Last week’s Gawker Media bankruptcy inspired online triumph. “What a beautiful day,” tweeted Hulk Hogan, whose $140-million invasion-of-privacy verdict — underwritten by hostile Silicon Valley billionaire Peter Thiel — doomed Nick Denton’s snarky online empire. Most were less subtle. “Goodbye and good riddance to Gawker,” the New York Post sneered.
It’s tempting to side with the gloaters; I’m as disgusted by Gawker as the next guy, and I’m not above feeling a frisson of glee when bad people face consequences for their actions. But schadenfreude isn’t a 1st Amendment value. From a legal and constitutional perspective, even Gawker haters should be troubled by its fate.
Observers were, then, rather skeptical that Gawker had principled journalistic reasons to publish Hulk Hogan’s sex tape. And the trial, far from rehabilitating Gawker’s reputation for professionalism or decency, soiled it further by dredging up unseemly episodes from the site’s past. “Blah, blah, blah,” a Gawker editor wrote in passing along a complaint from a young woman who was the subject of a stolen video, eagerly published for clicks, that may have depicted her rape.
So, yes, Gawker got what was coming in a karmic sense. Nevertheless, 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.
We don’t need the 1st Amendment to defend popular speech, we need it to protect unpopular speech.
Nor should we take for granted that the judge and jury decided the case wisely, because most of our cherished free-speech rights have been recognized by appellate courts after judges and juries erred. The right for high school students to wear black armbands to protest the Vietnam War, the right to burn a flag, the right for Hustler magazine to satirize Jerry Falwell, the right for the New York Times to publish the Pentagon Papers without prior restraint, the requirement that public officials prove that journalists engaged in actual malice before winning a defamation case – all of these important rights arose from Supreme Court decisions correcting the mistakes of trial courts and juries.
In short, we shouldn’t just assume that crushing bad people is just or defensible. We don’t need the 1st Amendment to defend popular speech, we need it to protect unpopular speech; our civic obligations are at their peak precisely when loathsome people are on the line.
Devotion to the 1st Amendment should also provoke grave concerns about Thiel’s open-checkbook funding of Hogan’s lawsuit against Gawker. What Thiel did wasn’t illegal; he has free-speech rights too. The problem is that Thiel found a way to weaponize the brokenness of our legal system.
Though Thiel crushed Gawker through victory, he might well have crushed it in defeat. Defending a civil suit, whatever its merits, is often a years-long pitched battle. Eventual vindication rarely comes with reimbursement of fees and costs, let alone compensation for the disruption and stress. Most victories are Pyrrhic. Few factors deter vengeance by litigation; one is that litigation is impossibly expensive, even for plaintiffs. A billionaire’s support eliminates that barrier and allows angry people to silence speakers they hate.
That doesn’t mean we should stop the rich from funding causes they care about. It means that the cause of free speech requires us constantly to reevaluate our legal system and demand that the process of litigation itself cannot prove ruinous. Again, that’s true even when hated gossip-mongers are at the receiving end of that litigation. We owe this vigilance to ourselves — as the potential next targets — and to our free-speech heritage.
Ken White is a criminal defense attorney and civil litigator at Brown White & Osborn LLP in Los Angeles.
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