When news broke that technology entrepreneur Peter Thiel had been surreptitiously financing Hulk Hogan’s successful invasion-of-privacy lawsuit against Gawker Media, I argued that much of the resulting outcry among media-types (who proclaimed that the suit heralded the subordination of the free press to a new class of billionaire oligarchs) was wildly overblown. 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. And Thiel had lawfully contributed to Hogan’s legal fees, as individuals and groups often do—yes, sometimes anonymously—for causes they support. An excerpt:
It’s… 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.
Now that Gawker has filed for bankruptcy, in part due to the $140 million judgment that it must pay to Hogan, the Gawker debacle is being litigated in the press once again. Perhaps the most compelling articulation of the opposing view is offered by Ken White (a lawyer and free speech expert who blogs and tweets as Popehat). White argues that while Gawker’s behavior has often been contemptible—invading peoples’ private lives, participating in blackmail, shaming private figures and destroying their lives for minor transgressions—that should not cloud our judgment with respect to the free speech principles at play, which suggest that the ruling should indeed be a cause for skepticism and concern:
When a jury verdict bankrupts a media company for what it has published, we ought to examine meticulously whether the company received due process, whether the court applied the correct 1st Amendment principles, whether the verdict was based on mere antipathy rather than law and fact, and whether the damages are proportionate to the alleged wrongdoing. The 1st Amendment does not allow courts to craft new ad hoc exceptions to free-speech principles when speech is sufficiently upsetting. Rather, courts must carefully determine whether particular speech falls into well-defined exceptions to the 1st Amendment, such as obscenity or fraud.
White’s vague sense of unease about the ruling is understandable. It’s hard to disagree with any of his specific assertions, as he doesn’t contend that the verdict was wrong, or that the law should have barred Thiel from donating to Hogan’s legal efforts. I certainly believe matters of free press shouldn’t be taken lightly, and that the rule of law depends on impartial justice for everyone based on the facts of each case, regardless of how deplorable their behavior or beliefs might otherwise have been.
That said, I stand by the broadly “anti-Gawker” position I articulated several weeks ago. Any defense of the company must answer two fundamental questions before proceeding. First: Should revenge porn—that is, the publication of sexually explicit images of a person without their consent—be protected speech under the First Amendment? And second: Should third-party individuals or organizations be allowed to subsidize legal fees for a cause they sympathize with? I believe the answer to the first question is and must be no, and that the answer to the second is and must be yes.
The first question barely requires further discussion. Arguments for extending constitutional protection to revenge porn are few and far between. One can argue, as Gawker did at trial, that Hogan’s sex tape was a matter of public concern, and therefore an exception to the generally applicable rule that the non-consensual publication of someone’s sex tape constitutes an invasion of privacy. There is no room to discuss the ins and outs of that question here, but suffice it to say that it’s hard to see how excluding such material from First Amendment protection, in and of itself, could threaten the freedom of the press, and to my knowledge no American court has ever ruled that it does.
On to the second question, which has been the source of most of the consternation: Should a person like Thiel be allowed to fund someone else’s litigation effort—and, more controversially, should he be allowed to remain anonymous? It seems clear that third-party litigation funding has become an essential part of our civil society. Like it or not, many of our biggest social questions are now settled in the courts. That means that gay rights groups, gun rights groups, environmentalist groups, and many others spend many of their funds supporting legal campaigns to advance their interests. (You can be sure that many of the individual gay couples around the country who challenged same-sex marriage bans did not pay their own legal fees). Many social activist philanthropies guard the identities of their donors.
Should this kind of third-party litigation funding be reined in—perhaps by forcing legal advocacy organizations like the ACLU to disclose identities of contributors, or disallowing outside groups from contributing more than a certain amount to a given legal case, or by making it easier for parties in lawsuits to force their opponents to reveal their funding sources? Maybe, but it’s important to carefully think through the implications of such measures. Donating to a cause one supports is itself a political statement and an exercise of protected speech. Putting caps on such donations could well run afoul of the First Amendment. So could (to a lesser extent) strict disclosure rules—there is Supreme Court precedent from the civil rights era holding that the state could not force the NAACP to make the names of its supporters public. That said, I’m not ipso facto opposed to more transparency—but it’s not clear that it would make much of a difference in a case like Hogan’s. Thiel’s activities are now public, and it remains to be seen whether that will make the other lawsuits against Gawker he has financed any less effective.
But all of this discussion is mostly academic, because most of Gawker’s liberal defenders are probably not all that interested in genuinely cracking down on philanthropic legal advocacy. Such a measure would threaten to undermine a number of progressive legal achievements, from LGBT rights to abortion rights to environmental protection. White is understandably concerned that Gawker’s conservative critics are making an exception to their typically strong free speech positions because they (rightly) hate Gawker. If that is true, it’s also the case that Gawker’s left-wing defenders are making an exception for their normally broad view of the role of public interest litigation in achieving social change simply because they hate Peter Thiel. Needless to say, both of these approaches would be wrong: We should be approaching public policy questions with an eye to what is the best for society at large, irrespective of our feelings about the particular combatants in what is a particularly bizarre legal skirmish.