Friday, June 03, 2016

Why the Ruling Against Gawker Isn't the Doomsday Scenario Some Are Making It Out to Be

I'm an editor for the oldest relic in the media book -- a newspaper -- and a gossipy blogger, so one might assume I am doubly outraged and concerned about the recent ruling against Gawker Media. But the truth of the matter is I'm not nearly as sold on the idea that it is such a slippery slope as self-proclaimed Gawker victim Stephen Marche ("Gawker Smeared Me, and Yet I Stand With It"), Boy Culture's Matthew #IStandWithGawker Rettenmund and most other journalists are.

Here's why: Terry Bollea (Hulk Hogan) didn't sue Gawker Media for libel or defamation of character, so the Sullivan rule isn't really what we're talking about here. (For non-First Amendment types, once you're a public figure, the burden for libel/defamation is "actual malice." which means the offender would have had to have published something "with reckless disregard of whether it was false or not.") Bollea sued for invasion of privacy, because the site posted footage of him having sex with a friend's wife in the privacy of his own home -- which he testified under oath he did not even know was being recorded. The right to privacy -- and expectation of privacy -- is an entirely different issue, and one that isn't forfeited just because you're famous. As a result, Gawker argued that the Hulk Hogan sex tape was "newsworthy," which I suppose could be said of anything a famous person does.

But if "newsworthy" items (obtained by any means possible) should always be protected, then why did the 2nd Circuit Court of Appeals decide photographer Ron Galella had to keep any distance away from Jacqueline Onassis? Why did Peter Brandt feel the need to pay Jennifer Aniston to settle a lawsuit she filed against him alleging he invaded her privacy through "invasive, intrusive and unlawful measures" by photographing her in her home with a telephoto lens? And why stop there -- why was Erin Andrews allowed to sue a hotel chain when video of her dressing in one of its rooms was posted online? Because everyone -- even the rich and famous -- has a right to privacy in certain situations. (If we want to talk about how stupid juries are -- that they would award Bollea $140 million is absurd and should definitely be reduced by an appeals court -- then that's another thing all together. Sadly, these are the same people who will help pick our next president.)

But just because Bollea's backer turned out to be a thin-skinned Trump supporter doesn't mean Gawker didn't cross the line in this case. I get what people are afraid of here. But the idea that "Silicon Valley billionaires" are suddenly going to have this chilling effect on the media -- "censorship via threat of financial ruin" -- sounds pretty far-fetched, and reminds me a little bit of how many of us first reacted to Citizens United. Like Thiel, it completely sucks that it exists -- and we can all agree the world would be a better place without both. But in the end, the Koch brothers spent at least $400 million and Sheldon Adelson spent at least $150 million (and probably more that we'll never know about thanks to the shitty ruling) to defeat President Obama (and influence other races) in 2012 and came away with very little to show for it -- and the same thing's going to happen this year. (I do realize Citizens United hasn't bought any of the big elections, but has had a detrimental effect on state legislatures.) 

Don't get me wrong -- I'm not not with Gawker. But what exactly am I supposed to be so afraid of here? That Gawker can still say anything it wants about public figures -- Jack Dorsey, for instance -- but then can't also turn around and rip an unknown Twitter programmer (by name) to pieces -- which may very well constitute defamation against him/her -- without fear that this person might now occasionally have the means (via Thiel or whoever) to fight back? I'm OK with that.  

If the argument is that media outlets will go broke merely defending "frivolous" lawsuits, then this certainly isn't the "precedent setter" to fear opening the floodgates, because like it or not, the Hulk Hogan case is a legitimate one. Long before it got to this point, it started with Bollea asking them to take the video down. (I've been in the position many times and weigh the pros and cons of acquiescing before I do anything.) Gawker believed it was in the right and chose to hang its hat on this case, assuming it had the upper hand and then found out (the hard way) it didn't. Do I think no one has the right to challenge them just because a nut helped out? Of course not.  My feeling is Thiel can pump all the money he wants into his revenge lawsuits, but only the ones that would have succeeded on their merits anyway will end up prevailing. (Is it so hard to believe a jury fairly concluded Bollea's privacy was invaded here?)

Gawker has positioned itself as the David in this situation, nobly trying to defend freedom of the press, when in fact more often than not it is the Goliath. Just ask Justine Sacco. Or David Geithner. You know who agrees with me? Sam Biddle and Nick Denton ... of Gawker


Matthew said...

Maybe, but the precedent is there for people like Thiel to go after sites regardless of the merits of the argument.

I think Gawker is going to win on appeal; we'll see.

P.S. The reaction to Citizens United was not over-the-top; Obama winning or losing wasn't the only thing to worry about regarding that horrendous decision.

Matthew said...

Also, you're focusing on lawsuits that prevail; though not the case with Hulk's, the real burden via lawsuits comes in simply defending them. It's crazy expensive.

Kenneth M. Walsh said...

@Matthew: But that's implying this case was without merit. Do you actually believe that? (Seriously.)

And what's really changed here?

Mark Zuckerberg still can't sue when they make fun of him. But now there's an off chance some unknown programmer at Facebook gets ripped a new one -- and it actually does defame/ruin him/her -- and he/she might be able to fight back? Is that necessarily a bad thing?

I'm not sold on the idea that the floodgates have been opened by this case.

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