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free speech and its limits
The Great Gawker Freakout
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  • Andrew Allison

    Surely you meant the Far-Left media [grin]

  • deus clovis

    Surely a distinction has to made between reporting for the benefit of public interest, and ‘reporting’ for gossip and page views. The latter, which Gawker falls under, cannot convincingly make the argument of freedom of press.

    • f1b0nacc1

      Why must such a distinction ‘surely be made’, and just who gets to make that distinction? If Thiel were a liberal and Gawker were a right wing rag, does anyone honestly believe that the press would be weeping? Replace ‘Soros’ for Thiel and ‘Fox News’ for Gawker, then tell me that we can ‘surely’ make a distinction…

      • deus clovis

        I am not making a left or right wing argument. What I said should apply to all instances regardless of political leanings where what’s written about has nothing to do with the public interest, and seemingly only for gossip and page views.
        Framing it as purely an issue about freedom of speech, and the unchecked powers of the wealthy, are the typical blunt instruments used to support a slippery slope argument. Panama papers? Yes, that is in the public interest. Publishing Hogan’s tape isn’t, and isn’t ‘freedom of the press’, neither is outing people. That is bullying. And that distinction can surely be made, if not by law, then at least, by common sense.

        • f1b0nacc1

          I understand (and sympathize) with the impetus behind your argument, but ultimately I must reject it. You presuppose that there is universal (or even general) agreement about what constitutes acceptable journalism, and that simply is not the case. Putin’s people, for instance (and you can find examples of that ilk here, sad to say) do not find the Panama Papers fair game, while others find Hulk Hogan’s complaints about his privacy being eviscerated entirely reasonable. Without debating about who is right or wrong, there is clearly room for debate, and such debate isn’t going to be resolved if we argue that some reporting on these topics is ‘out of bounds’ or less worthy than other forms. Was Wikileaks legitimate whistleblowing or simply political agitation? If a wealthy friend helps me sue a blog that has defamed me is that bullying by a rich man or the wealthy ‘giving back to the community’ by helping those less fortunate? And what do we really know about the motivations? Thiel, it is said, wants payback for being outed…if so, and if we agree (as you obviously do, since you said it) that Thiel was ‘bullied’, why is his response to this unreasonable.
          My point is that “unchecked powers of the wealthy” are entirely in the eye of the beholder, and there is no general agreement as to what they are. You have one definition for them, others don’t agree, but you propose to use yours to muzzle free speech, which raises the bar somewhat for standards of proof. Calling it a slipper slope argument begs the question…what standards do you use to support your contention that a distinction can surely be made, and just what distinction do you propose to make? I don’t believe that you can do this, certainly not in a general enough sense to be useful.

          • deus clovis

            The distinction in this instance, has been made by a jury, which is the best we can do at this point, barring clear cut libel laws (which Trump of course says he wants to ‘open up’). But to address your points: 1) I don’t think Thiel’s motivations for funding Hogan’s suit should matter, because what then are Gawker’s motivations in its ‘hit pieces’? Citing freedom of speech and press as default positions are not good enough when the subject’s privacy and reputation are being violated. Gawker’s business model I think holds more clues as to why these things are published, not those higher ideals. Just because Gawker has page view targets to hit, does not mean it can use the first amendment as an excuse to trample on an individual’s privacy. If Gawker and other media are finding it hard to sustain their viewership without ‘bullying’ articles, then I say we defend the individual’s right to privacy, not their business models. I can go on about how their business models ended up like this, but that’s besides the point. You get my drift. 2) I agree there isn’t a ‘general enough’ case which can be applied without the either argument quickly jumping to slippery slope positions such as: “.. the end of the republic”, or “no media would dare to take on the rich and powerful anymore”. And on the other side: “I want revenge for what they did to me and others”. In fairness, for people who feel indignant and have been victimized, I don’t believe payback is a dirty word. Sponsors and interest groups have long funded suits against airlines etc. when the plaintiffs are not financially able to take on large corporations. So instead of “payback”, I think “leveling the playing field” is a better term. Ultimately, I believe a middle ground framework can be reached to make such a distinction without either side feeling excessive fear that their rights are being violated. The alternative is that we stick to a free-for-all, no holds barred media which keeps using the first amendment as an excuse to guard against challenges to their business models. If an evolving business model is driving changes in editorial direction, laws must catch up.

          • deus clovis

            The distinction in this instance, has been made by a jury, which is the best we can do at this point, barring clear cut libel laws (which Trump of course says he wants to ‘open up’). But to address your points: 1) I don’t think Thiel’s motivations for funding Hogan’s suit should matter, because what then are Gawker’s motivations in its ‘hit pieces’? Gawker’s business model I think holds more clues as to why these things are published. Just because Gawker has page view targets to hit, does not mean it can use the first amendment as an excuse to trample on an individual’s privacy. If Gawker and other media are finding it hard to sustain their viewership without ‘bullying’ articles, then I say we defend the individual’s right to privacy, not their business models. I can go on about how their business models ended up like this, but that’s besides the point. You get my drift. 2) I agree there isn’t a ‘general enough’ case which can be applied without the either argument quickly jumping to slippery slope positions such as: “.. the end of the republic”, or “No media will now dare to dig dirt on the powerful”, and on the other side: “I need revenge for what they did to me and others”. For those who have been victimized, I don’t think “payback” is a dirty word. Sponsors and interest groups have long funded suits against airlines etc. when individuals have been financially unable to play the long legal bloodsport against large corporations. So instead of “payback”, I think “leveling the playing field” is the better term. I believe ultimately, a framework can be reached without either side feeling excessive fear that their rights have been violated and will be abused. My point is this: if the media’s fast-evolving business is driving changes in editorial direction, laws much catch up. The alternative is that we stick to a free-for-all, no holds barred media that keeps using the first amendment as an excuse to guard against challenges to their business model. Saying we can never reach a nuanced and balanced distinction is a cop out.

          • f1b0nacc1

            Please don’t mistake me for a defender of Gawker…they are a rag and they have gotten what they so richly deserve. These were the folks who helped push the Gamergate debacle, after all. With that said, they would deny that their business model is as obvious as you seem to believe it is, and who are you or I to dispute this. Pulitzer was one of the original Yellow Journalists, and we remember him and his ilk as heroes…are you so absolutely sure that Gawker is different? I think it unlikely, but even if they are as scummy as you and I both think that they are, what is the justification for removing their freedom of speech? Libel laws handle this quite nicely, and the Gawker case is evidence of that. Thiel just made use of the weapons available, and acted within the law. We didn’t need to determine if Gawker’s speech was ‘worthy’ or not, nor should we.

            The First Amendment prevents the GOVERNMENT from restricting speech, it says nothing about private individuals or organizations from attempting to do so. As a free-speech absolutist, I think that this is perhaps a bit too restrictive, but libel laws do a fine job of providing a counterweight to an out-of-control press. I have no love for Nick Denton, but less love for a government bureaucrat deciding what he (Denton) can say. If Denton defames someone, he will face libel suits….and in this case he has lost. The likely losers in ‘leveling the playing field’ would be the individuals who couldn’t afford to fight not only big corporations but big government that could easily judge THEIR speech to be unworthy of protection.

          • deus clovis

            I will agree with you on this – that no government bureaucrat should be allowed to decide what Denton and other publishers can write. I have less love for big government than an out-of-control press. And quite the contrary, I do not think Gawker is absolutely scummy. Only in instances where at the expense of an individual’s and their family’s privacies, they have chosen, very complacently, to take for granted that nothing could ever befall them in their pursuit for page views. I would compare such breaches on the same spectrum as the Paparazzi not knowing where the line is. Also freedom of speech does not equal absolute and unlimited freedom of speech. A line can be drawn without removing their rights completely. Cheers!

          • f1b0nacc1

            We will have to disagree regarding freedom of speech…no, you cannot draw such a line without tacitly giving the power to remove it entirely to those that you have allowed to make the choice. A judge who can muzzle the Paparazzi (however loathesome they are, and I have had several close friends victimized by them), can also decide to muzzle you from speaking out against their favored candidates, as long as they can convince enough other judges to support them. The founders referred to inalienable rights for a reason….they cannot be diluted or fractionalized….

            I understand that your intentions are good here, and I don’t wish to suggest that you mean ill. My objection is that your reasonable desires will be exploited by the unreasonable to further their demands…

          • deus clovis

            I understand your position. Then it seems the only way to protect and preserve freedom of speech is a good dose of restrain and self-censorship from the media, because if they don’t draw the lines themselves, a jury will. Of course, you would argue that any restrain due to fear of reprisal is oppressive.

          • f1b0nacc1

            Not at all…in fact I think that the jury (chosen at random from citizens, dismissed when it is finished) is in fact the ideal way to discipline abuse. Denton will learn manners from this, or he will be forced to depart, and I won’t mourn his passage. Freedom of speech does NOT imply freedom from consequences, after all.

  • Mark Neil

    “les 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.”

    Of course they’re angry about this tactic being used against them… it’s THEIR tactic. It’s how they generally stave off lawsuits… by muddying the courts, burdening them under appeals, delays and whatever else they can to bleed people suing them dry of funding. They did the same thing to Hogan, not realizing he had financial backing and so could endure it.

    • DiogenesDespairs

      The First Amendment as rea by the Left: Free speech for me, none for thee.

      • SkippyFlipjack

        The First Amendment as read by the right: Free speech for me, and nobody should be allowed to call me an assh*le for saying assh*ly stuff.

  • Matt_Thullen

    Note that when the New York Times Magazine came out with their profile of Ben Rhodes and his use of sympathetic members of the media to create a false “echo chamber” regarding the Iran nuclear deal, the left wing media yawned and either ignored the story or circled the wagons around the reporters named as Rhodes’ useful idiots.

    Note as well that when it was revealed that one of Rhode’s echo chamber-creating groups gave NPR $700,000, and NPR promptly dropped critics of the Iran deal from their coverage, the left wing media yawned and ignored the story.

    Yet now they’re upset over litigation funding, which has been going on for years?

    • Jim__L

      You know, this seems to be p*ssing off all the right people. =)

  • WhatsWrongWithWensleydale

    “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.”

    Saying someone is behaving poorly is not equivalent to questioning their right to engage in that behavior.

  • Bartholomew

    This article attacks a straw man, at least with regard to the great majority of criticism of Thiel. Few if any commentators are calling for a “policy response” (at least Mr. Willick cites none) and to the extent they are, their failure to come up with a workable one in 24 hours, in an area that has posed great difficulties for centuries, does not indicate that they will never be able to do so, or that they should not point out bad behavior where they see it. And that is what the outrage represents–outrage against someone’s peevish and dangerous conduct. Thoughtful conservatives, of all people, should recognize that behavior can be recognized as immoral, unwise, or dangerous without necessarily demanding the subject of government intrusion.

    Furthermore, the article’s argument that the response is “over-the-top,” including its reliance on the Chemerinsky quote, is not well taken. The outrage is not over the Hogan lawsuit alone, nor over any legal precedents that lawsuit establishes or doesn’t establish. The concern is with Thiel’s broader campaign against Gawker, in which he is funding numerous lawsuits, designed to harass Gawker, drain its resources, scare off financial backers, and ultimately put it out of business. All over an article which, while it may have been in poor taste or even “immoral, unwise, or dangerous” was presumably a legal exercise of Gawker’s first amendment right. If Thiel thinks otherwise, he of course could have brought suit and tested his view in court. Instead, he has chosen to use the judicial system to wage his personal vendetta and attempt to put an entrepreneurial innovator out of business. Perhaps the left is hypocritical in suddenly discovering the ills of over-litigiousness, but that hardly excuses the right from the same hypocrisy in reverse.

  • Greg Olsen

    This isn’t exercising freedom of speech. He is exercising another First Amendment freedom that of assembly. Otherwise I agree with the sentiment. The law is meant to be impartial and protect everyone, not merely the powerless. There are institutional controls to prevent frivolous lawsuits and vexatious litigation. The Gawker-Hogan case is neither.

    • Bartholomew

      If we are going to be pedantic, Thiel’s litigation falls under the right to petition the government for the redress of grievances, although the distinction between that and the right to assemble is not always recognized.

  • SkippyFlipjack

    The best possible rebuttal to this piece comes from Josh himself. I’ll quote in its entirety so people don’t miss it. tl;dr emphasis mine.

    I’ve gotten a flood of responses to my post on the news that tech billionaire Peter Thiel was bankrolling Hulk Hogan’s lawsuit against Gawker and now a raft of unrelated lawsuits against the same website. Most agreed with my take; some didn’t. But the critiques seemed to be typified by this response in The American Interest which a number of people sent me. So I thought I’d depart from form and respond directly.

    Jason Willick’s arguments range from claiming I said the Hogan suit was ‘frivolous’, which I didn’t, to a bunch of verbiage that might be summarized as “Gawker sucks”, which it probably does. The real gist focused on two points. First, that Thiel is only exercising his own free speech in bankrolling the lawsuit. We’re hypocrites apparently if we view what Thiel is doing any differently than what the ACLU does when it chooses to back meritorious lawsuits. If we want to change this we should get behind ‘tort reform,’ says Willick.

    Then there’s a complicated paragraph about how people on the left think First Amendment freedoms do or should only count for the weak, not the strong. The whole paragraph might be a tragically failed attempt to critique intersectionality or someone getting lost in a rabbit hole about ‘subjectivity’. Foucault is like crack, people: it will fuck you up.

    In any case, I can only speak for myself and say that I don’t care or believe or talk about those stupid things. But the whole piece amounts to a massive and fairly tendentious effort to ignore the main criticism of Thiel, and incidentally why the ACLU analogy is so silly.

    If this is all so righteous by all means Thiel should openly bankroll suits against Gawker. The fact that he tried to do it secretly speaks for itself. There is simply no sustainable argument that Thiel’s actions are righteous that can contend with his desire to do it in secret – just as there’s really no sustainable argument that Thiel is a “libertarian” when he becomes a convention delegate for Donald Trump, but that’s another story.

    When extremely wealthy people throw their wealth around in politics there is at least some self-correcting mechanism at work. Usually. Under current Supreme Court jurisprudence the Koch Brothers have tried and to a great degree have succeeded in setting up their own private Republican party which they use to shape, in many cases dominate the political process. That’s not great. But there are various laws in place that ensure that they mainly have to do so publicly. The ACLU of course does this openly as well.

    Indeed, what Thiel is doing used to be illegal. There’s even an archaic, Anglo-Norman word for the practice: chamberty, which the dictionary defines as “an illegal agreement in which a person with no previous interest in a lawsuit finances it with a view to sharing the disputed property if the suit succeeds.” If, as Thiel claims, he was not looking for any monetary reward but simply pursuing a private grudge, then it is called “maintenance.” But both can come under the heading of another hoary word: barratry, defined as “vexatious litigation or incitement to it.”

    In any case, it was illegal. But it’s not anymore (though what Thiel is doing is at least in the proximity of what are called anti-SLAPP laws). But even if these specific torts and laws are no longer in place, it is still a general and needful principle that the civil law exists to provide relief to injured parties and to pursue remedies in the public interest. It’s not there to pursue private vengeance by stealth. If we’re going to pretend that Thiel’s tort jihad might be as much as in the public interest as an ACLU suit, good luck with that. But sure, let the public decide. Do it in public. Don’t hide.

    What Thiel’s actions and The American Interest article both point to this: One of the great trends of our time is not simply to give greater and greater rein for the extremely wealthy to use their wealth in the public square but the claim that they need additional protections from those accorded everyone else or that they need to be allowed to do so in secret. Otherwise, they risk being “villified” or “demonized.” In other words, the sheer magnitude of their power and the paucity of their numbers require special rights to protect them against the reputational consequences of their actions.

    Free speech goes both ways. It is a modern and questionable innovation to claim that the mere spending of money amounts to speech. But even today in today’s era of degraded logic, speech cannot be silent. If something gets the protection of free speech it should, indeed logically must, be out loud. Under current law, Thiel can try to destroy publications because of private vengeance. But he should be required to and should do so openly.

    Doing it in secret not only makes him a coward. It’s dangerous. Simple as that.

  • FriendlyGoat

    Some of us who are “left of center” would be fine with tattle rags and tattle sites knocked down a few notches. My only regret in the Hogan episode is that the enrichment from the verdict rendered to make a legal precedent—— is going to a colossal jerk.

  • Jeff Ryan

    Marshall did not say the Hogan lawsuit was frivolous. Go back and read what he said again.

    Then think of the implications of what you’re saying.

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