I joined guest host Matt Welch and journalist Michael Tracey (Vice) for a discussion of Gawker litigation on Sirius XM Insight’s “Tell Me Everything” show, with Matt subbing for host John Fugelsang. You can listen here. A little earlier, I joined morning host Ray Dunaway on Hartford’s WTIC to talk about some Overlawyered posts.
What Ken says at Popehat:
…for most of us the scary part of the story is that our legal system is generally receptive to people abusing it to suppress speech. Money helps do that, but it’s not necessary to do it. A hand-to-mouth lunatic with a dishonest contingency lawyer can ruin you and suppress your speech nearly as easily as a billionaire. Will you prevail against a malicious and frivolous defamation suit? Perhaps sooner if you’re lucky enough to be in a state with a good anti-SLAPP statute. Or perhaps years later. Will you be one of the lucky handful who get pro bono help? Or will you be like almost everyone else, who has to spend tens or hundreds of thousands of dollars to protect your right to speak, or else abandon your right to speak because you can’t afford to defend it?
The system isn’t just broken for affluent publications targeted by billionaires. It’s broken for everyone, and almost everyone else’s speech is at much greater risk.
Our coverage of the publication, including its run-in with champerty and maintenance and Peter Thiel’s version of “public interest” litigation, is here.
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.
[Wrestler Hulk Hogan’s lawsuit against Gawker Media over its publication of a sex tape resulted in a Florida jury’s award of $140 million against the widely loathed journalistic entity. There had been rumors that someone staked Hogan the money to sue. Now, Ryan Mac and Matt Drange in Forbes write that anonymous sources have told them the hidden funder was Silicon Valley libertarian Peter Thiel. The article does not make clear whether, if the reports are true, Thiel stands to gain a share of the suit’s proceeds, or was acting from dislike of Gawker.]
At common law, funding another’s lawsuit was “champerty” if done for a share of the proceeds and “maintenance” if done for the hell of it. Both were unlawful at common law (as was “barratry,” the stirring up of litigation whether or not resources were advanced for its prosecution) but as I discussed in The Litigation Explosion (1991), the old common law rules have fallen into general disuse. What rules still remain vary from state to state, often taking the form of rules specifically governing what lawyers and their associates can do (which will often leave non-lawyers free to carry on the same acts.)
Champerty and maintenance rules both came under attack from legal academics and influential commentators during the general rise of pro-litigation sentiment in the decades after 1950, and were dismissed as outdated and ethically wrongheaded. The path was different in each case, however. In the case of champerty, the rise to acceptance of the lawyer’s contingency fee, as a wholesome prescription for the general case rather than a necessary evil in special kinds of cases, tended to erode disapproval of champerty: if there was nothing at all wrong with lawyers taking a share in claims, why not invite others to do so too? As an internet search on the phrase “litigation finance” will quickly show — or a glance at a tag on the subject at Overlawyered — third-party financing of lawsuits has become a booming and largely unregulated business in the United States and a few other nations, even as champerty remains unlawful in many other countries. The U.S. Chamber of Commerce, believing that litigation finance is likely to fuel the volume of lawsuits, has fought for restrictions on the practice.
Maintenance, on the other hand, metamorphosed around the 1960s into what we now know as the public interest litigation model: foundation or wealthy individual A pays B to sue C. Since litigation during this period was being re-conceived as something socially productive and beneficial, what could be more philanthropic and public-spirited than to pay for there to be more of it? So what had been stigmatized or even illegal not long before soon emerged as the most admired kind of legal practice.
Once the old ethical qualms about champerty and maintenance fall, it seems unlikely that they will be revived only as to some causes or persons. Funding someone else’s lawsuit for ideological reasons, long perceived as a dangerous stirring up of social conflict that might otherwise have remained at rest, is now applauded as a means of holding powerful institutions accountable, ensuring wronged parties their day in court, and so forth. Inevitably, once all parties grow comfortable with this tool, it will be used not just against the originally contemplated targets, such as large business or government defendants, but against a wide range of others — journalistic defendants included.
Gawker Media published a sex tape it had obtained of a famous wrestler, then refused to take it down when a judge ordered it to do so. Now a Florida jury has hit it with a $115 million verdict. [Ars Technica] While at some point a civil litigant was bound to catch up with the notoriously scurrilous media outfit, the question now is whether other, better media outfits need to worry too. On appeal, the defendant will press its contention that the contents of the tape were newsworthy, a category that allows broader use of material that otherwise would invade privacy.
Comparisons are already off and running between this and the $55 million Erin Andrews invasion of privacy verdict against defendants including Marriott. In comparing the two, however, it should be borne in mind that the Gawker case was one of willful misconduct, while the Andrews case charged the hotel with negligent conduct that inadvertently allowed another party to commit a crime against her privacy.
P.S. A reminder of Gawker’s deep, abiding interest in free speech (“Arrest climate change deniers“) Plus, careers for the 21st century: sex tape broker (with careful attention to the legalities so as to dodge California law’s definition of extortion).
The anti-game attorney cites reader comments on the Gawker site Kotaku that he considers personally threatening. (GamePolitics.com, Apr. 25; Kotaku, Apr. 23; earlier Kotaku post). Mark Methinitis at Law of the Game says that in his view the complaint “falls well beyond the norm of complaint drafting and more into the realm of a self-promoting tirade” (Apr. 25).
- Florida “health coach” charges for nutrition advice, isn’t a licensed dietitian. Does she have a First Amendment defense? [Scott Shackford]
- Results of Russian social-media manipulation episode could include foot in door for regulation of Internet speech [John Samples, Cato]
- Some in Australia having trouble distinguishing “impersonation” of government from anti-government satire [Timothy Geigner, TechDirt]
- Before deep-pocket publications can report on sexual misconduct by persons in high places, gauntlet of legal review needs to be run with special attention to on-the-record sources [Mike Masnick, TechDirt]
- Ohio lawmaker introduces anti-SLAPP bill that pioneers novel protections for anonymous speakers [John Samples, Cato]
- “Nadine Strossen’s Next Book — ‘Hate: Why We Should Resist it With Free Speech, Not Censorship'” [Ronald K.L. Collins] “Sanford Ungar Heads New Free Speech Project at Georgetown University” [same]
- “You Can’t Sue People for Being Mean to You, Bob” – ACLU brief in Robert Murray-John Oliver case. Or can he? [Lowering the Bar, Popehat]
- Eugene Volokh will keynote lunch and colleague Emily Ekins will describe results of a new survey on free speech at Cato’s inaugural conference on “The Future of the First Amendment,” that’s aside from my religious liberty panel [register or watch online]
- “Build the Wall” flyers in Washington, D.C. draw reaction: “Council member Brandon Todd has told residents to call 911 if they are handed one of the flyers.” [Liberty Unyielding]
- Is legal fate of Gawker chilling journalism about the rich and famous? [Margaret Sullivan, Washington Post, on coverage of R. Kelly story] Did ABC News really pay $177 million even after insurance reimbursement to settle pink slime case? [Jacob Gershman on Twitter citing SEC filing]
- Symposium with Richard Epstein, Heather Mac Donald, KC Johnson, John McWhorter, Jonathan Rauch, Adam White and many others: “Is Free Speech Under Threat in the United States?” [Commentary]
- Calls for a crackdown on bad guys’ political expression in 1950s and today, compared [Eugene Volokh]
TechDirt, which has provided immensely valuable coverage of First Amendment issues as well as news from the worlds of technology and intellectual property, is being sued for defamation over its critical coverage of a man best known for his claims to a role in the invention of email. Lending urgency in some observers’ eyes is that the plaintiff is being represented by attorney Charles Harder, of Thiel-Hogan fame. Mike Masnick’s statement is here. More: Eugene Volokh, David Post.
- R.I.P at 91 Nat Hentoff, magnificent cultural figure, champion of free speech and civil liberties [Tim Lynch; Cato biography page with links to commentaries; related YouTube playlist; his last Village Voice column; trailer on documentary; large archive at Unz.org including work for Inquiry; remembered by free speech expert Ronald K.L. Collins, with many links]
- “Self-Proclaimed Inventor of Email Files Defamation Lawsuit Against Techdirt’s Mike Masnick” [THR, Esq./Hollywood Reporter; “the latest case from attorney Charles Harder, who previously represented Hulk Hogan against Gawker”]
- In the mail: Paul Cliteur and Tom Herrenberg, eds., The Fall and Rise of Blasphemy Law [Leiden University Press]
- On porn, some GOP lawmakers favor wacky litigation theories; others, a nanny state approach [Elizabeth Nolan Brown (Utah proposal), A. Barton Hinkle (Virginia)]
- The most damaging way for Trump to attack the press could be the one Obama has already laid out, namely pursuit of leaks and leakers [Peter Sterne/Politico, Mike Masnick/TechDirt] Mark Feb. 3 on calendar for Cato panel on free speech under Trump with Flemming Rose, Frank Buckley, Robert Corn-Revere; earlier Cato panel with Rose and Nick Gillespie on free speech in age of Trump now online; related on Trump’s antagonism toward critics from Jacob Sullum, Eugene Volokh;
- If Euro-style hate speech law ever sneaks into U.S., enactments like Louisiana’s Blue Lives Matter law may show the way [Scott Shackford, Reason; earlier]