Hulk Hogan's Gawker Smackdown Hurts Press Freedom

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Peter Thiel's funding of speech-chilling privacy litigation is totally misguided, people.

August 24, 2016

Nine years ago, Gawker ran a blog post headlined "Peter Thiel Is Totally Gay, People." The item rankled Thiel, a billionaire who had co-founded Paypal and invested early in Facebook but had not yet gotten around to publicly acknowledging his sexual orientation, although he had told people close to him.



This week Thiel finally got his revenge as Gawker ceased operations, driven out of business by an invasion-of-privacy lawsuit he financed. Whether or not you mourn the loss of Gawker, a website known for its snarky blend of gossip and journalism, its death does not bode well for freedom of the press.

The lawsuit that Thiel supported involved the professional wrestler Hulk Hogan, a.k.a. Terry Bollea, who claimed to have been mortified by a 2006 video showing him having sex with the wife of his best friend at the time, Tampa shock jock Bubba the Love Sponge Clem. Clem, who arranged the liaison, recorded it without Bollea's knowledge, and in 2012 someone sent the 30-minute video to Gawker, which posted a 100-second excerpt along with a 1,400-word description.

Given Bollea's eagerness to discuss his sexual exploits, including the incident shown in the video, on talk shows and in print, his claim of life-impairing trauma seemed rather implausible. Last March a Florida jury nevertheless awarded him $115 million in compensation for the emotional distress and economic harm the video supposedly inflicted, later tacking on $25 million in punitive damages.

That absurdly disproportionate award, which was even more than Bollea had sought, was a measure of the jurors' disgust rather than any injury he suffered, and it probably will be reduced on appeal. But it already has driven Gawker Media into bankruptcy, leading to its purchase by Univision, which decided to shut down Gawker while keeping the company's other outlets alive.

In a recent New York Times op-ed piece defending his involvement in the Hulk Hogan case, Thiel argues that the threat of ruinous litigation is necessary to protect privacy from media outlets that thrive by violating it. "Gawker violated my privacy and cashed in on it," he writes. "A story that violates privacy and serves no public interest should never be published."

The public clearly was interested in the Hulk Hogan sex tape, which generated more than 7 million page views. Whether the public should have been interested is a different question, and Thiel thinks his answer should be legally enforceable.

Gawker argued that the video, which had been described by other outlets and discussed by Bollea himself, was already a news story, and the first few paragraphs of the accompanying post tried to place it in cultural context, giving the appearance of a purpose other than titillation. The 2007 post about Thiel's sexuality likewise aspired to a serious purpose: questioning the "wrongheaded sense of caution" on this subject among venture capitalists.

I'm not sure I buy these rationales, but I am sure they should be judged by readers, not by courts. Empowering jurors to define the public interest and decide which stories serve it is bound to have a chilling effect even on journalism that Thiel would consider legitimate, because people commonly disagree about such matters.

"Since sensitive information can sometimes be publicly relevant, exercising judgment is always part of the journalist's profession," Thiel says. "It's not for me to draw the line, but journalists should condemn those who willfully cross it."

Notwithstanding his avowed reticence, Thiel is drawing a line by supporting Bollea's lawsuit and offering to help other litigants who believe journalists have violated their privacy. His choice of cases will tell journalists where he thinks the line should be, and they will cross it at their peril.

People who do not like what journalists say about them already can sue for defamation, and they need not win to punish their adversaries for making them uncomfortable. Thiel's amorphous, free-floating right to privacy provides another excuse to exact revenge, with the advantage that truth is no defense.

© Copyright 2016 by Creators Syndicate Inc.

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  • Alsø alsø wik

    "Gawker argued that the video...was already a news story, and the first few paragraphs of the accompanying post tried to place it in cultural context, giving the appearance of a purpose other than titillation."

    You, Jacob Sullum, no doubt admit to showering every morning. And I'm sure all of your female relatives do too. So were Gawker to secretly record those showers without your consent and post them online you're cool with it? After all, you'd have no defamation claim since the videos simply captured something that in fact happened. Who are you to judge what's newsworthy?

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  • Spinach Chin|8.24.16 @ 1:08AM|#

    "I am sure they should be judged by readers, not by courts."

    What's more, he's even given us a reason that such videos are, by definition, in the public interest.

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  • Scarecrow & WoodChipper Repair|8.24.16 @ 1:14AM|#

    Death to gawker! All hail the demise of gawker!

    Principles, we don't need no steenking principles!

    Death to those we don't like! Glory to those who match our political correctness!

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  • Scarecrow & WoodChipper Repair|8.24.16 @ 1:21AM|#

    Just as the evil of child porn is in the making, not the viewing, so the evil with this video is the maker, not the publisher (or the viewers). Hulk Hogan let his friend set up sex with the friend's wife and secretly recorded it. As far as morality plays, that's pretty pathetic right there on all sides.

    Or to put it another way, if viewing child pron gets a longer prison sentence than raping kids to make the porn, why aren't the millions of viewers in deeper shit than gawker?

    Those who applaud the judgement because they hate gawker and have no principles are weak-minded statists, glad to have the State thump someone they don't like while the real criminal, if it really was a crime, goes free.

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  • Alsø alsø wik|8.24.16 @ 2:30AM|#

    Why are you grouping the publishers in with the viewers instead of the producers? In this case Bubba is just as deserving of bankruptcy as Gawker. Hogan and Thiel maybe didn't target him because he wasn't worth the expense. But the child pron publisher (assuming they knew what they were doing) is just as evil as the producer. Gawker was not, in your analogy, the "viewer".

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