The left-of-center media world is up in arms over news that Peter Thiel—the iconoclastic Silicon Valley billionaire investor—bankrolled a portion of Hulk Hogan’s invasion-of-privacy lawsuit against Gawker Media, the freewheeling and often cruel gossip site. Hogan, a celebrity wrestler, sued Gawker after it published a sex tape portraying him. He was ultimately awarded a stunning judgment of $140 million dollars by a Florida jury (although Gawker is appealing).Thiel presumably footed the bill in his own quest for vengeance against Gawker, which has taken on figures in Silicon Valley in sometimes productive but sometimes personal ways, and which outed him as gay in 2007. In the judgment of many usually sober-minded journalists, Thiel’s involvement in the whole sordid affair represents an existential threat to the Republic.
A billionaire secretly suing a publication into oblivion is a million times bigger threat to free speech than 'safe spaces'— Christopher Hayes (@chrislhayes) May 25, 2016
We don’t have to go any further than Donald Trump to know that the incredibly rich often use frivolous litigation to intimidate critics and bludgeon enemies. […]
Being able to give massive political contributions actually pales in comparison to the impact of being able to destroy a publication you don’t like by combining the machinery of the courts with anonymity and unlimited funds to bleed a publication dry. […]
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.
It seems worth pausing to note just how over-the-top this response has been. First of all, contra Marshall, Hogan’s lawsuit was not “frivolous”—at least, not in the mind of the judge, who allowed the suit to proceed over Gawker’s many appeals, nor in the minds of members of the jury, who were so disgusted by Gawker’s conduct that they ordered the mischievous media mavens to pay Hogan tens of millions of dollars more than he asked for. And it is not at all clear that Thiel and Hogan did anything to menace press freedom: As the legal scholar Erwin Chemerinsky told the New York Times when the verdict came out: “I think this case establishes a very limited proposition: It is an invasion of privacy to make publicly available a tape of a person having sex without that person’s consent.”
It’s also not clear what policy response Gawker’s outraged defenders would recommend. Put caps on the amount of money people can contribute to legal efforts they sympathize with? That would put the ACLU and any number of advocacy groups out of business. It would also represent a far greater threat to free expression than a court-imposed legal liability for the non-consensual publication of what is essentially revenge porn. If Marshall and others are worried about the superrich harassing critics with genuinely frivolous lawsuits—as, yes, authoritarian characters like Donald Trump have attempted to do—they would have more success backing tort reform measures to limit litigiousness overall than attacking Thiel for contributing to a legitimate cause he has good reason to support.
This whole episode illustrates an unfortunate free speech pathology that has grown increasingly widespread in recent years: The idea that First Amendment freedoms are designed to be used by the little fish against the big fish, and that “punching down” is an abuse of the privilege. This view has been around for a long time—Finley Peter Dunne famously remarked in 1902 that the role of the press is to “afflict the comfortable and comfort the afflicted”—and it is, in fact, defensible as a general guiding principle. The problem, as Ross Douthat has pointed out (in the context of the Charlie Hebdo massacre), is that the question of who is “privileged” and who isn’t is a fundamentally subjective and political one. To his critics, Thiel, a right-wing billionaire, is punching down against the no-holds-barred, Jacobin-esque media company. To the rest of us, it’s not at all clear that the punches were only being thrown in one direction.
Fortunately, this debate does not need to be resolved, because our First Amendment protects the speech rights of everyone, regardless of where they reside on the left-wing privilege totem poll. And that means Peter Thiel’s right to back Hogan’s cause is not and should not be in dispute, no matter how much Gawker-sympathizers hand-wave about how the wealthy contrarian is ushering in a totalitarian oligarchy.