With the Gawker Sale, What’s Next for the First Amendment?

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A conversation with Peter Scheer, executive director of the First Amendment coalition.

By Ted Scheinman

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PayPal co-founder Peter Thiel speaks on the last day of the Republican National Convention in Cleveland, Ohio, on July 21, 2016. (Photo: Jim Watson/AFP/Getty Images)

The immensely influential Gawker.com, which gave the Internet so much of its vernacular and so many of its stars, is about to go silent. Nick Denton, founder of Gawker, announced that the flagship website would shut down next week, and that Univision had bought most other elements of the Gawker media network. The sale comes four months after a Florida jury handed down a crippling verdict against Denton and editor A.J. Daulerio for having published an explicit tape of Hulk Hogan in flagrante delicto. Only later did it emerge that Silicon Valley billionaire Peter Thiel (a co-founder of PayPal who warms a seat on Facebook’s board) had secretly bankrolled the Hogan lawsuit — an alarming bit of news for reporters whose subjects happen to be as thin-skinned as they are wealthy.

Even journalists who don’t traffic in sex tapes are apprehensive about the First-Amendment implications of the Hogan decision. On Friday, Pacific Standard spoke with Peter Scheer, executive director of the First Amendment Coalition, to talk about the demise of Gawker.com — and about the chilling effects that will likely emerge from the Hogan affair.

Are you sick of talking about the Gawker trial?

I have been thinking a fair amount about it. I’m deeply troubled, as I think a lot of people are, by the fact that an individual with very deep pockets, Peter Thiel in this case, is able to silence a publication that he disagrees with, or that he just doesn’t like. On the other hand, this is not an example of a frivolous lawsuit that had no merit and was just a pretext for harassing a publication — because the underlying lawsuit involving Hulk Hogan and Gawker, whether or not you agree with the outcome, you can’t dismiss this as a frivolous case. What they did there does constitute some form of invasion of privacy.

What are the concerns when it comes to shadow-funding litigation in the way Thiel did here?

What’s wrong with somebody underwriting another person’s lawsuit? Not just the fact that Hogan sued Gawker and got a big judgment, but the fact that what was driving this litigation — and apparently driving it to the end-game of Gawker’s demise — was a very wealthy individual who feels passionately that Gawker’s kind of journalism is a threat to civil society, and certainly wanted to punish them. Whether he wanted to drive them out of business, I don’t really know. But let’s assume the worst — and he succeeded. That whole scenario is one that troubles a lot of people.

Some people have asked whether it should even be possible for someone who isn’t himself part of a lawsuit to come in and finance that litigation and drive this kind of destructive result. The problem with that is that it happens all the time, and people aren’t troubled by it! For example, when my organization files a lawsuit against somebody, the cost of that will be underwritten by others: by funders, by contributors to the organization, by the law firm that’s doing the work at a deeply discounted or pro-bono basis. And also there’s a whole industry out there where actual investors, who don’t care about the underlying issue, nonetheless see investment opportunities in financing someone else’s litigation.

So what’s the difference between Thiel and all those different examples? There might not be much, but one possible difference is that, at least in the case of an investor like a hedge fund, which will go out and finance complex and costly litigation, at least those investors are behaving rationally in economic terms. They are going to spend only so much money on lawyers to achieve a favorable litigation outcome as is warranted by probability of success. And if costs exceed benefit, they will pull the plug. They’re investors. And non-profits like mine or the [American Civil Liberties Union], we might not be quite so rational because we’re not in it for investment at all, but we operate under significant resource constraints, so the protection that comes from rationality applies there too. The ACLU wouldn’t be able to spend every dollar in all of its bank accounts to drive some bad guy out of business because that would be the end of the ACLU. So the marketplace, so to speak, provides some protection against the Thiel phenomenon.

But people like Thiel are not held back by any financial strictures.

Right. What’s different potentially about Thiel and makes it scarier is that the market doesn’t limit him: He wasn’t doing this to make money—ironically, he may end up making money—and would have spent a lot of money just to ruin Gawker with legal fees. And so I think [Thiel] poses a more dangerous threat to the First Amendment than other typical situations where a third party is financing somebody else’s lawsuit.

Did you read Gawker?

I was never a regular reader of Gawker or a fan; I certainly think what they did in this instance, what they were sued over, was indefensible — not journalism. That’s not why we have a First Amendment. On the other hand, there are so many talented people associated with Gawker. Not everything was like [the Hogan story]. In some areas, certainly, Gawker was a very legitimate, controversial outlet for news and opinion. It ought not to have suffered this ultimate penalty.

What is the legacy of the Gawker/Hogan affair likely to be?

I’m afraid that the legacy will be that journalists everywhere are not quite sure what went wrong in this case, in terms of First-Amendment protections, and journalists everywhere will take the lesson that they need to dial back whenever they may be writing something that is critical of outspoken individuals who have huge financial resources. And, for example, that would include writing about Donald Trump: Say five years from now, if Trump loses and people are writing critical post-mortems, will they have to worry that Trump will turn around and sue them? Because of the Gawker trial, I fear that many journalists will wonder, “Could that happen to me, even in writing about Trump?” They will be censoring themselves. That is the worst outcome here, and it’s quite likely.

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