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free speech and its limits
The Gawker Precedent
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  • Andrew Allison

    Cliff notes: “A jury determined that Gawker had broken the law by publishing Hogan’s stolen sex tape without his consent, and that he was entitled to damages.”. The rest is prattle

  • FriendlyGoat

    Should we assume the plaintiff-attorney community was surprised by the finding and the size of the judgment in the Hogan/Gawker case? One would think there might have been hundreds of good contingent-fee lawyers willing to pursue this litigation without any need for advance funding by Peter Thiel, unless most of those lawyers thought Hogan would lose.

    • Andrew Allison

      Is that a comment on the intelligence of ambulance chasers? Or on the fact that the plaintiff was sufficiently confident not to donate a third-or-so of the judgement to them?

      • FriendlyGoat

        It is a comment on the controversy about whether outside money should be used to front the legal costs for litigation. Contingent-fee lawyers do it all the time, and we want them to in order to assure that cases can be brought.

        • Andrew Allison

          You’re attempting to change the subject. The difference between “outside money” (as opposed to what, friends and relatives?) fronting legal costs and and contingency fees is that former charges for its time and effort, not a third-or-so of the proceeds. This has nothing whatsoever to do with the fact that we need contingent-fee lawyers.

          • FriendlyGoat

            I do not believe, as TAI apparently likewise does not, that we need any oversight at all on the subject of who pays a lawyer to pursue a suit.

          • Andrew Allison

            There you go again [grin]. The only suggestion that we need any oversight came from you. Furthermore, since you’ve made your opinion of Hogan clear, you should perhaps recuse yourself from further discussion.

          • FriendlyGoat

            Why? A married guy doing another guy’s wife with permission of the other guy and the other guy’s wife? He’s gutter scum.
            But the Gawker case is about something else, and I’m no fan of Gawker or its business model either.

          • Andrew Allison

            Because, please try and pay attention now, the subject of the post is not Hogan’s morality. As you acknowledge, the Gawker case is about something else.

          • FriendlyGoat

            I was addressing your implication that Hogan is a smart cookie for not paying (as far as we know) 33% to an ambulance chaser. I hope he has yet to lose a great deal of what he supposedly will gain. He’s not my hero.

          • Andrew Allison

            Nope, what you wrote was “A married guy doing another guy’s wife with permission of the other guy and the other guy’s wife? He’s gutter scum.”

          • FriendlyGoat

            Which is a true statement.

          • Andrew Allison

            Does that invalidate your previous comment, or are you suggesting that accepting a gutter scum offer is scumming?

          • FriendlyGoat

            You’re losing me. I’m just using the comment section to develop my own thoughts as I usually do. Either entertaining or boring you (whichever it is) was not my goal.

          • Andrew Allison

            Sorry it’s so difficult to remain on track. It would be more interesting to all of us if you would develop your thoughts before posting.

          • FriendlyGoat

            Charlie Rose recently had an author-guest who said, “I don’t know what I think until I read what I wrote”. I’m with him. The writing is the thinking. If I was replying in a critical way to someone else’s post, I’d be more careful. But in an original comment, anything goes. Why else would we be here?

          • Andrew Allison

            Charlie Rose’s guest was was exactly right. The problem is that you don’t think about what you wrote (especially it’s relevance to the discussion) before posting. Comments are not original, they are a response to an argument or part of a discussion.

          • FriendlyGoat

            My comments ARE original. Most of them are relevant. Some of them are edited or even deleted before posting. But Disqus is “dear diary” as far as I’m concerned. If you would be comforted by my prefacing with a trigger warning, perhaps I could work up the “stock disclaimer”, but, nah, probably won’t. You can always skip FriendlyGoat if you like.

          • M Snow

            Yes, most are original AND relevant, but so what if they aren’t? Is there some sort of sacred rule that comments can’t veer off into other interesting areas? If so, the rule is broken every day on every comment section I’ve ever visited. And we are all better off for it.

          • FriendlyGoat

            We regulars like and need to ramble or we’d be out fishing (or something) instead of hanging out in these comment sections. Speaking for myself, I’ll admit to possible addiction to babbling.

          • Ray Gordon

            He’s gutter scum why exactly? Because you don’t approve of his sex life?

          • FriendlyGoat

            Because he disrespected, disregarded and hurt his own wife. Because he has a male friend in collusion with that action. Because his male friend’s wife is in collusion with that action. Three people having a “hoot” and one person (who should be Hulk’s most important person) put out in the emotional cold. I think it stinks.

          • CapitalHawk

            It does stink. You are correct that he is gutter scum. So is his friend and so is his friend’s wife.

            Separately, I think the original poster is correct – revenge porn should not be protected speech and funding of third parties litigation (whether through dollar, as here, or as work without pay, as done by contingent fee lawyers) should be permitted.

          • FriendlyGoat

            I’d certainly agree that revenge porn should not be protected speech and I even lean toward believing that pictorial porn is not really “speech” at all anyway. We’d be better off as a country if we could have held ourselves down to “dirty” books and found a way to keep the video porn from just “exploding” as it has. But I realize that I am a “strange” liberal for thinking this way—-and—that the train has already left the station anyhow.

          • CapitalHawk

            I generally agree with you. I remember reading numerous first amendment cases and coming to the inescapable conclusion that the logic of the arguments put forward by the majority of the supreme court meant that child porn was protected “free speech”. But they couldn’t bring themselves to say that because of the “ick” factor. Which is a long winded way of saying, the clear and primary purpose of the free speech clause is to protect political speech, followed by ordinary speech and I don’t think that pornography was really intended to be covered at all. And now here we are where porn can be created and placed on the internet by all and sundry (with some categorical exceptions (i.e. child porn)) and if I wanted to place a political ad on a billboard, all by myself, with my money, I would need to register with the FEC and there would be limits on what I could do.

            All of which is a really long way of saying that I believe the supreme court long ago lost the plot on what the Constitution allows and doesn’t and protects and doesn’t.

  • Matt_Thullen

    One minor point–Gawker had and has the right under the First Amendment to publish the recording. The issue is whether individuals who suffer harm of some type can sue for damages for doing so. The First Amendment only guarantees that governments cannot prohibit the expression of almost all speech (with certain exceptions). Libel and defamation have always been causes of action under common law.

    The First Amendment only came into play in the New York Times. v. Sullivan case, and even that is a relatively recent case. A number of justices have had doubts about the ruling, as it has unleashed a very different and careless form of journalism. Byron White in particular wanted to rein in the ruling in that case.

    My own view is that everyone, including public figures, have the right to have accurate information published about them. If there is a First Amendment concern, then limit the damages they can collect for false information to actual damages proven, which is generally difficult to establish. Allowing public figures to sue for libel would at least force media outlets to be more careful in their reporting.

    • FriendlyGoat

      Setting aside the controversy which the Gawker tape may have caused with Hogan’s own wife, it is arguable he suffered no financial damage to his reputation as an aging tough guy. I think the finding was correct but the amount of the award a stretch of “actual damages proven”.

      • Ofer Imanuel

        If I got the timing right, he cheated on his second wife and was recorded on the published tape. Wouldn’t you say that destroying your relations with your wife is pretty serious damage?

        • FriendlyGoat

          Very serious damage, but I think he got the big award for being a big celebrity and his attorneys alleging some kind of huge (if illusory) financial damage to that.

          • M Snow

            The big award was to punish Gawker for their abhorrent behavior. Hogan deserves nothing. Another case of “I wish they could both lose.”

    • rheddles

      Actual damages proven was discarded a long time ago. We now use damages to punish the loosing, non-governmental, party for their behavior (McDonalds hot coffee). Limitation of damages would be a fundamental shift in how civil law is used. How about caps on contingency fees?

      • M Snow

        How about limiting plaintiffs to only their actual damages and directing punitive damages to Treasury? Might lessen the number of frivolous lawsuits and the grossly unjust enrichment of some trial lawyers.

        • CapitalHawk

          Amending the tax code could address this issue. No reason that the income tax for punitive damages (whether received directly or indirectly, via a contingency fee payment to an attorney) can’t be taxed at a (forgive my pun) punitive rate. Say 95%.

          • M Snow

            Works for me.

        • loupgarous

          Ultimately, the very best solution to the frivolous lawsuit issue is “loser pays both sides’ court costs and attorneys’ fees.” This is called “British rules” because until fairly recently, it was how Her Majesty’s courts worked. The current American practice of lawyers bringing worthless lawsuits and big companies settling to save on court costs would go away – when big companies found that there’s an upside to defending against bad lawsuits.

          • M Snow

            I have no objection to that but it doesn’t really solve the unjust enrichment problem that comes with “punitive damages.” If those damages are supposed to be a punishment to protect society by deterring others, then the money should go to the Treasury. The victim should only get his actual damages.

          • loupgarous

            Right now, there’s no real “downside” to big law firms bringing poorly-founded tort cases against deep-pockets defendants. It’s easier for doctos’ and hospitals’ insurance companies to settle claims which have little or no support in medical science out of court than to defend against them routinely.
            That’s made Big Law one of the largest lobbying groups against tort reform in the USA, and one of the biggest policy-making groups in the Democratic Party. John Edwards, otherwise a very unimpressive candidate, was John Kerry’s vice-presidential candidate solely on his partnership in a firm specializing in big medical tort cases, and his leadership of the Big Law campaign financing group.
            We need British rules for liability cases to make sure that the risks in pursuing cases like Hogan’s against Gawker outweigh the probable benefits – when the big law firms start losing money on these routine liability claims, they’ll only pursue the ones with a basis in reality.

          • M Snow

            I’d love to see the sort of tort reform you are suggesting but the Democratic Party will fight with its last breath to prevent that. Sad.

  • Ray Gordon

    A very small group of “free speech advocate” lawyers have monopolized the legal discussion as if they were the only ones with any right to comment on the matter, and as if their personal practice of law were not impacted by these issues. The conflicts are tremendous. Start digging through the timelines of some of these attorneys and you will see way-too-close alliances with hackers, cybergoons and other criminals, all of whom have formed a mafia whose purpose is to advocate for “free speech” knowing full well it leads to libel, advocate for Section 230 knowing full well people will sue anyway, and then laundering money through nonprofit organizations which fund the defenses of those sued by those they defame. Thiel’s funding of Hogan is a threat to this mafia, and to the laws on which it relies. Maybe the reader here thinks it’s normal for a “well known attorney” (I won’t name them here) to be close friends with someone who incites death threats against others, using hate speech to do it, but that doesn’t legitimize the conduct; rather, it merely invalidates the credibility of the osteinsibly “objective” observer.

    • CapitalHawk

      You lost me.

  • seattleoutcast

    I see many on the left clutch their pearls at the notion of their free speech being violated. Yet these very same people see no problem squelching other parts of that very same amendment, specifically, the free exercise of religion.

    • FriendlyGoat

      Some of us on the left are not appalled at the takedown of something useless like Gawker, and would welcome you exercising your religion in any way you like (so long as that exercise does not infringe the rights of other people to not be bothered by it).

      • Jim__L

        There is no right not to be bothered (offended) by someone else’s free speech.

        At least, that’s what Christians have been told for the last several decades.

        • FriendlyGoat

          In most cases we can ignore each others’ free speech if we choose to—-and most of us choose to daily. If George Will writes another of his columns I seldom agree with, I probably won’t read him anyway and may not even know he wrote yet another one. If the wildest leftist in the USA (whoever that is) writes one, you may manage to let it pass you by as well.
          But, seattleoutcast had not directly raised free speech when I responded to him. He was speaking of exercise of religion. Whatever his religion, if he reads, learns, prays, believes, assembles, worships and writes in almost any conceivable fashion, if does not infringe other people. If he were to try to control what other people can and cannot do based on his religion, that would be a different matter, and that would be “bothering them with it”.

    • CapitalHawk

      What about Freedom of Association (and, as important, Freedom to NOT Associate)? It doesn’t exist and hasn’t for at least 50 years.

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