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The Wages Of Inequality, Cont’d

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Hulkamania

If a plutocrat wants to destroy a media outlet, it will be almost impossible for all but the best-capitalized to stop:

Thiel’s interview with the New York Times about his legal campaign, in which a $10 million investment on lawyers managed to bring an entire media company to the brink of disaster, is the new required reading in Silicon Valley, especially the bit where he says that it’s “one of my greater philanthropic things that I’ve done.”

Thiel, like most Silicon Valley entrepreneurs, loves to think of himself as a visionary. His first company, PayPal, started as an attempt to create a whole new global currency; since then he has invested most of his time and money into ambitious attempts to change the world. But it’s his investment in a campaign against Gawker, intended to inflict as much damage as he can on Gawker Media and its proprietor, Nick Denton, which could prove to be his most effective – and his most harmful.

Thiel’s tactics in going after Gawker are very, very frightening for anybody who believes in freedom of speech; they’re also extremely effective, in an evil-genius kind of way.

[…]

It gets worse. If Thiel’s strategy works against Gawker, it could be used by any billionaire against any media organization. Sheldon Adelson, Donald Trump, the list goes on and on. Up until now, they’ve mostly been content suing news organizations as plaintiffs, over stories which name them. But Thiel has shown them how to go thermonuclear: bankroll other lawsuits, as many as it takes, and bankrupt the news organization that way. Very few companies have the legal wherewithal to withstand such a barrage.

This is a problem that’s likely to get worse before it gets better.

…JMM:

It all comes down to a simple point. You may not like Gawker. They’ve published stories I would have been ashamed to publish. But if the extremely wealthy, under a veil secrecy, can destroy publications they want to silence, that’s a far bigger threat to freedom of the press than most of the things we commonly worry about on that front. If this is the new weapon in the arsenal of the super rich, few publications will have the resources or the death wish to scrutinize them closely.

The Hogan case, it must be admitted, is not one that makes Gawker look very sympathetic. Hogan’s lawsuit was not at all frivolous, even if the size of judgment was far too high, and even if we assumed arguendo that Gawker didn’t violate Hogan’s legal rights it showed horrible judgment in publishing sex tapes without his consent. But whatever one thinks about the case at hand, the tactics being used against them can be used against anybody.

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  • In a fight between Peter Thiel and Nick Denton I’m rooting for injuries. Thiel is much worse, though.

    • Jordan

      ehh, we’d be worse off without gawker media (denton, who cares).

      • DrDick

        How?

        • Cassiodorus

          Jezebel and Deadspin are both great websites.

          • Manny Kant

            And Pareene runs Gawker proper now.

            • ThrottleJockey

              Gawker Media is a blight on humanity, and Alex Pareene is the biggest sour puss hater, I’ve ever read. Gawd I’m so glad he’s gone from Slate or Salon or whatever site his misanthropic drivel polluted. The thing is a collection of hacks run by hacks. The National Enquirer is as reliable. I was never a fan of Hulk Hogan as a kid, but I’m rooting for him all the way now. Hope that company ends up like Life Magazine…or better yet, Charmin.

              • GeoX

                …the hell? Alex Pareene is awesome.

              • ColBatGuano

                Well, if TJ’s against him, I’m for him.

              • werewitch

                Gawker Media is a blight on humanity

                I’m sure some people were put off by this, but they need to remember it’s a delight to say that such-a-such is “a blight on humanity.” The more banal the target, the more fun it is!

                The thing is a collection of hacks run by hacks.

                That literally is what Lifehacker is.

                The National Enquirer is as reliable.

                Careful, the National Enquirer might sue you for that. :P

          • Quite Likely

            Heh, Jezebel is usually the part I hear complained about the most, though that’s really more as part of the MRA vs SJW internet culture war than anything to do with Gawker. I do love io9 though.

            • Origami Isopod

              Jezebel is faux-minist. They put up plenty of crap just for page hits.

              That said, I agree with Scott; this case sets bad precedent.

          • twbb

            Jezebel alternates wildly between good and horrible.

          • Daragh McDowell

            Let me also raise a glass to Kotaku. One of the best video game sites out there. I recognise that’s not everyone’s cup of tea, but Kotaku is really light years ahead of other sites which often read like press release delivery systems. They’ve published a lot of critical journalism on working practices in game development and were among the first to come out hard on Gamergate.

            • Jordan

              Yes, kotaku is definitely my favorite video game site out there.

              And re: gamergate. A lot of their subsequent converage of gamergate has been way too mild for my taste, but there *is* a reason that the major subreddit for gamergaters is named after them and that one of the precipitating events that started the whole thing involved a kotaku writer. Gamergaters *really* hate kotaku.

        • Jordan

          Because they on balance do way more good than they do evil.

    • pianomover

      PayPal still owes me $105.00 dollars from 6 years ago.

    • andrew97

      Speaking of terrible human beings, and as long as we’re floating insane conspiracy theories, I bet it will come out that A. J. Daulerio was a Thiel plant.

  • Murc

    I’ve had trouble getting people to take this seriously because of the widespread (and accurate, to be fair) perception that Gawker is an awful media outlet that thrives on prurience and the invasion of peoples privacy under the cloak of public interest.

    So a lot of folks are viewing this as just desserts, rather than the start of (really, the continuation of) something more sinister.

    • Juicy_Joel

      All in all is Gawker really that awful? Deadspin in particular has done some great work…

      • Pseudonym

        When it’s good it’s pretty good, when it’s bad it’s pretty bad. The different sites are so disparate that it’s hard to form an opinion on the operation as a whole.

        • Halloween Jack

          And they’ve been around long enough that some of the sites have gone through several generations (in internet time) of editors and writers; the person(s) who wrote and/or approved that article that you think of when you think “Gawker sucks” may have left it behind some time ago.

      • Nobdy

        Gawker has a lot of writers and a lot of sites. Some of them are very good, some of them are lousy. The overall problem is that Gawker promotes a lot of bad media behavior. For awhile it had a feature called “Gawker Stalker” wherein people would report celeb locations, which was creepy and potentially dangerous.

        It takes the perspective that famous people (and sometimes non-famous people) deserve zero privacy or respect. Sometimes this can be a good thing (going after the NCAA exploitative cartel or calling out bad owners in sports) but it can also be pretty distasteful. Just depends who is writing and for what site.

      • Deadspin is good. Annoyingly, Nick Denton decided to list their extremely good work on concussions in the NFL alongside Hillary’s email server and that bogus-ass Facebook story as examples of good journalism.

        • ThrottleJockey

          Why is Hill’s email story “bad” journalism? Unless you mean that “bad = disagrees with my political point of view”

      • Jordan

        No, its not.

      • kped

        I’d say it’s more good then bad, but when it’s bad, it’s dumpster fire bad. Like helping someone blackmail a private citizen and possibly ruining his marriage and career all for the crime of being an in the closet relative of a famous person. That was one of the biggest scum bag moves I’ve seen.

    • Nobdy

      It’s not that Gawker is bad, it’s that in this case what they did was pretty bad. At the very least it’s hard to call this a frivolous suit. The claim that shadowy billionaires will fund a bunch of frivolous lawsuits and bankrupt their enemies doesn’t ring true for me from this particular suit, where, yes, Thiel took advantage, but Gawker also exposed itself by behaving very very badly.

      And didn’t Adelson recently buy up a Vegas paper that used to be a pain in his tuchus. That seems more common (and much more dangerous) than the lawsuit template, at least until we see others copy the template with less meritorious claims.

      • snarkout

        People are assuming that Thiel is bankrolling some additional suits against Gawker (handled by the same lawyer) as well, including one over a Sam Biddle story about some swirling Tinder weirdness that seemed to go out of its way to be fair to the plaintiff.

        • Snarki, child of Loki

          A legal DDOS attack is clearly a vulnerability that is currently unpatched.

      • I don’t see this as a frivolous lawsuit– and it speaks volumes to me that it was not litigated on a contingent fee basis. What are the damages, really? Hogan is different from many public figures in that he is a “reality” performer. Is there really an expectation of privacy when one makes a living out of narratives that center around, inter alia, sexual prowess? How were the damages calculated? Does Hogan seriously contend that his persona is less commercially valuable today than it was before Gawker ran the story? That seems unlikely to me, although I suppose the jury based its decision on something

        • ajay

          What are the damages, really? Hogan is different from many public figures in that he is a “reality” performer. Is there really an expectation of privacy when one makes a living out of narratives that center around, inter alia, sexual prowess?

          Hint: yes. You may remember the 2014 iCloud hack. A lot of the people on that made a living out of “narratives that center around, inter alia, sexual prowess”. They still had an expectation of privacy. Human rights turn out not to have a “doesn’t apply to total sluts” exception.

          • DAS

            I wholeheartedly second the yes answer to the question I think you are answering yes to. Even (perhaps even especially) a reality star making a living out of narratives centering around sexual prowess has a right to control that narrative. To whatever extent the damages awarded are punitive, those damages still apply even to Hulk Hogan.

            OTOH, as to the non-punitive portion of the suit, the actual harm to Hulk Hogan must be considered. In the case of releasing sexually explicit materials of someone who makes a living off of publicity and a narrative of sexual prowess, that becomes difficult. On the one hand, if Hulk Hogan were in the business of selling sexually explicit videos of himself, there would be an element of theft in releasing a free video, which would argue for increased money awarded to Hogan. OTOH, even in that case, the released video could be seen as publicity that results in increased sales for Hogan. In any case, the benefits Hogan receives from the publicity must be weighed against the costs (emotional, monetary, etc.) in awarding damages.

            • farin

              Wasn’t his claim that each pageview was depriving him of one pay-per-view purchase had he decided to sell the tape himself?

              • Snuff curry

                No, it was that being outed at the sort of person who casually throws around “nigger” would prevent him from getting television work.

                • farin

                  I thought that was a different video on a different website?

      • Quite Likely

        The issue is that you can’t necessarily just go out and buy any news source. If they’re not a publicly traded company, whoever owns it can just decide not to sell to some asshole who’s trying to shut them down. On the other hand the lawsuit tactic could be used against any organization that a decent number of people are interested in suing.

    • twbb

      “Gawker is an awful media outlet that thrives on prurience and the invasion of peoples privacy under the cloak of public interest”

      The worst part of it is the constant about-faces; invasion of privacy is bad except when it’s good except when it’s bad. I think you can be pearl-clutching about privacy or rummaging through celebrity garbage, but you shouldn’t do both.

      • ThrottleJockey

        This, this, triple this.

    • DrDick

      Gawker really is the National Enquirer of online media and no loss to anyone, but this kind of unprincipled attack is simply evil. Even NRO and Rush Limbaugh do not deserve this.

  • Pseudonym

    This sets a scary precedent. Gawker’s posting the sex tape was an invasion of privacy, but not one that merits destroying it as a company, especially when targeted as a personal vendetta. There’s approximately zero risk of Mark Zuckerberg doing this, but the Trumps and Adelsons are quite likely to follow in Thiel’s footsteps, not being the types to shy away from controversy. (Thiel, incidentally, think that the 19th amendment was a mistake. Great guy. Though any speculation on a link between his views of women and his sexuality would be problematic.)

  • FFFFFFIIII

    Seems like an appropriate time to link this.

    • Jordan

      good link

    • There are better articles on the new hard right, especially some recently at Vox, that don’t attempt to lump everybody except the radical far-left into a reactionary fascist mass.

      • FFFFFFIIII

        Was more about the Thiel connection than anything else.

        • Yeah, okay. I’m not sure how much of the effect of the piece comes from the title, which the writer probably didn’t pick.

    • DAS

      Isn’t “let the tech companies run America, INC” just another version of the “run America like a business” line the GOP has been pushing for a while?

      You’d think, though, that tech drones would know better than trying to run America like a (tech) business. Do techies really think we’d do better as a country if government workers constantly had their bosses breathing down their necks about “getting those TPS reports in by Sunday”? Do we really want our local FBI bureau office ran by Bill Lumbergh?

      In general, businesses go bankrupt, businesses don’t always work. That’s part of the magic of capitalism and the free market — the competition is supposed to ensure the winners are the best. But do we really want the USA to go bankrupt because another country is better at making money than we are?

      • There are left-libertarians (eta: and liberals) who think “techies” should run things, and there are hard reactionaries who think things should be run along ultramontane lines. Those are very different things.

        The latter are convinced that there’s a Truth that is represented by neofeudal ideals. The reasons why they are techies and ultra-reactionary are, I think, complicated. But they explicitly want to disenfranchise people they think are wrong, and in fact, to disenfranchise people who are, in their view, by definition wrong.

        The former are convinced that there’s a Truth that is represented, roughly (and in my opinion), by the neoliberal academy as they understand it, which understanding is limited or wrongheaded in important ways; and that the existing power structures in our society give rich businesspeople a lot of power, and that they should use this power for good. This is in important ways wrongheaded, but it isn’t evil, and it isn’t based explicitly on wanting to dominate people they think are wrong.

        • Yankee

          Noblesse oblige, and let’s all have a spot of tea, eh what?

      • Linnaeus

        Do techies really think we’d do better as a country if government workers constantly had their bosses breathing down their necks about “getting those TPS reports in by Sunday”? Do we really want our local FBI bureau office ran by Bill Lumbergh?

        My guess is that the folks who feel that tech companies should run things have in mind a culture akin to a startup and not Initech.

        • N__B

          Microwave popcorn, take-out burritos, foosball, and 80-hour work weeks is no way to run a country.

          • DAS

            Indeed. And so many of those start ups maintain that culture as they last for 200+ years.

  • keta

    Far be from me to defend Gawker or Denton, but I find the machinations of this whole shitstorm particularly chilling.

    Here’s Trump in February:

    “One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected,” Trump said.

    Trump will never be Liar-in-Chief, but just think of a media hamstrung by the fear of being sued, third-party litigation funding-style, by anyone with bottomless pockets. That’s scary stuff.

    • JonH

      “Trump will never be Liar-in-Chief,”

      Don’t be so sure. Never be so sure.

    • efgoldman

      just think of a media hamstrung by the fear of being sued

      If there were ever a Sullivan exception, the presidential candidate of one of the two major parties, who’s also a TV show host and put his face in front of any camera he can find would be it, no?

      • keta

        Yes. But with Trump it’s not all the grand madness he proposes himself, it’s all the little madnesses he promotes in others that I find most unsettling.

        (Completely OT, but how about Doug Wilson finally getting to a Cup final?! Swim on, Sharks!)

        • Captain Oblivious

          As someone who has been a diehard Sharks fan since their Cow Palace days, I almost cried.

          • keta

            Then you’re exactly the sort of fan I feel good for. I’d like to see them run the table. Always liked Wilson as a player and would love to see Thornton, especially, win a Cup. It would look good on his Hall of Fame career summary.

          • So am I. I can’t afford to go to the games any more, but I’m still pretty psyched about this.

        • Pseudonym

          Nice to see at least one Bay Area winter sports team making it to a final.

          • Jordan

            ehehehehehehe

          • efgoldman

            Nice to see at least one Bay Area winter sports team making it to a final.

            San Jose vs Tampa has to be NBC’s worst nightmare. Only thing worse, from there POV, would be two Western Canada teams (which can’t happen under the current playoff format) or Phoenix.
            I really thought the Blues were better than that and the Sharks weren’t quite that good.

            • kped

              Edmonton vs Winnipeg…catch the excitement!

              They have to be praying that Pittsburgh goes through. Tampa without their only marketable star (Stamkos) is just ratings death.

            • Linnaeus

              I know I shouldn’t, given my traditional hockey loyalties, but I kinda feel sorry for the St. Louis Blues.

    • Morbo

      If you’re going to link this situation to Trump, it’s fair to point out that Thiel is a pledged delegate for him.

    • Bill Murray

      so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.

      If it’s provably false, don’t current libel laws work adequately?

  • Captain Oblivious

    I don’t see how we can effectively constrain behavior like Thiel’s without jeopardizing the funding of organizations like the ACLU, SPLC, EFF, etc. that often bring suits on others’ behalf, or without making it illegal for people to hold fundraisers to cover their legal costs.

    Am I missing something?

    • Pseudonym

      That there’s no easy answer to this problem?

    • I didn’t read it all, & it’s from 1913, but this seems to cover at least some of that.

      Champetry is not illegal in all states, apparently.

      • rea

        Champetry doctrine as originally formulated barred contingent fees

    • Jordan

      Am I missing something?

      In the short term: make such things public.

      In the long term: change our court system.

      • Just_Dropping_By

        “Change our court system” to what? Prohibit third-party funding of litigation? Prohibit defamation and/or invasion of privacy claims? What?

        • Jordan

          Yes, a serious restriction of “defamation” or like claims. How to do it? I don’t know, thats what the lawyers are supposedly here for.

          But if you don’t, you become singapore.

    • Brett

      Pass a strong national anti-SLAPP law, and require public disclosure if a lawsuit is being backed by third-parties for financing above a certain level of spending.

    • werewitch

      I don’t see how we can effectively constrain behavior like Thiel’s

      Indirectly, e.g. with a tax structure that makes it very difficult to become that wealthy and maintain that level of wealth.

  • James B. Shearer

    This sets a scary precedent. Gawker’s posting the sex tape was an invasion of privacy, but not one that merits destroying it as a company, …

    I don’t see why not, their position being that they didn’t do anything wrong and would do it again.

    Since most media outlets don’t publish illegally recorded sex tapes I don’t see a dangerous precedent here.

    • Jordan

      You are cool with destroying a media company because a billionaire doesn’t like them? That isn’t a bad precedent?

      • Marc

        They are facing losses because of repeated out-of-bounds activities, not because a billionaire concocted baseless lawsuits.

        Yes, I think that we’re better off if media companies decide, say, that they won’t publish secretly recorded sex tapes.

        • ColBatGuano

          If the NY Times can stay in business after the Judith Miller escapade, then I think Gawker should survive. Is publishing a sex tape a bad thing? Sure, but in comparison to enabling a war?

        • Jordan

          They are facing losses because a billionaire has decided to destroy them.

          No, I think we’re better off if media companies who anger billionaires don’t get put out of business by said billionaires.

      • yet_another_lawyer

        There actually isn’t a tort for “billionaire doesn’t like you.” The Mother Jones thing is an example of using the legal system in an abusive way. The Gawker thing is not, any more than coming down hard on the Erin Andrews hotel is “destroying a hotel because a millionaire doesn’t like them.”

        • Jordan

          Of course the gawker thing is using the legal system in an abusive way (the mother jones thing is as well, of course).

          A billionaire disliked a media institution and manipulated the legal system and used his funds to attempt to destroy them.

          This could not be clearer, really.

    • AMK

      Yeah I really don’t understand the sky-is-falling hysterics here. It’s not like this is a news organization being silenced for reporting on, say, illegal activity at Thiel’s companies or his connections to politicians.

      This is a tabloid gossip column that published an illegally recorded celebrity sex tape. Another, richer pseudo-celebrity with an axe to grid against the tabloid for outing his own sexuality saw the opening and took advantage. The whole thing is just a Jerry Springer slapfight.

      • Jordan

        Gawker relentlessly mocks rich assholes, very much including Thiel. One part of that mockery was very much suspect. All the rest of it wasn’t.

        Now that rich asshole is using the state to silence the source of that mockery and you don’t give a shit and think its all cool.

        I mean, for fucks sake already.

        • Marc

          So it’s totally OK if you don’t like the target? Would it be fine if they did it to you? Free hint: they outed the brother of someone that they didn’t like, and he wasn’t famous.

          • rea

            They apparently outed Thiel, too.

          • Jordan

            Yes, the thing with the conde naste guy was absolutely terrible. Gawker does very bad things sometimes.

            The idea that *me* and fucking Peter Thiel are in any way comparable can only be the result of a process-based worship that is dumb and wrong and ignorant.

      • Malaclypse

        The whole thing is just a Jerry Springer slapfight.

        Couldn’t the same be said of People v Larry Flynt?

        • AMK

          I’m not a lawyer, but I’m pretty sure writing a parody interview and publishing a stolen sextape are different things.

          • Pseudonym

            But would a sex tape of Falwell with his mom in an outhouse be considered sufficiently newsworthy to escape a suit for invasion of privacy?

        • DrDick

          Indeed. While I actually side with Hogan in his suit (disturbing in its own right), billionaires going after media sites they do not like is really quite chilling.

          • yet_another_lawyer

            If they’re bringing meritless litigation, then the judicial system should push sanctions hard. If they bring meritorious litigation, then the source of funding for the lawsuit is irrelevant– it has to be that way, unless you’re prepared to offer legal immunity to every media company that at least one billionaire doesn’t like.

            • Yeah, I’m not a lawyer, but it seems to me the only way for Hogan not to win here (I feel bad for LGM’s commenter Hogan, incidentally, and the initial context in which this came up in comments confused me for a bit since I’d just replied to our Hogan a little while before) is (1) billionaires or other people we don’t like can’t win and people supported by them can’t win, at least if the case isn’t open-and-shut (which seems to be bad because being rich will become a reason for not getting justice regardless of where justice lies), or (2) which is much worse, the reasons for deciding this case on the merits are shifted, from what was usual before, in a way that will affect every case going forward (which is basically just an argument that power should be shifted from private people to big media).

              • Hogan

                Thank you for your support.

            • njorl

              Yep. There’s no defense against this behavior other than the light of day. If the media source under attack can’t bear the sunlight either, then they’re screwed.

            • Philip

              Well, but this wasn’t the only case he’s funded against them. There’s 3 or 4 others it sounds like also came from him, some of which are extremely frivolous. And while they should lose the Hogan case…Thiel’s been trying for a decade, and would happily have gone on longer. How many media orgs do you think could go decades of solid investigative journalism without occasional serious fuckups?

  • Warren Terra

    Surely we’d do better to focus on the Mother Jones case? In the Gawker / Hulk Hogan case Hogan has a case, though I thought he should probably lose and the damages were completely absurd; in the Mother Jones case the entire thing was brazenly concocted to hurt the magazine on no justifiable grounds, with the case tried in a state essentially owned by the plaintiff.

    PS from my comment when the Mother Jones nuisance suit was tossed, my main concern, which so far as I know remains accurate:

    Mother Jones won by summary judgment, with the judge backing them on every claim. To my non-lawyer eyes, that seems like a total win, indeed a resounding rebuff, a declaration that the plaintiff never had a case. That took years and millions of dollars, though – and not only did Mother Jones not get any compensation from VanderSloot (I don’t know if they counter-sued, nor how hard that would be), VanderSloot has offered a million bucks to anyone else who wants to sue Mother Jones. He is still threatening them, and looking to harm them. Legally, apparently.

    • keta

      It’s the third-party litigation funding of the Gawker suit that distinguishes, though.

      I don’t need an even seemingly actionable suit to come after you. I simply fund anyone that does, or as Thiel is doing, a few that do.

      • Warren Terra

        Sure, but Vandersloot followed up his first-person suit by offering $1 million to fund anyone else’s third-party suit.

        • keta

          Ah, didn’t know that bit. So yeah, much the same thing.

          • TroubleMaker13

            Seems a little worse to me actually. It’s one thing to bankroll someone’s legal fees; it’s something else entirely to pay someone to BE a plaintiff.

        • ajay

          Vandersloot followed up his first-person suit by offering $1 million to fund anyone else’s third-party suit.

          …An offer which no one has taken up.

          Can someone clarify: is awarding costs a thing in US civil courts? In other countries, if someone filed a suit and lost, the judge has the power to compel them to pay both sides’ legal costs. The idea here is that you can’t simply exploit your deeper pockets by filing suit after suit against a poorer opponent until he is driven bankrupt.
          This seems like a fairer solution – not available in the US?

          • Pseudonym

            IANAL, but I think costs can be awarded in the case of frivolous lawsuits at least. Not sure how often it happens in other cases.

            ETA: As Brett mentioned, some states have anti-SLAPP (strategic lawsuit against public participation) laws on the books.

            • rea

              costs can be awarded in the case of frivolous lawsuits

              This is rarely done–and against someone without a lot of money, funded by a 3rd party, it is rather futile.

            • Crusty

              Costs can be awarded in cases where the statute sued under provides for costs to be awarded, e.g. certain types of civil rights actions, wage and hour actions, etc., but generally not in these types of cases which involve common law causes of action. Costs can also be awarded if an agreement between the parties provides for costs to be awarded in the event that there’s litigation between them.

              Separate and apart from costs are sanctions that a court can impose on a party for certain types of frivolous conduct and sometimes the sanction will involve paying part of a party’s costs, but it is very rare and unlikely that a frivolous lawsuit would go along way and then the prevailing party be reuimbursed entirely for their costs, as the point of these sanctions isn’t really to shift costs but to prevent the conduct (once the case is in court) altogether. If the frivolous conduct is filing the suit itself, the rules provide that the party seeking sanctions has to make several requests for the frivolous party to stand down, which gives the frivolous party the opportunity to avoid getting sanctioned.

          • SamChevre

            Awarding costs is VERY rare in American courts.

            It’s the single most distinguishing characteristic of the American legal system; the American Rule has some narrow exceptions, but in almost all cases each party bears to a suit bears it’s own costs.

          • Just_Dropping_By

            For a site with “Lawyers” in its title, there sure are a lot of people ignorant about how litigation works commenting here — reasonable costs (filing fees, transcripts, etc.) are virtually always awarded to a prevailing party in American civil litigation, however reasonable fees (i.e., attorney and paralegal time) are generally not awarded unless there’s (1) an applicable prevailing party contract provision; (2) a fee shifting statute for one or more of the claims; or (3) sanctions awarded by the court for frivolous, vexatious, and/or groundless litigation. The cost/fee distinction is, accordingly, very important. Your fees incurred in defending a case might also be recoverable via a second lawsuit brought by you for malicious prosecution, abuse of process, or other claims (breach of fiduciary duty and professional negligence being common ones) depending on the specific facts.

    • Brett

      That’s pretty much it. Idaho does not have an anti-SLAPP law (hence why VanderSloot can make a career out of harassing journalists with libel suits), whereas Florida does.

  • Adam L. Penenberg ‏@Penenberg 6 hours ago
    @sarahcuda I don’t get the sudden lionizing of Valleywag. They trafficked in cruelty and gossip. Most journalists hated them. They forget?

    M. Bouffant
    ‏@MBouffant
    @Penenberg @sarahcuda Fascist billionaires came for the cruel gossips, but I was not a cruel gossip, so fuck ’em. Y’know how the rest goes?

    • ajay

      On the other hand, “large internet companies invaded the privacy of two people without justification, one of whom was a celebrity, but I was not a celebrity, and the other one was just a woman, so fuck ’em.” I know how the rest of that goes.

      • N__B

        She’s the only person in this mess who I have sympathy for.

        • dl

          mainly because she had sex with Hulk Hogan

      • farin

        The non-celebrity woman isn’t the one receiving the comically large judgment, though.

    • Brett

      I miss Classic Valleywag, with Nitasha Tiku and so forth. They were fun to read, occasionally put out some surprising news, and so forth. I even liked the petty feud they had with Pando Daily.

      • Philip

        Yeah, there was a period where Valleywag actually published some really good stuff. Then the Gawker Undermind noticed and they did a complete 180, though.

  • jeer9

    Somewhat related to the nefarious exploits of the super-rich, Dayen has a great article in TNR about the failures of the DoJ to prosecute the banksters. They pay a bit of chump change, then return to their shenanigans.

    Say, what’s Holder up to these days? Who do those Cossacks work for?

  • n00chness

    Or, you could just not maliciously defame people.

    • Pseudonym

      Someone’s been paying attention.

    • Jordan

      Lets all cry for the rich assholes, ya.

      • Pseudonym

        Rich assholes have a right to privacy too, just like mean-spirited gossip sites have a right to freedom of the press.

        • Jordan

          Fair.

          I think it was bad and dumb to publish that bit, I guess. Not really at all because it involved sex stuff with Hulk Hogan, though. That seems fair game to me, for a number of reasons. But the woman involved was in no way in a similar position, and so publishing it did violate her privacy.

          So it was pretty shitty to publish it.

          • To me, Gawker deserved to lose that suit. The dollar award, however, was ridiculous.

            • Pseudonym

              Agreed.

              Best case scenario is that the non-toxic parts of the company (which is what, everything except Gawker.com and Valleywag?) get spun off so the decent writers are insulated a bit.

              • Jordan

                valleywag was fine, but has been shuttered. There are good writers at actual gawker.com

                • Pseudonym

                  I never really followed Valleywag myself, but I know people who were pretty upset about some of its gossip and invasions of privacy, and I can’t think of much in the way of actual reporting from them. Maybe the answer is to spin of Nick Denton and a handful of other editors. Publishing a sex tape of Hulk Hogan is not journalism, and it’s a shame that certain parts of Gawker want to die on that hill.

                • Philip

                  Valleywag changed a lot over its lifetime. There was a time where they actually did a lot of good critical reporting of the tech industry, when there really wasn’t any other dedicated tech publication willing to pick fights. Honestly, there isn’t today either; occasionally The Verge or Ars Technica or someone will still do real critical coverage, but they do a lot of fawning.

                • Jordan

                  Phillip: right, this is exactly why valleywag was good. Almost nobody else with high visibility has as their brief critically reporting on silicon valley. That is a good and necessary thing to have.

            • Jordan

              Oh sure. Thats fine.

          • Warren Terra

            The story was arguably par-for-the-course sleaze for a gossip site. The video was a bridge too far, but not a $150M bridge.

  • Pseudonym

    If this is the new reality, can we get George Soros to take out Fox News?

    • farin

      If you can find a liberal judge who doesn’t believe in press freedoms, then sure. This is one of those games that works better when you can count on everyone on your side being absolutely shameless, so of course the red team has the advantage.

  • Jordan

    I like gawker and gawker sites. My daily stuff is here, a few other lefty blogs/sites, the subreddits for the nba and my mmo, espn’s nba home, the vox homepage and gawker, deadspin, jezebel, io9 and kotaku and whatever (nonio9)gizmodo or jalopnik posts get shared. They are good sites that perform a good role. Of course, sometimes they do stupid and bad things.

    If I had to disavow sites because of some incredibly stupid and offensive posts or dumb writers there is literally nothing on my current reading list that I could keep reading that isn’t maybe just someone who just posts cute cat photos. That emphatically includes LGM. Gawker does very good stuff, and it was a shame when they shuttered valleywag.

    So, anyways, whenever I read people commenting on this story with “well, ya, that is bad I guess, but fuck gawker” or something to that extent, I am internet glaring at you.

    • This is an interesting point. My sites don’t overlap much with yours. Mine would include the New York Times and, to be honest, The Millions (which is rarely offensive but is, in my opinion, wrong-headed a lot of the time).

      OTOH a site like Gawker seems to have a business model of publishing way more junk and clickbait than other sites do. That’s how they stay in business. They don’t have to rely on daily readers, anyway, because they rely on social media to promote their pieces. And that’s the only way I see them anyway. I might keep going back to a Deadspin or a single writer there for a few weeks, after I read a few things by them I like, but they start to get boring after a while. (People who like to read about pro sports for several hours a day, or about electoral politics, or Twitter outrages, may find more to appeal to them. Everyone’s mileage varies.) It’s not unreasonable to describe them as primarily a junk site that occasionally publishes something worthwhile (like Playboy did, back in the day, or the pulp things that gave Vonnegut his start).

      That has nothing to do with the legal question, though.

      • Vonnegut s.b. (I think) Campbell (and the Vonnegut character that’s based on Campbell)

      • scott_theotherone

        My sites DO overlap a lot with Jordan’s, but this bit:

        Gawker seems to have a business model of publishing way more junk and clickbait than other sites do. That’s how they stay in business. […] It’s not unreasonable to describe them as primarily a junk site that occasionally publishes something worthwhile (like Playboy did, back in the day, or the pulp things that gave Vonnegut his start).

        I agree with that, for the most part, but I guess rather than seeing them as a junk site, per se–which they may be–I view those clickbaiting/junky articles as the 2016 manner by which they pay for the good stuff, the same way newspapers used to be able to afford top flight journalists in other cities or even countries thanks in large part to their huge advertising fees. Back when I read the paper, I didn’t really pay attention to the Nordstrom’s ads, but I didn’t mind ’em either, ‘cuz they were what kept the good parts of the paper afloat. At least, that’s how I understood the business model to work.

      • Jordan

        Ya, I’d read the Times more if I could afford a subscription or whatever, but I always get locked out and am too lazy to haxor it. Have not heard of the millions, will check it out :).

        For the clickbait stuff, I guess it depends on what you are comparing it too. To the Times? Ya, sure. Compared to some of the better online properties? Ya, probably also sure, although I am unsure if those things are viable in the long term.

        Basically, I usually kind of enjoy some of the click bait stuff (its click bait for a reason) and am more than willing to forgive it for that if it keeps the good stuff being posted. Does that make sense?

  • Sebastian_h

    Fight for the Mother Jones cause. I’m 100% sure we don’t want to try to use “publishing a secretly recorded sex tape” as our rallying cry. The feminist angle on that seems astonishingly under explored btw.

    • Marc

      It really does seem as if people are ignoring the fact that Gawker actually did something wrong that deserved legal sanction.

      I’d be very concerned about wealthy people targeting the media with frivolous lawsuits. Targeting people who think that it’s jolly good fun to out relatives of famous people that they don’t like, or who think that releasing secretly recorded sex tapes is cool, is not the same thing.

      • Manny Kant

        The question, I think, is whether Gawker actually did something illegal, not whether they did something wrong. And, insane Florida jury aside, I’m not particularly convinced that they did. I’d like to, I guess, wait and see what the appeals court says about that before I come to any firm judgments about what Gawker Media “deserves”. (Either way, they don’t deserve that insane judgment).

        That’s not to say I approve of them publishing the sex tape. But I kind of tend towards the opinion that “Nick Denton being a creepy asshole” ought not be legally actionable.

        That being said, Peter Thiel is a monster, so I’m pretty much never going to be on his side of any issue where I can help it.

        • rea

          Well, you know, of course it’s illegal to steal and publish someone’s private sex video–akin to rape.

  • Breadbaker

    As the headline says, The Wages of Inequality. We once had media owned by the Charles Foster Kanes of the world, and they could fight the bosses on equal terms. Now, the moguls are bigger than we ever imagined possible, a media company can be created using a free laptop at a public library and its wifi and little more, and yet when it comes time to fight, can be outresourced and outlawyered beyond imagination.

    Parenthetically, that’s why the Justice Department can’t bring down the banks; something with billions of dollars fighting for its life has more resources than the federal government to litigate. The government doesn’t want to let that be known so it settles the cases for the shareholders’ money (which was, after all, simply the fruits of the bailout in 2008, when many of the shareholders should have been wiped out), and the officers go along knowing that they’re using the shareholders’ money to protect their asses from indictment. And the government lawyers will end up at big Wall Street firms using their prosecutions as client magnets to defend the next round. It’s a perfect system.

    Meanwhile, the cost and scope of litigation has increased incredibly. Because nothing ever really disappears that ever existed electronically, the ability to use discovery not just to find information damaging to a case, but to damage a party by simple attrition, is huge. Or by simple embarrassment.

    If one side has lawyers without limits and the other doesn’t, the pressure will be intense. The distance between those who can get pro bono representation (let alone good pro bono representation) and the next litigating party who could stand up to someone who literally doesn’t give a shit about the size of his legal bills, probably goes from the first or second percentile for wealth to the 99th. And everyone in between is at risk. Those are gross numbers, but in the wrong case they’re not outside the realm of reality.

    • ajay

      We once had media owned by the Charles Foster Kanes of the world, and they could fight the bosses on equal terms.

      This is the weirdest description of “publishing the sex tape of a 1980s C-list celebrity in the hope of getting advertising clicks” I have ever read.

      • Breadbaker

        What do you think they did yellow journalism for? The fun? The fame? Or the advertising?

        • ajay

          Also, you might want to explain why the heyday of yellow journalism coincided with the last big peak in inequality because as it stands that kind of torpedoes your argument.

          • Breadbaker

            What does that have to do with it? Lawsuits were less expensive and newspapers were harder to start. Also, women wore hoop skirts.

  • What goes around, comes around. If Thiel can back lawsuits against those he doesn’t like, people can back lawsuits against him.

    • BubbaDave

      “The law, in its majestic equality, allows the rich and the poor alike to spend millions of dollars from their private fortunes upon Internet vendettas.”

      • Warren Terra

        Also, you can only go after people for things they do, or at least that you can construe them to have done. A media organization does a lot of stuff on the public stage, talking about people and entities in ways that might upset them. Thiel may be an utter prick, but mostly not in actionable ways.

        • ColBatGuano

          I’m waiting for him to set up his Seastead so my Pirate Corp can raid it.

      • Mellano

        The remedy to vindictive billionaires maintaining lawsuits is more vindictive billionaires maintaining lawsuits.

  • N__B

    To link the two posts currently most commented on at LGM, that picture is putting me off my breakfast.

    • wca

      All that picture makes me think of is “I need to play some more Borderlands 2”.

      You don’t wanna hear about that, Vault Hunter! You wanna hear about LOOT! AND PECS! AND EXPLOSIONS! I’m Torgue, and I am here to ask you one question, and one question only: EXPLOSIONS?!

  • Crusty

    I don’t think its that big a deal and that funding lawsuits is that nefarious a strategy. Most of these types of cases are not handled on a contingency basis (and for good reasons I think) so potential plaintiffs are already starting off at a disadvantage, with a problem accessing the justice system, so Thiel is just evening the playing field. Ah, but these are not legitimate plaintiffs you say, but Sheldon Adelson’s army of trolls, well, sure, but things are still nonetheless tilted in favor of the defendant media companies. As for simply filing a high enough volume of frivolous lawsuits to bankrupt a legit company simply on legal fees, I don’t see it as that likely. Suits that have so little merit don’t go to discovery and trial.

    The only person or entity that I can think of that got their way when they shouldn’t have just by being too damn annoying with litigation is the church of scientology.

    • Buckeye623

      Not entirely true.. Anti-SLAPP legislation exists for many good reasons.

    • yet_another_lawyer

      Defending meritless suits can get expensive, but that can be solved by sanctions. In my experience, judges are far, far too lax about that. I suspect part of the reason is that their case load is overwhelming and a high percentage of lawyers claim every time what the other guy doing is the worst/most egregious abuse of the system blah blah blah. Probably just as importantly, everybody is no more than three-steps removed in the legal community and issuing sanctions against someone you kind of know “just isn’t done.”

  • Buckeye623

    Lawsuits could always be funded via third parties.. there’s never been anything preventing this.

    News outlets can always be bought, or bought off.

    I’m not sure that funding this lawsuit is any worse than simply buying Gawker through a front VC firm. It sure didn’t cost any less or take any less time.

    What’s the change, really? Super-rich people have tender fee-fees? Super-rich people are throwing their dollars around today “more than they did in a theorized past that never existed?”

    This isn’t a new method of attack. It just hadn’t happened to tabloids recently, so people forgot about it.

    Similarly, a housing bubble causing a long-term crash and decades-long economic weakness wasn’t a new phenomena [Read up on the Panic of 1873].. It’s just that it hadn’t happened recently, so everyone forgot that giving out bad loans for houses has always been bad business.

    • twbb

      Actually, they couldn’t; common law and statutory rules against champerty have been around for a while, though in recent years they have largely been abrogated or weakened.

      • Buckeye623

        Relevant Thread on the issue with a more lawyerly bent than this thread..

        1) Did Hogan actually retain control of the lawsuit?

        2) Does Thiel stand to benefit from it — aside from shutting it down, does he have a plan for a Gawker-style enterprise of his own in the future?

        3) What if the funding is in the form of Kickstarter or a high-powered pro bono lawyer?

      • Just_Dropping_By

        I guess if by “recent years” you mean the last 40 to 60 (most states got rid of those laws between the 1950s to ’70s), sure. But I find the sudden rush by various left-leaning folks to embrace champerty, maintenance, etc. prohibitions highly amusing given that it was overwhelmingly liberals who pushed to abolish those rules on the grounds that they made it more difficult for lower income people to bring otherwise meritorious lawsuits.

  • Bruce Vail

    It’s impossible to mourn the demise of Gawker, whatever the reason.

    So a really rich guy has figured out a way to game the legal system to get what he wants? Gee, not really news, is it?

  • muddy

    I thought a main part of the issue was that the lawyer was working for Thiel, and not Hogan? Wasn’t there something about the settlement negotiations not in Hogan’s financial interest, and they kept pursing beyond that because of Thiel’s personal vendetta? IAobvsNAL, but I thought I read something along those lines yesterday.

    • twbb

      If true, Hogan could file a bar complaint, but it’s hard to show malpractice when you won a huge judgment. Also, at this point he is probably happy with his lawyers.

    • Just_Dropping_By

      Even assuming that the offered settlements would have produced a better final result for Hogan (which we won’t actually know until the appellate court rules — if it upholds the judgment, Hogan is almost certainly better off than anything Gawker offered), Hogan could have negotiated with Thiel that Thiel would have the final say over whether or not to accept a settlement. That’s not an uncommon provision in agreements where one party is paying the legal fees of another party.

  • Shygetz

    I just don’t get the outrage. I should be upset about the chilling effect on the press when more of their targets have access to the courts, not just the rich ones? Sorry, hard to get upset about that. I should be upset about frivolous lawsuits draining press coffers? Billionaires don’t need proxy plaintiffs for that–they can (and do) file frivolous lawsuits against press already, and to my understanding, there are some safeguards against that (although I’m happy to listen to arguments that they are insufficient).

    But the argument here seems to be that there is a serious danger that billionaires may bankroll meritorious lawsuits against the press that, previously, would not make it to court because the plaintiff would not be able to fund the case. If that’s the argument, then you’ve lost me–press outlets having to respect the rights of both the wealthy and non-wealthy targets seems like a plus to me.

    • werewitch

      Thiel is operating in transparently bad faith here, which can reasonably contribute to our overall moral judgment of him as a meritorious lawsuit funder. But he was wise enough to choose an unambiguously meritorious lawsuit to fund, which we can take into account too.

      It’s reasonable for folks to feel worried about billionaires successfully innovating new ways to disruptively operate in transparently bad faith, with an eye toward the hypothetical future, even if the present proof-of-concept wasn’t outrageous.

  • rewenzo

    Something I haven’t seen addressed is the issue of whether Thiel, and not Hogan, was calling the shots in the litigation. IIRC, one of the ways people began to suspect Thiel or another third party was funding the litigation was because Hogan’s lawyers were taking positions that did not seem to be in Hogan’s interests. It could be nothing – it could be that if Hogan has a war chest of $10 million his financial interests are much different than you would think. It could also be that Florida ethics are more lax on this sort of thing. But to me that’s troubling.

    • werewitch

      Hogan’s lawyers were taking positions that did not seem to be in Hogan’s interests.

      I saw that too but that ‘seem to be’ is doing a lot of work. Not in his purely financial interests, mayyyyybe, but I’d be very surprised if “let’s punish the Gawker bastards as soundly as we can” were not in Hogan’s personal interests.

      I mean, if I were suing for invasion of privacy and had the opportunity to settle, I’d have to at least consider if the settlement was worth refusing as a matter of principle. People could say that’s not financially sound, but maybe that wouldn’t be my top concern, especially if my lawyers’ costs were covered. I’d probably settle, but someone with more of a righteous-punishment mentality might not…

  • Sebastian_h

    A useful way of thinking about it is applying whatever rule you’re considering to unions, the ACLU, or to environmental suits. If you can’t think of a good rule(that isn’t “organizations I like get to fund lawsuits”) that covers this without shutting them down you have a problem.

  • eivind

    This lawsuit sponsorship sounds similar to how Max Mosley helped take down News of the World for their phone hacking crimes.

    https://en.wikipedia.org/wiki/Max_Mosley#Sex_scandal :

    In July 2011, The Daily Telegraph reported that Mosley was financially guaranteeing the court costs of claimants who may have been subjected to phone hacking by the News of the World. Mosley refused to comment at the time, but he later gave a TV interview to the BBC and telephone interview to Reuters where he confirmed the story.[139]

    —–

    https://en.wikipedia.org/wiki/News_International_phone_hacking_scandal

  • nosmo king

    You know what, I’m just going to say it: I don’t think that multimillionaires and billionaires SHOULD have any expectation of privacy. Here’s a test that could be used: have you hired a publicist, a publicity firm, or a PR firm? Then you have no ‘right to privacy’. You have just demonstrated a desire to bend the discourse about yourself, therefore you shouldn’t be surprised or upset at other people trying to do the same.

    I think we all need to know the names and proclivities of these moneybags, as they become increasingly willing to try and destroy all manner of public institutions while building gilded temples to themselves. Does Gawker go too far sometimes? Hell yes. But isn’t the alternative worse?

    • farin

      Not worse for the only people who matter, self-involved reactionary billionaires. They’ll be perfectly happy to have a media legally mandated to ignore their bad behavior.

    • Lager Lout

      You’re really sure you’ve thought that one through, are you? If the personal lives of the rich or of PR clients are fair game, then what hope would there be for the rest of us, who just use facebook?
      Be careful what you wish for…

      • farin

        But this judgment doesn’t do anything for the non-rich-and-famous. Hogan got a stupid amount of money because he convinced the jury that his personal “brand” was worth that much. If your brand isn’t, then this isn’t particularly encouraging.

        • Lager Lout

          It sets an excellent precendent in favor of individual privacy. And not all of the award was based on Hogan’s brand value: some of it was for emotional damage and punitive costs.
          Turns out that the creepy slogan “the personal is political” is not in fact a legal principle. And that’s a very good thing for everyone.

    • ajay

      I don’t think that multimillionaires and billionaires SHOULD have any expectation of privacy. Here’s a test that could be used: have you hired a publicist, a publicity firm, or a PR firm? Then you have no ‘right to privacy’.

      So all those actors who got their nude photos leaked during the iCloud hack in 2014, you’re basically just “suck it up bitch you’re in the game”? Jennifer Lawrence (to pick one victim) is a multimillionaire, and she’s definitely hired a publicist.

      Some fairly well-off woman who writes a reasonably successful book has no right to privacy? Paul Krugman has no right to privacy?

      • Mrs Tilton

        Paul Krugman has no right to privacy?

        OMG, you have a copy of the Krugman Sex Tape???!!!

        • The Temporary Name

          Model after model, none of them quite works out…

      • nosmo king

        Well then, you would have spiked the story about William Bennett’s gambling addiction, right? Because that’s his private business? Or is it newsworthy that a conservative scold has his own issues with Mammon? Or what about all those right-wingers, Hastert being the latest, and their underage victims?

        When it comes to money, influence, and privacy, one size does not fit all. The more money you have, the more influence you have, the less privacy you should expect. Especially when throw your money around to try and bend the media to your will. You’re asking where I draw the line, where do you draw it?

      • farin

        Someone was punished in the icloud hack: the hacker. Reddit isn’t on the hook for hosting the pictures, nor are the gossip sites that did so. If we were talking about prosecuting the person who gave the tape to Gawker, it would be a much easier case (assuming the recording and release really were unknown to and against the wishes of Hogan).

        • nosmo king

          This exactly. Given that the source of the tape AFAIK is unknown, and the lawsuit was filed with someone else’s money, how exactly is Gawker owing this money to Hogan?

          …I now remember (probably incorrectly) that the source of the tape was surmised to be the aggrieved Mr. Love Sponge. Why not get the money from him? Oh yeah, right. They wanted Gawker breaking money, not Love Sponge money. Motivations matter.

        • Lager Lout

          Gawker isn’t being held criminally liable. They are on the hook for civil damages, for violating a person’s privacy.
          Two different things.

  • Snuff curry

    Just a day or two ago we heard at length from commenters about the Chilling Effects the ousting of Bruenig would have on young, college-attending, journalism-minded, labor-oriented white men. Where in heaven have they run off to? Journalists are being silenced over here!

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