer to work on contingency if the claim is particularly strong.
Not really. If media orgs don’t go after powerful people because they are afraid of lawsuits, there won’t be any powerful people to bankroll lawsuits for the little guy out of spite and revenge. Thiel wasn’t doing this solely because Gawker deserved it. He did it because they crossed him. If no news orgs is willing to do that going forward, he isn’t going to spend millions to put them out of business on principle. Or at least he hasn’t said he would do that.
Let’s look at a less charged example like what happened to Mother Jones, or the guy who was sued for accurately stating Trump’s income. How were they sliming people by reporting the truth?
Fact is that the media mostly focuses on rich and famous people, as you say, because that’s where public interest is focused. But even smaller people are sometimes in the crosshairs, if they happen to be involved in some particularly interesting story.
So I don’t think the media will be able to completely swear off rich and powerful people, because that’s their bread and butter. They might have to be more careful, but that’s fine too - they should be more careful. But the point is that once they know they’ve written any number of negative things about very rich people - whether justified or not - they will always have to be on the lookout in case some relatively minor person finds himself as their target too, as happens.
I’m not familiar with those cases. Perhaps they weren’t.
But wouldn’t there have to be even a modest number of innocent, non-famous, poor victims being smeared by large media organizations to offset these two points? The reality is that this almost never happens, and even when it does, few of those people are prevented from suing due to a lack of resources.
Not all rich people, just the ones who sue. For example, Sheldon Adelson:
Guess who later bought the LVJR shortly prior to this ban?
But you are assuming they lacked care. Gawker certainly does, but plenty of other organizations do work scrupulously to report the truth and only the truth. Look at the above case. The guy won in court, yet was bankrupted fighting. He wasn’t careless in his reporting beyond picking someone so thin-skinned and well-heeled.
Perhaps you should educate yourself. See here and here.
brickbacon - why do you insist that I don’t understand what you’re saying, when I simply disagree with what you’re saying? Seriously, is it that hard to distinguish between someone who has a different opinion and someone who is unable to read what you post?
Your responses make it clear you don’t understand/appreciate what is being said. For example, the fact that you still don’t seem to grasp that the merit of a lawsuit is determined by a court and not the public.
No, the binding opinion is issued by a court. You and I are free to disagree. See, for example, Kelo v New London, the OJ verdict, Dred Scott, multiple cases of innocent people sentenced to the death penalty, and many, many other examples.
If you really are asserting that everyone’s opinion on the merits of these cases is irrelevant if a court comes to some decision or another is an extreme example of faith in the state that I’m not sure if anyone would agree with you.
Yes, they are irrelevant as a practical matter. Is this really that hard for you to comprehend? The problem is that when you say things like:
You are assuming this blueprint Thiel has laid out must be based on meritorious claims, and that determining merit is an inexpensive, external process that involves anyone other than courts and juries.
You brought up many cases in your response. I, like you, think many of the case were decided incorrectly. However, that doesn’t change the fact that the rulings were law at the time. Me being pretty certain OJ did it doesn’t mean anything in the grand scheme of things. My opinion doesn’t mean he has to go to jail for murder. My comments before were not implying that I think the courts don’t make mistakes. My point was that your thinking this issue isn’t an issue because Hogan had a good case is missing the point.
I have found the discussion here interesting. Thank you to Ravenman and brickbacon.
You need to go beyond that, because defending Theil hands billionaires a tool to shut down any smallish publication at their whim. MJ was sued for ~$74,900 by a forum shopper. They won, but they and their insurance company lost millions. Said forum shopper then announced a $1 million fund to sue the “liberal press”. This is Boris Badenov stuff. Cite.
IANAL. I’ll shift to, “Let the judge know, then let him or her decide if they want to release the info to the jury. Then let the appeals process handle it.”
Even if Gawker wins the Hogan suit, nobody will want to fund them knowing that Theil would be happy to fund a bizzillion frivolous lawsuits against Gawker Media. So Gawker, Lifehacker, Gizmodo will be starved of cash until/unless the company is broken up.
Would you please stop implying I’m stupid because I don’t agree with you?
I understand your point just fine. It’s just that you’re wrong. People’s opinions on the law and lawsuits do matter, even if those opinions are not deciding who wins the case. That’s because our opinions on whether cases are decided correctly may ultimately result in a change to the law - as you seem to advocate in this very damned thread.
If your opinion on this case doesn’t matter, then stop complaining about Theil. If my opinion doesn’t matter, then neither does yours, right?
Well my core argument is that with regards to Theil v. Gawker, we should be worried.* Any of my proposed solutions should be considered hypotheses. I respect specialist knowledge and IANAL.
With that said, I’d want to go back to the pre-Theil status quo. Since we can’t simply recreate social norms, the legal approach would be to demand that all third-parties funding lawsuits against the media should be required to disclose their financial support to the judge. Loans should be also disclosed - yes this would have to be gamed out a little. At the judge’s discretion, he could inform the jury. Whether he did that or not, such a decision could be appealed. Higher courts then balance competing considerations. After the trial is over, third party funding of lawsuits targeting the media would need to be disclosed to the public. The ACLU should maintain a database, so that future judges can reference it. Shell corporations would be subject to investigation and sunshine.
I’d also pass a national anti-SLAPP law.
As it happens, part of me is also glad: emotions aren’t always mutually exclusive.
Ok, so let’s take the idea of disclosure to the next step. What difference does it make if Thiel is known, or not known, as the bankroll behind the attorneys presenting the case?
Unless you propose that judges be able to penalize a plaintiff for having someone else pay the legal bills - which seems to run in the face of the principle of cases being decided on facts, not personalities - why would disclosure make any difference? Do you believe Thiel would not sue media outlets if it is known that he’s doing so?
ETA: and you seem to imply that the ACLU is a neutral third party in this issue. When the ACLU provides legal help to a person with whom they have no previous association, it’s okay, but rich people are not supposed to be able to do the same?
It makes a difference if the case is known to be supported as part of a wider campaign of legal harassment. Lawsuits are not costless, and if they are backed by a litigious supporter they deserve closer scrutiny. The plaintiff in question of course can decide whether on balance he wants to accept or deny such third party support.
I agree there are legal principles involved though. But there is also a public interest in curbing oligarchy. It’s one thing if media companies have to be polite and careful regarding billionaires. It’s quite another if billionaires start laying down scorched earth policies with regards to publications they dislike on ideological grounds. And doing so in secret.
I confess that I’d care a lot less if this was merely celebrity gossip that we are discussing. But the MJ lawsuit involved pure speech. And Theil hasn’t ruled out similar harassment against Gawker media.
In this context, I assume that the ACLU is supportive of the media industry, but that they also will not fabricate evidence. If they do, their errors can be uncovered. It’s public information after all. If Lexus or someone else wants to get involved, they can do so.
If the ACLU, the Right to Life Committee, the Southern Poverty Law Center, or the Toledo Chamber of Commerce want to support a lawsuit against the National Review or Mother Jones to the tune of $X or more (to which they are not parties), then such support should be disclosed to the judge as I outlined above and should be subject to the same anti-SLAAP laws as Theil would be. I imagine $X to be something like $10,000 or $20,000. Plausibly it could be adjusted by a factor of 10. I don’t know. The complicated part would involve disclosure of donors to such organizations who contribute $X or more. I’m leaning towards sunshine, probably with some sort of grandfather clause. X should be adjusted for changes in the price level.
A loser pays law vis a vis the media could be considered, but I don’t see it as sufficient. Also I’m setting aside the politics of passing these reforms.
The question was why does it matter if it’s backed by a third party if the case is decided on the facts, rather than the personalities. Your response doesn’t address that. You simply state that third party litigious supporters deserve closer scrutiny. Why? Can you conceive of a reason that isn’t based on something outside the facts of the case?
Bumped to mention Gawkerfiled for bankruptcy and subsequently a purchase agreementwith another media company.
They do not matter because what we are talking about is who wins a case. We aren’t taking about opinions spurring lobbying after the fact, or politicians responding to public sentiment. We are taking about a given case.
No. See this is again why it’s pretty clear you don’t understand or appreciate what you are reading. This whole “opinion” issue came up because you said:
Now way back when you made this asinine statement, I pointed out to you that my or your opinion on whether a case seems reasonable has ZERO bearing on whether it actually will end up being heard in a court. Why? Because a judge a jury isn’t subject to public opinion. Maybe an example will help you. Let’s say some lady outs hot coffee between her legs while driving, gets burned, then sues the company who prepared the coffee. Public sentiment was that only a dumbass doesn’t know coffee is hot, and that she was responsible for her injuries. However, a court decided the case needed to be heard, and a jury awarded her money. Notice how the collective opinions of the thousands of people who thought her case didn’t deserve to be heard didn’t matter at all?
Loser pays makes this problem worse in many respects. Yes, it gets rid of bad faith, frivolous lawsuits (which aren’t an issue here AFAWK), but it creates other issues. First, in loser pays countries most corporations insure against this, so the rate of lawsuits doesn’t go down much.
Second, under loser pays, costs are not internalized. By that I mean that no one spends anywhere near the potential payout of a lawsuit coupled with the chance of winning, to litigate the case. So if you think you have a 60% chance of winning $10mm, you would never spend more than $6mm to litigate the case. When the loser pays, a case with a high probability of success incentivizes litigation costs because the other side pays. For example, there are routinely cases of defamation in the UK where the lawyer fees far exceed the amount awarded.
Third, it hasn’t worked particularly well when it has been tried in the US. Mostly because judges don’t enforce it. Can you imagine if, for example, Hogan lost his case, and was required to pay Gawker millions of dollars? This also won’t help in most cases because small litigants like the ones Thiel backed are largely judgement proof. Hogan almost certainly doesn’t have the $3mm+ or so both sides spent on this lawsuit, so Gawker isn’t any better off in the long run.
Loser pays doesn’t address the basic power imbalance that Thiel is exploiting, or the surreptitious methods he is using to exploit the victims and the system. He has much deeper pockets than Gawker. Even if has to pay there legal fees a few times, his strategy is still sound, and still presents a chilling effect on press freedom.
Because cases aren’t just decided on the “facts”. For example, if a lawsuit with the same fact pattern were brought by Kim Kardashian or Anthony Weiner rather than Hogan, do you think the outcome or the award would have been the same?
It matters who is funding the lawsuit for the same reasons it matter who is funding a research study or a book.
Bone, clearly you are not understanding his point. If you understood what he has written, you wouldn’t disagree with him; so you clearly need to read his posts more carefully.
I’ve nothing constructive to add. I just want to say how happy I am that Gawker is filing for bankruptcy. Gawker is the journalistic equivalent of a malignant tumour. Furthermore, as it’s grown its reprehensible business practises have metastasized to other outlets, ushering in the era of clickbait journalism where any half-bright freelancer can get paid to puke malicious sub-wordpress bullshit all over the internet and call it news. Fuck Gawker. I’m glad to see it go down in flames, and I eagerly look forward to phase II of Peter Thiel’s masterplan, wherein he kidnaps Nick Denton, cuts his dick off, and changes his name to Reek.
In many cases it should function that way. We are talking about a civil case here where the subjective opinions of jurors matter a great deal. Had Hogan testified with a flat affect, seemingly disinterested, the jury probably wouldn’t have awarded him $115mm in compensatory damages. Had Gawker employees not made crass jokes about the tape, or implied they’d only draw the line on publishing celebrity sex tapes if the person was 4 or under, they might have avoided punitive damages. Speculatively speaking, if Kim Kardashian had brought the suit, juries might rightly think someone who already has a sex tape, and one who regularly poses nude in magazines, might need to meet a higher burden to argue her privacy was violated. Juries should probably have the right to apportion damages and sympathy based on their subjective opinions. I am not sure there is any way around that.
Speaking to the specific point about anonymously funding lawsuits, the reason people need to know that is because it can obviously alter motivations, incentives, interests, and outcomes. Like when tobacco companies fund studies about lung cancer, or when political campaigns are anonymously funded by secret parties, it’s harder to accurately assess the merit of the study/politician given the possible conflicts of interest or unclean hands.
A similar issue came up recently in DC where the mayor and his people were alleged to have indirectly funded a competitor’s campaign so that said competitor could stay in the race solely to attack his nearest competitor. While there were other laws broken, the scandal was big news in part because secretly funding a political hitman is clearly unethical.
One plain example in this specific case is the fact that Hogan specifically sought to raise claims not covered by Gawker’s insurance, and refused to settle under any circumstances. This matters because the expense of a lawsuit is supposed to be a deterrent; a moderating influence on both sides. It’s supposed to be exceedingly expensive to launch a nuclear war against a huge company because that expense means both sides have an incentive to resolve their conflicts without the use of a trial. If continued litigation is not actually a disincentive, but rather the desired outcome for one side, everyone should be aware of that. Imagine if we found out Hillary’s campaign was being bankrolled by the NRA, or the Syrian Government. Wouldn’t that make you think differently about what she has to say those issues?
Nope, it’s just you. Sadly, your apparent lack of comprehension also extends to the other authors I quoted, and others in thread.
