Faced with a $140 million verdict from a Florida jury over its publication of a sex tape including wrestler Hulk Hogan, Gawker Media has filed for Chapter 11 bankruptcy [CNN Money] Forbes profiles a boutique law firm that with Thiel’s help has made suing Gawker its “bread and butter.” Nick Lemann notes that the “uniquely legally privileged position of the American press” dates back to the period of New York Times v. Sullivan and some other pro-press decisions, and may be up for rethinking in public opinion “at a moment when the press is far more vulnerable, economically and culturally, than it used to be.” [New Yorker] My recent posts on Gawker, Peter Thiel, and paying others to sue are here, here, and here.
There has been much coverage of the revelation that Peter Thiel has funded Hulk Hogan’s lawsuit against Gawker behind the scenes, especially following the Silicon Valley figure’s acknowledgment that he views taking down the notoriously scurrilous publisher as a public service (“one of my greater philanthropic things that I’ve done”) and has sought out and funded other litigants besides Hogan in order to make that happen. As I said in my explainer the other day, the decay of age-old rules against outsider funding of litigation (“champerty and maintenance”) is a broader trend that has left many sectors of society more exposed to the dangers of litigation, with the press just the latest.
I’m quoted by Alison Frankel in her Reuters column on this (“Our ancestors were not complete fools,” I say) and by Timothy Lee at Vox (“‘Some people following the Thiel story appear to be surprised that these weapons can be used by rich and powerful people in order to get their way,’ Olson tells me.”; also see Ezra Klein’s piece). And Lee recounts a recent episode that passed with little notice at the time:
Last year, the liberal magazine Mother Jones defeated a defamation lawsuit filed by Republican donor Frank VanderSloot. Winning the lawsuit cost Mother Jones, a relatively small nonprofit organization, and its insurance company $2.5 million in legal fees.
If VanderSloot’s goal was to punish Mother Jones for writing an accurate but unflattering story about him, a loss was almost as good as a victory. His lawsuit sought $74,999 (staying just under the $75,000 threshold that would have allowed Mother Jones to move the case to federal court and away from an Idaho jury that might have favored the hometown plaintiff). So “winning” the lawsuit cost Mother Jones 30 times as much as the amount it would have had to pay if it had lost.
What was really ominous was what happened after VanderSloot’s loss. He “announced that he was setting up a $1 million fund to pay the legal expenses of people wanting to sue Mother Jones or other members of the ‘liberal press.'”
Of journalists raising the alarm about the Thiel episode, Josh Marshall notes that unlike the usual pattern of litigation by wealthy persons against the press, in which the plaintiff must undertake some risk of reciprocal damage through discovery and bad headlines, the Thiel model allows the one in the background with the grudge to inflict hurt at little risk except financial to himself. “If Thiel’s strategy works against Gawker, it could be used by any billionaire against any media organization,” argues Felix Salmon.
Meanwhile, some other writers echo the point I made about how, once funding other people’s lawsuits for ideological reasons came to be applauded as public interest law, it was unlikely that the weapon would not be used against the full range of targets including the press. Tyler Cowen tries putting the shoe on the environmentalist foot, while Eugene Kontorovich at the Volokh Conspiracy observes that “Thiel’s conduct fits into the ‘public interest’ or ‘ideological’ litigation paradigm” and claims that “By current standards, Thiel’s funding should raise no eyebrows — unless one also wants to revisit public interest litigation, class actions and contingent fees.”
You know what? Maybe it’s time we did revisit those things, including the ideological litigation paradigm. And Andrew Grossman has a tweetstorm and exchange with Kontorovich that comes closer to capturing my own mix of feelings on the subject.
Historians are disturbed over a “royalties claim being brought by the heirs of Joseph Goebbels, Hitler’s minister of propaganda, against the publisher Random House Germany.” A book being published this month quotes from Goebbels’s diaries, and scholars are worried of precedent being set which would not only entitle heirs to profit from war criminals’ writings, but also give them approval authority over the usage of excerpts, which could lead to permission being traded for more sympathetic treatment. Goebbels committed suicide during the last days of the Nazi regime. [Matthew Reisz, Inside Higher Ed] “Maybe history needs a Son of Sam Law” [@KenSherrill on Twitter]
After charging hard into a market that had been almost entirely dominated by Amazon, Apple found itself facing antitrust charges filed by the U.S. Department of Justice and 33 state attorneys general, culminating in a bench-trial courtroom loss in 2013, now on appeal. I missed it at the time, but a couple of months back Roger Parloff had a write-up at Fortune on why the key Apple executive at the center of the case “says he’d ‘do it again’ – but ‘take better notes.'”
If you defend freedom of speech today, realize that “blasphemy” is its front line, in Paris and the world. …
Most of the prestige Western press dodged the running of the [Danish Mohammed] cartoons, and beneath the talk of sensitivity was often simple fear. As journalist Josh Barro noted today on Twitter, “Islamists have by and large succeeded in intimidating western media out of publishing images of Muhammad.” …
[On the modern European rise of laws against “defamation of religion” and related offenses]: One way we can honor Charb, Cabu, Wolinski, Tignous, and the others who were killed Wednesday is by lifting legal constraints on what their successors tomorrow can draw and write.
Also recommended, this thoughtful Ross Douthat column on blasphemy and religious offense. Douthat is not enthusiastic about blasphemy generally, but makes an exception for instances where it is done in defiance of grave dangers. “If a large enough group of someones is willing to kill you for saying something, then it’s something that almost certainly needs to be said … it’s precisely the violence that justifies the inflammatory content. … if publishing something might get you slaughtered and you publish it anyway, by definition you *are* striking a blow for freedom, and that’s precisely the context when you need your fellow citizens to set aside their squeamishness and rise to your defense.”
“So many of Charb’s fellow journalists have long been aware of these threats, and have said nothing,” writes Mark Hemingway in the Weekly Standard. Jytte Klausen, author of a book on the Danish cartoon episode, in Time: “Over the past five years, [the editors of Charlie-Hebdo] have been left alone standing in defense of press freedom.” And Alex Massie at The Spectator:
[The 1989 fatwa against Salman Rushdie] was a test too many people failed back then. We have learned a lot since then but in many ways we have also learned nothing at all.
In 2012, Rushdie wondered if any publisher would have the courage to endorse The Satanic Verses if it were written then. To ask the question was to sense the depressing answer. They would not.
As for the present day, CNN, NYT, AP, NBC, ABC, the BBC, Guardian, Telegraph, and the CBC, will *not* be running Charlie-Hebdo cartoons, though a number of American publications did so, including Daily Beast, Vox, and Bloomberg. No UK paper on Thursday morning runs the cartoons on its cover — though the Berliner-Zeitung in Germany publishes a full spread of them.
23 cartoonists respond [BuzzFeed]. Claire Berlinski’s firsthand account of the attack scene, and Charb’s now-famous “die standing” vow. Andrew Stuttaford at Secular Right on whether anything will now change in Europe’s slow constriction of free speech: he fears not (& Hans Bader, CEI).
…yet deplore the Citizens United decision, you might have a consistency problem [A. Barton Hinkle, syndicated]
Among its other duties, the Federal Election Commission hands out — under conditions that may involve some discretion — hall passes giving permission for political candidates to publish books without legal hassle. [Providence Journal editorial] Last fall, in a (highly recommended) Yale Law Journal piece, Stanford law professor and former appeals judge Michael McConnell proposed that the Supreme Court’s much-demonized Citizens United decision would have rested on firmer ground had the Court characterized it as a free press rather than a free speech ruling; the case arose from a complaint against the makers of a documentary critical of Hillary Clinton.
Alexander Cohen on the e-books/Amazon antitrust settlement [Atlas Society]
French researcher Gilles-Eric Seralini is not taking particularly gracefully the withdrawal of “a controversial and much-criticized study suggesting genetically modified corn caused tumors in rats” [Reuters]:
“Were FCT [Reed Elsevier’s journal Food and Chemical Toxicology] to persist in its decision to retract our study, CRIIGEN would attack with lawyers, including in the United States, to require financial compensation for the huge damage to our group,” he said in a statement.
CRIIGEN is short for the group with which Seralini has worked, the Committee for Research and Independent Information on Genetic Engineering.
- Trademark infringement claims as way to silence critics: Jenzabar gets comeuppance in form of court award of more than $500,000 in attorney costs [Paul Alan Levy, earlier and more]
- Court holds Google Books project to be fair use [Matthew Sag]
- Questioning the ITC’s patent jurisdiction: “Why should we have a trade agency litigating patent disputes?” [K. William Watson, Cato, more, yet more, related]
- Courts come down hard on copyright troll Prenda Law [Popehat]
- Annals of patent trollery: New York Times et al rout Helferich [EFF, Liquid Litigation BLLawg] Monolithic Power Systems v. 02 Micros [IP for the Little Guy] Resistance by Newegg, RackSpace, Hyundai, etc. [WLF]
- Re: copyright terms, US government shouldn’t endorse view that longer always means better [Simon Lester, Cato]
- Legal tiff over use of hotel carpet patterns in costumes [Io9]