Yes, whether or not the parties involved experienced actual damages that they should be compensated for will make a difference to the outcome of the trial. Hogan’s testimony, or hypothetically Kardashian’s would be material to the case. Who is paying the bill would not be.
The jury is to decide the facts of the case, and determine the amount of the damages involved. To do that, they do need in most cases to hear from the involved parties. Unless the source of funding was involved directly in the underlying matter under dispute, I don’t see how that’s relevant to the role of the jury.
Now you’ve moved on to advocacy rather than civil litigation. In terms of advocacy, the funding source in many cases has specific protection of anonymity. Advocacy especially should be based on the merits of the ideas, not the source of them. For studies you describe, the evidence should be presented and evaluated on its own merit. My faith in the scientific community would be that they would be able to detect foul play over time.
Cite that the expense is supposed to be a deterrent? If I’m misinterpreting this and this is you stating an opinion then no cite is necessary. Civil courts in my mind are supposed to be accessible to rich and poor alike to address grievances. That it is so expensive in reality is not the point.
I am on the fence with what to do with posts like this.
On the one hand I really do not want to defend Gawker. I do not like them, I think they are slimy and I won’t miss them.
That said my belief in free speech only counts when I defend speech I do not like which would include the likes of Gawker.
This particular case is a very tough line to balance for me. I hate Gawker but I also hate the idea of a billionaire who made his money on products that collect private information suing a media outlet out of existence because he is pissed they outed him on info he would rather have kept private.
Left is right. Black is white. Up is down. Cats and dogs living together…I am not sure where to land on this one except to say the whole thing feels disturbing.
The reason I brought up an alternative plaintiff was because you said that cases should be, “decided on the facts, rather than the personalities”. That is clearly NOT the case in real life, and it probably shouldn’t be if we are to have juries be independent, autonomous bodies.
Who is paying the bill is relevant because it can often speak to the issues I raised before. For example, the motives and truthfulness of someone who wants vengeance rather than just to be made whole (generally the goal of litigation). In this case, Thiel’s involvement was made apparent because it seemingly affected Hogan’s choices. The fact that the behavior of the benefactor affected the plaintiff’s trial choices is enough in my mind for it to be something the court should know about. The above however was compounded by the fact that Hogan could only choose to act as he did because of the fact that he was not paying. A jury would almost certainly evaluate testimony differently if they thought that were the case.
The “facts” of the case can be read in a newspaper. Juries don’t just take in facts, they interpret evidence, weigh the gravity of testimony, etc. I can very easily imagine a jury might find Hogan’s testimony less sincere if they knew he was being possibly manipulated by an outside party. And even if you want to argue he is not being manipulated, the very fact that he seems bent on destroying Gawker rather than being made whole gives him some incentive to exacerbate his claims of injury.
In the case being discussed, it is basically advocacy. Regardless, the point was to illustrate that in other areas where the similar conflicts of interest can arise due to anonymous funding, we have erred on the side of transparency.
Only because of recent SC rulings. Most of the civilized world had recognized that this is a terrible idea because it doesn’t work in reality. Either way, I’d rather not change the subject from the issue at hand.
Your specific faith in the scientific community aside, it’s a basic tenet of scientific research to declare your funding sources and any potential conflicts of interest. Part of the reason for this is because the evaluation of evidence is an inexact and costly process in both courts and laboratories, and because the people paying the bill tend to have undue influence on all those involved.
Courts should be accessible, but they shouldn’t be cost-less or friction-less for ether side. I am not arguing the original intent was for litigation to be expensive. However, my point is that the cost serves as a deterrent. If lawyers were free for both sides (say the state pays), people would sue all the time, and settle grievances far less often without the intervention of courts.
Again, it would be objectively wrong to declare that Gawker had done the things that would be covered by Gawker’s insurance, because Gawker’s actions were not merely negligent. It would have been beneficial to Gawker if Hogan and the court had pretended that Gawker accidentally published pornography of Hulk Hogan produced and distributed without his permission and so allowed them to write it off to their insurance, but that doesn’t make it true.
Defending free speech does not require that one defends child pornography. It does not require that one defends deliberately tricking people into believing there is an imminent threat to their lives that may lead them to expose themselves to lesser dangers - such as being crushed to death in a panicked crowd. And it does not require that one defends filming someone having sex in a private home and then distributing that film to all and sundry for your own profit.
Good bump.
Here’s why. A billionaire can sue a media company repeatedly and lose every time on the merits. Doing so can still push the media company into bankruptcy, because of legal fees. If a billionaire pursues such a strategy of harassment, judges should know about it. Furthermore, judges should be able to tell juries about it.
What stopped this from happening in the past wasn’t the law. It was norms. But those norms have been broken now. So a response is appropriate.
In the Gawker case, Hogan won. But Theil has promised to fund other lawsuits as well. (Cite: “The company is under significant financial pressure from a $140 million legal judgment in an invasion-of-privacy lawsuit by the former wrestler Hulk Hogan and facing a determined foe in the Silicon Valley billionaire Peter Thiel, who is funding legal cases against it.” NYT, today: http://www.nytimes.com/2016/06/11/business/media/gawker-bankruptcy-sale.html?rref=collection%2Ftimestopic%2FGawker%20Media)
Now to be honest, I don’t care too much about Gawker. I do care about Lifehacker, Gizmodo, Mother Jones and the National Review. All are threatened in different ways by these developments. Even if they do nothing wrong.
The other background issue, more controversial, involves the perception that jury decisions are erratic. It’s not unusual for them to hand down huge penalties which get overturned on appeal. Now I say that’s rough justice: we live in an imperfect world. But it’s also costly justice: somebody has to pay for all those lawyers. So the broader context: i.e. that one lawsuit or another is being funded by third parties possibly with ancillary agendas, is something that judges should know about. Possibly juries too. I am persuaded by Bone and Ravenman that this latter aspect is problematic. So I’d want it decided by judges and subject to appellate review. Not automatic, at least until some case law is established.
But let’s be clear about something. Under common law third party funding of lawsuits was forbidden. That is no longer the case. So it’s not like this is a brand new concern I’m discussing. It is a very, very old one. I agree that in the end competing considerations have to be weighed.
Let’s take another angle, a more controversial one. Hulk Hogan is a millionaire. He had the means to sue Gawker, then settle out of court. Gawker offered settlements. According to Jeet Heer, under normal circumstances the parties would have settled. It was only the insertion of a deep pocketed third party that led to an eliminationist approach. And that should be of concern to fans of the first amendment.
Remember that Gawker has done some truly awful stuff, but has also done real journalism, such as investigating Catholic clergy and the like. Much of civil law is devoted to striking a balance and it would be great I think if Gawker could be encouraged to knock off the bullshit. I think it’s reasonable to speculate that Gawker would have honed in on a better approach if Thiel wasn’t involved. Their insurance company would have demanded it.
OTOH!!! Maybe that process would be too slow. Maybe the CEO deserves to be kept as far away as possible from the media business. Perhaps a well delivered punch in the nose could be administered… no! I don’t mean that! Regardless, I still think it’s plausible that rough justice could have been attained without Thiel’s participation.
Say the judge learns that Hulk Hogan will be turning down all settlements, dropping all claims that Gawker’s insurance company would pay and generally pursues an eliminationist strategy. If the judge then learns that Hogan’s lawyers are being funded by a third party, is it fair to say that the judge and Hogan should have a conversation in the judge’s office? Because there’s the possibility that Hogan is being influenced by the guy who is paying the piper.
It’s not clear what actually happened. It’s plausible that Hogan was 100% behind an eliminationist strategy. But it’s also plausible that he wasn’t. Because I’m not a lawyer, I’m not familiar with other sorts of sanctions that counsel is subject to if they are unfaithfully serving their clients. I mean I know they are not suppose to, but I have no idea how it works or would work in practice.
Anyway, judges can be alert to this sort of thing if third parties have to disclose their support. Even if they conclude that the information should not be shared with the jury.
What makes you confident your reasoning makes more sense than the multiple articles linked to articulating the rationale was specifically to hurt Gawker? See here:
That billionaire could have hired Hogan and transferred money to him that way. You can’t stop the flow of money nor the freedom to associate with whom you wish. You know 1st amendment right to assemble and all implies freedom to associate with whom you wish how you wish.
Not sure what you’re getting at. I’m saying money flows should be reported to judges. That doesn’t involve stopping money flows, freedom to associate or right to assemble. If very much involves freedom of speech however. If a billionaire can anonymously use the court system to launch bogus law suits against any newspaper that offends him, then that casts more than a chilling effect on press freedom.
I do think that the law is very well able to deal with hypothetical sham hires and the like. Also, I’m not sure that Thiel would want to pay social security and the taxes if he wanted to do a direct money transfer to the Hulk.
I don’t see a big risk of frivolous lawsuits bringing down media companies. Most states already have special protections against frivolous lawsuits against media companies (anti-SLAPP laws). At worst, an environment of increased frivolous suits will cause their insurance premiums to go up a little, but it’s not make-or-break.
Gawker is being forced into bankruptcy because they lost a massive suit. And they lost not because of some rogue jury or judge, but because they objectively got very close to the line of what the First Amendment protects (even if the question of whether they crossed it is open to debate). Engadget and National Review are never going to show a celebrity sex tape. I happen to think that even the Gawker story probably ought to be First Amendment protected–but it’s certainly a close call, and reasonable people can disagree. They took a huge risk doing what they did, as any lawyer would have (and probably did) tell them at the time.
I quite doubt that there are tons of meritorious multi-million dollar lawsuits going unfunded which are also overall bad for the public interest, such that an influx of angry billionaire money is going to cause any kind of systemic effect. And absent some genuine threat, I’m inclined to think that we ought not do anything to dissuade third-party funders because on balance they’re probably good for bringing equality to the law, since they also fund meritorious lawsuits that benefit the public that wouldn’t be brought without their help.
Because objective fact trumps superfluous conspiracy theories. Do you dispute the fact that Gawker knew what they were doing when they published video taken of Hogan having sex without his consent? If not, why does Hogan have any obligation to give lip service to the lie that Gawker was merely negligent for Gawker’s benefit?
Was Gawker willing to settle for more than $140 million? If not, how is his lawyer at fault for not getting his client as much money as he could have for getting his client more money?
Gawker’s lawyer is JAQing off. Gawker’s insurers would have gone to court refusing to pay, and they would have won because Gawker was not merely negligent, and they had no obligation to pay for Gawker’s deliberate wrongdoing when their insurance policy only covered negligence.
Again this is citing Gawker’s lawyer as if he was not Gawker’s paid spokesman.
In what way should the outcome of a particular case be decided differently if a plaintiff has an unsympathetic history vs. a sympathetic one, all other facts of the case being equal? That’s really what you are suggesting. That unlikeable folks should have less avenue for recompense through the civil courts. It’s like a legal ad hominem and I completely disagree that this is a desirable outcome.
Yes certain individual pieces of information in a given case would be relevant to determine the magnitude of damages, etc. That’s fine.
Why is it desirable that a jury behave differently with the knowledge that someone else is footing the legal bill? I acknowledge they may behave differently - I just don’t think that’s a good thing.
So what if destroying Gawker is the motivation? The key factor is whether Hogan experienced actual damages caused by Gawker. If he did, then he is entitled to compensation. If the level of damages that were inflicted upon Hogan is enough to destroy Gawker, then so be it. They shouldn’t engage in such tortious behavior. Hogan’s funding source is entirely irrelevant to the question of the magnitude of damages, if any, were inflicted by Gawker.
No, we haven’t. Anonymous advocacy has had a long history in this country and it isn’t going away any time soon. From the Federalist Papers to Talley v. California to McIntyre v. Ohio, we have long recognized the right to advocate anonymously. Anonymity provides a way for a litigant (like Hogan or Thiel) who may be personally unpopular to ensure that the court will not prejudge the claim simply because they do not like its proponent.
You seem to be saying that research funded by an interested party has little or less value simply because of its funding source. I would think the quality of the research to be more determinative of the value of any particular research.
Cost as a deterrent is a bad thing. The courts should be available as a system to adjudicate harm caused whenever it is desirable. Do you think there should be a deterrent against using the court system to settle grievances?
And it’s not like a person could sue over and over frivolously. The courts have methods to sanction vexatious litigation. Only in the cases that have merit will actual damages be awarded. Class action suits are similar - even if one party is damaged in only a small way, by suing as a class those large volume of small damages can be consolidated to be large enough to change behavior. But there needs to be actual damages.
Is this like posting the swim times of a convicted rapist? Sure he raped an unconscious woman behind a dumpster, but look at his swim times! Who cares if Gawker has done legit journalism - they also engaged in totally shitty behavior that caused actual damages and should be liable for them.
Hogan has no obligation to accept settlement for $0.01 cent less than the damages that he was subjected to. None. This idea that he should have settled and would have if he didn’t have the financial backing is without merit. So what? He is entitled to damages, and has zero obligation to settle for anything less than 100%.
I don’t see a 1st amendment problem here. Gawker has no right to avoid paying the damages they inflicted. Holding them 100% accountable for the damages they inflicted doesn’t implicate the 1st amendment in any way.
Perhaps this is true. If it is, is it a bad thing? If it’s a bad thing, why is informing a judge or jury the appropriate remedy? That seems to rely on the actions of the judge or jury to put the kibosh on this sort of activity and if it’s a bad thing, why rely on those actors?
National anti-SLAPP laws would be a good thing. Possibly a sufficient thing. Because of forum shopping, the current patchwork is insufficient.
Mother Jones fought a lawsuit in Idaho, which doesn’t have such protections. They won. But they and their insurer paid millions in legal fees. That’s not sustainable. The plaintiff then claimed he was setting up a $1 million fund to sue the liberal media.
This sort of thing can be make or break.
Because there’s a public interest in good journalism, and if you kill good journalism due to a few mistakes… well it’s a downside. You are correct that Gawker’s good deeds shouldn’t play a role in determining guilt - but they should play a role in setting public policy.
Quoted for relevance. As I see it we’re weighing considerations here.
Hm. I’m saying that Hogan acted against his financial interest by dropping all claims against Gawker’s insurance company. That suggests -but does not prove- that his legal strategy was shaped by a third party. Which is a concern for reasons given earlier.
Due to US traditions of free speech, the US is one of the hardest places to sue someone for libel. I like it that way. That also implies though, that the press will damage some people and they will not receive compensation. Or sufficient compensation. Tradeoffs.
It’s a bad thing if Mother Jones and the National Review are driven into bankruptcy because of bullshit lawsuits. As for remedies… you might be correct. IANAL and I haven’t looked into this in detail. I see little harm in releasing this information to a judge. So there’s that. As for juries, I’d like to take it case by case. I’d also like to see national anti-SLAPP legislation. I’d have a look at loser pays.
I repeat that Hogan would have probably received settlement if he wasn’t bankrolled by Thiel. Hell, he might have received a higher payoff in the end (given appeals and the odd insurance company choice). Part of Gawker’s current troubles is even if they get the current damages down, they still are vulnerable to legal harassment on other cases from Thiel. Investors have taken note. So we’re discussing a matter of calibration. Nobody here is saying that Hogan shouldn’t be able to sue for this. And in practice he could have.
As for myself, my concerns here are mostly driven by the Mother Jones case. Because that was an attack on pure speech, as opposed to the privacy violation perpetrated by Gawker.
None of those laws would apply since the billionaire in question was not the plaintiff, and was doing all of this in secret.
But they just as easily could have been forced in bankruptcy by multiple, smaller lawsuits regardless of their success. Death by a thousand cuts is just as effective. That’s not excusing Gawker’s recklessness, but that is less of the issue here.
I’d argue they kinda did get screwed here. The judge in this case is the most reversed judge in her county. The jury also awarded Hogan more than he asked for. That’s some BS.
If it were objective fact, they wouldn’t have raised the claim in the first place.
What do you mean, “knew what they were doing”? I don’t think that is the issue. The issue is it makes no sense to dismiss one party to your lawsuit with deep pockets, and to do so by substituting a claim with a higher burden of scrutiny. Proving mere negligence is easier than proving intentionality. Quoting wiki:
So again, why would Hogan want a higher burden of proof even if he thought the merits of his case would suffice? It just doesn’t make sense. That’s why people started speculating.
It’s not a lie. Claiming negligence doesn’t mean you don’t think it was intentional. It may just be about what you think you can prove.
Gawker is not going to have to pay Hogan anywhere near $140mm. I will bet you $20 that that number will not be even a quarter of that amount after appeals have been exhausted. I wouldn’t be surprised if the whole thing was overturned.
More importantly, even Hogan did not think he would we awarded $140mm. Gawker almost certainly offered him millions to settle, and most people would have taken the deal to avoid the trial which subjected him to further public embarrassment.
You may be right, but that is not an issue a plantiff would concern themselves with absent some ulterior motive.
They are not citing Gawker’s lawyer. They are citing Dan Abrams, a lawyer and writer, and some others.
Here’s another that makes the point more explicit:
This article also provides an explanation for why Hogan dropped the claim mid stream. It was because the provision was only made public later on.
So I ask again, why you are so sure it was due to some legal necessity and not strategy given multiple legal experts seem to disagree with you?
The simplest solution would be the one from the 1800s. Ban all third party funding of lawsuits, but limit that to cases where a media company is a defendant. Yeah, I balk at that too. We’re here to fight ignorance, so I encourage others to attack that idea. I will go so far as to say that the proposal deserves a journal article -heck it might have some historical interest- but that’s it.
It’s not a matter of sympathy per se. The issue is what a jury should use to determine damages or culpability. If you are going to allow victims to testify to the extent of their emotional distress and to make a case that someone else is responsible, then juries are going to weight that testimony. The weight they give that should matter to some extent on who is making the case, and how well they make it.
For example, say this happened to the wrestler Chyna (rip) instead of Hogan. I think the outcome of the trial would be different given Chyna has willingly starred in and promoted a sex tape in the past. It’s understandable much harder to argue your brand and esteem in public suffered because people saw a surreptitiously recorded sex tape when you have a legit one out there.
Because a jury should probably have a more cynical view of a plaintiff who is possibly behaving differently due to having a certain financial backer. This is the basis of most conflict of interest issues. It’s not that a scientist who receives funding from a group she studies, or a politician getting money from an advocacy group is automatically dishonest or disingenuous. It’s that they are potentially beholden to some set of interests that might compromise them.
But the determination of those damages is in part based on Hogan’s credibility. If his credibility is compromised due to him being beholden to Thiel, or if he has an outsized incentive to exacerbate his claims, then a jury should know.
I never said anonymous advocacy was new. I said in areas where there is typically a risk for a conflict of interest, norms usually dictate we err on the side of transparency. None of the cases you cited are relevant.
In theory, research funded by an interested party doesn’t have less value, but in practice it often does. Are you really denying this basic idea? Why do you think scientists typically disclose their funding sources?
Available and free from any cost are two different things. We shouldn’t have a system whose costs preclude many from being able to participate, but it shouldn’t be so without risks and costs that people don’t respect the resource.
Of course there should be. Otherwise the courts could not function. This is why even most small claims courts have some fees.
Yes, they can. That is the issue. We pretty much know Thiel has backed multiple suits against Gawker. He is able to do this because he is NOT the plaintiff, and because he was doing it in secret. There is no law that I am aware of that prevents Thiel from funding as many lawsuits of varying merit against Gawker.
But you still have to spend lots of money to defend yourself from those cases without merit.
Is Hogan required to act in a way that maximizes his financial interests? Even if what you say is true, I’d say so what. What if his ultimate goal was to put Gawker out of business? If he engages the legal system to win damages that do this, that’s fine by me.
Let’s say that Hogan is rich enough he doesn’t need the money. Any more money has low marginal utility. But he is harmed by Gawker. Is it any value to Hogan that he may extract some additional low marginal utility money from them? If he has a way to legally (figuratively) burn them to the ground by abandoning avenues that let them escape with minor financial penalties, it’s his right to avoid those to ensure that Gawker pays rather than their insurance company. That is a worthwhile endeavor.
The problem is, your suggestion about informing judges and juries doesn’t address the concern you have. You stated above that even if the lawsuits lose, they can be so expensive as to bankrupt a company. Informing a judge or jury does nothing to prevent that. This solution doesn’t align with the stated goal. That’s why it seems like an attack on unsympathetic plaintiffs designed to influence the outcome, not protect the cost of defending merit-less lawsuits. As you say, national anti-SLAPP and/or loser pays are solutions much more aligned to the stated goal.
I think I’m not doing a good job of clarifying the disagreement here. Let me try again. I agree that a jury needs to weigh the credibility of the plaintiff in determining the level of damages. I agree with your example about the outcome if the plaintiff was Chyna rather than Hogan (assuming what you said about her is true, I’m ignorant of her history). All of that is fine because the level of damages are influenced by previous behavior. But where we depart is when the lawsuit by Chyna or by Hogan is funded by themselves or by a third party. That factor is not relevant in measuring the damages.
How is Hogan’s credibility compromised due to him being funded by Thiel? Is the idea that he is being funded by a third party mean that he was actually damaged less? You haven’t made the connection where Thiel’s involvement makes Hogan less credible.
You kind of did, but if I misinterpreted it let me know. Here’s the context:
I am directly talking about advocacy, and saying that the funding source has specific protection of anonymity. You responded that was only because of recent SC rulings. I cited cases from 1960 and 1995. 1995 may arguably be recent, but 1960 is not.
Well I just completely disagree with this idea that there should be barriers to the court system over and above the cost to fund them. I do not think that small claims courts have some fees to deter people from using the court system - do you have a cite for this claim? My understanding is that fees are designed to cover administrative costs, not deter people from using the resource.
True, and you’d have to do the same if the funding source was disclosed to both the judge and the jury. In other words, this disclosure doesn’t solve any problem related to prohibitive legal expense.
Oh sure. But we can’t assume that Hogan would have done such a thing if Thiel wasn’t paying for his lawyers. Experts seem to think that Thiel influenced the way the case proceeded.
At a minimum, methinks that if the judge knew about the financing, he should have a discussion with Hogan in his chambers to verify that he understands the implications of his lawyer’s strategy. That’s the sort of heads up that would be useful, even if word never reached the jury.
I’m thinking that judges might be more inclined in a close setting to throw out a bogus case if he thought it was part of a third party vendetta. But IANAL and that may be the wrong way to go about things. Brickbacon, who seems to be more familiar with these sorts of things, seems to believe that knowledge of funding could be relevant in a civil setting. Preponderance of the evidence and all that.
Honestly though I’m not sure. Out of my area. Recall what I said upthread, “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.” That said, while I can see good reasons for keeping juries in the dark about this, I am a little puzzled about objecting to sunshine with regards to judges. I guess if it was shown to be pointless, it shouldn’t be done. But brickbacon has shown that it could be relevant I think.
I can imagine a systematic treatment of the issue that would combine national SLAPP (and applying it to third party funders) with loser pays, one that was skeptical about sharing this sort of info with juries.
Even if Thiel did influence the way the case proceeded, so what? Did Thiel change the fact pattern of Gawker’s actions leading to the suit in the first place? If not, then it doesn’t matter.
Telling the judge is basically an anti-SLAPP framework. Except in states like CA that have anti-SLAPP provisions, the fact that funding of a suit is from a third party isn’t part of the calculus to determine if a suit has merit. And it shouldn’t be since it isn’t relevant to the fact pattern of a given case.
Lots of things could be relevant. Even things of unquestioned relevance can be excluded if it is determined that the probative value is outweighed by the harm in presenting the information.
I’m fine with anti-SLAPP laws, and fine with loser pays laws. But eliminating third party funding of civil litigation would have prevented many of the class action lawsuits that propelled the civil rights movement. See for example NAACP v. Button.
Regardless, I still think it’s plausible that rough justice could have been attained without Thiel’s participation.