Peter Thiel

Gawker Was Killed for Publishing Embarrassing Truths. That's Bad News.

Giving juries the power to destroy a journalism enterprise for being offensive is bad for free expression.

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The old-fashioned belief that free expression is the best way to buttress political freedom, further the quest for truth, and sharpen civic and personal mental acuity is being increasingly abandoned, from thought-leader popular magazines to prominent daily newspaper beat reporters.

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Such speech skeptics believe—and they are not wrong!—that free expression can harm either specific people or the culture at large, and thus deserves to be squashed in some circumstances. That idea animates a fascinating though infuriating new book that tells the story of a publication forced to recant, then be utterly financially ruined, for publishing something true: Conspiracy: Peter Thiel, Hulk Hogan, and the Anatomy of Intrigue (Portfolio Penguin) by marketing guru Ryan Holiday.

This is not a First Amendment story, but it is a story about the power of U.S. government to suppress speech via its tort system. The web publication Gawker was destroyed via lawsuit for invasion of privacy and infliction of emotional distress on wrestler Hulk Hogan (real name Terry Bollea). Gawker published something true—a 1:41 portion of a video of Hogan having sex with his best friend's wife (at said friend's invitation) that Hogan did not know was being shot—and he sued over it.

A Florida court in March 2016 granted Hogan $141 million in compensatory and punitive damages against the publication, its publisher, and one of its writers. (While Gawker could not afford to appeal because a quirk of Florida law requires putting up a bond for the full award pending appeal, the parties eventually settled for smaller amounts that still annihilated Gawker.)

A detail not made public until after Hogan's paralyzing bodyslam to Gawker: Hogan's suit was financed by controversial tech billionaire Peter Thiel. He had his reasons, as Holiday explains via long exclusive interviews with the often press-shy Thiel; mostly, he was mad Gawker outed him as gay in 2007. Thiel was, Holiday concluded from his interviews, consumed with "anger at the unfairness of it…the needless impoliteness of it." Thiel was, says Holiday, a man who "venerated privacy" and considered Gawker literal terrorists for regularly publishing facts about famous (and sometimes not famous) people that those people were embarrassed by.

Was Thiel's righteous anger sincere? It seems unlikely, given that Palantir, a company Thiel founded, happily sells its data-mining services to help the government deport people; or to harass short-term apartment renters; or help cities do "predictive policing."

Holiday's central polemical point doesn't rely on Thiel's sincerity; it is merely that Gawker's publishing the video shamed and hurt Hogan. "No civil society would allow something like this to go unpunished," Holiday concludes.

Was Hogan harmed? Most humans with a hint of empathy would agree he was. Does that settle it? No. Many harms we permit to go legally unpunished. Going into competition with someone's business can harm them. Choosing to start, or leave, a romantic partnership can harm both prospective partners and third parties. Doing something with your own property that violates expectations built around them, even as simple as enjoying it aesthetically, can harm. Deciding to go to the same beach as someone else can harm their enjoyment of that beach. As foes of "political correctness" (which Thiel considers himself) recognize, speaking certain truths or sincerely held opinions related to gender roles or politics, can, in the perception of those who hear them, harm. But a post-Enlightenment westerner should not be quick to think the harm of "violating privacy" should equal "sued out of existence."

It's conceptually untenable to claim a fact (even a fact like "what it looked like while you had sex with a friend's wife") belongs to you because it is about you. Once it is knowledge in someone's mind, or a video in someone else's possession, enforcing such a "right" involves controlling what other people do with their mind, or their property.

A famous 1890 Harvard Law Review article "The Right to Privacy," by future Supreme Court justice Louis Brandeis and Samuel D. Warren, launched serious consideration of privacy as worthy of legal protection. The authors rejected the libertarian premise that my right to free speech trumps your right to not be spoken of. Their influential article seems designed to be entered as evidence in the Hogan/Gawker trial, with its complaints that "The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade…To satisfy a prurient taste the details of sexual relations are spread." Brandeis and Warren thought it could be fine to shut up or punish the press to defend "the more general right of the individual to be let alone."

Using force of law, criminal or tort, to punish expression (always a core element of Western liberty) means the law is not respecting the speaker or publisher's "right…to be let alone." Brandeis and Warren do recognize the distinction between punishment for expressing truly private facts and those of "general or public interest." Brandeis and Warren's instincts match an average Americans' more than they do the average free speech absolutist, but that's why restrictions on expression were supposed to be taken off the table of democracy via the Bill of Rights. (To argue in the alternative like a good lawyer, even if you do believe that the emotional harm of exposing a private fact deserves legal punishment, perhaps some sense of proportionality should be involved such that driving a thriving journalism enterprise out of business should not be the result.)

Even Brandeis, in his 1927 Supreme Court Whitney v. California concurrence, recognized that our Founding Fathers "valued liberty both as an end, and as a means…Fear of serious injury cannot alone justify suppression of free speech….To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one."

Brandeis was able to square his belief in punishing "privacy-violating" speech with that bold paean to the glories and necessities of free speech by believing in a sharp, meaningful line between utterances of public and political relevance and sheer privacy-violating trash. But, as Holiday himself relates, the destruction of Gawker shut up not just pure prurient delight in Hogan's private sexual acts but also lots of journalism of more obvious public importance, including exposing cults, corrupt politicians, and abusive celebrities, stories Holiday admits "the rest of the media would come to seem embarrassingly late on reporting."

The Supreme Court granted in the 2001 decision Bartnicki v. Vopper that a radio commentator should not be legally punished for broadcasting the contents of an illegally intercepted phone conversation (which involved labor unions and a teachers strike and was seen as unambiguously in the public interest). In his opinion, Justice John Paul Stevens admitted that "As a general matter, state action to punish the publication of truthful information seldom can satisfy constitutional standards" and noted "this Court's repeated refusal to answer categorically whether truthful publication may ever be punished consistent with the First Amendment."

But really, a nation with the First Amendment and the philosophical base from which it arose should not find that question hard to answer. Similarly, the power of the state to enforce tort decisions that destroy news publications might also be rethought. Some free speech fans see the principle in the Gawker verdict as so limited—you can't publish a sex tape without permission, big whoop!—that it's not worth fretting over. But that's just the specifics of this case. The principle at issue is whether six people carefully picked by clever lawyers to destroy journalists should be able to do so.

Holiday sloughs over the fact that numerous courts on the way to Hogan's jury victory in Florida saw his case as undeserving. Federal District Judge James D. Whittemore for instance, decided that Gawker's actions were "in conjunction with the news reporting function."

Gawker founder Nick Denton, Holiday's villain, said in deposition in the case: "I believe in total freedom and informational transparency…I'm an extremist when it comes to that. That's why I love the U.S. I love the presumption that expression is free and I want to make fullest use of that liberty that the internet provides." That very free-speech fanaticism, Holiday relates, was key to helping the Florida jurors wonder "what planet do [the Gawker] people come from?" and decreased any sympathy they might have for them.

Because Denton angered Thiel and Hogan, by expressing facts about them they did not want expressed, an entire journalistic empire was murdered. This should not be how America works; the only way to ensure that the whims of judges or juries don't choose what is or isn't legitimate public business (with the literal fate of publications in the balance) is to recognize that even through the tort system, speaking the truth should not leave you open to legal destruction. That a mass market book can uncomplicatedly think the opposite is a sad sign about the cultural state of free expression.

NEXT: Pulling the Plug in Paradise: Hawaii Legalizes Assisted Suicide

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  1. Mmm, yeah no.

    1. Mmmm, no yeah.

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        1. And for doing that you are, perhaps, a scoundrel of the worst sort.

          1. That being said, the statement in the above article that expression is “always a core element of Western liberty,” is false. Sure, some forms of expression are okay, but others are not, and when they are not, we have jail cells waiting for the perpetrators. Surely no one here would dare to defend the “First Amendment dissent” of a single, isolated judge in America’s leading criminal “satire” case? The Second Circuit, in that very case, has made it perfectly clear that if you engage in expression that is “puerile” enough, or that conveys an “idea” that’s acceptable to us, you can benefit from protection; but if you cross the line and deceitfully damage a reputation, then we have the right to send you to jail. Let me be perfectly clear: we will not hesitate to send you to jail if you attempt to offend the wrong person with your “free expression.” See the documentation at:

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      2. No. Gawker was killed because it fucked with someone who had the means to fight back. Let’s not forget they were already thin ice with their own readers for outing a mere relative of a somewhat well known person as gay.

        Fuck Gawker and fuck anyone who defends them. They were (and their remnants remain) a beast that deserved to be put down.

        1. See https://reason.com/blog/2016/03…..nt_5994639 ? About Hooker Hulk Hogan? “Hooker Hulk” gets $115 MILLION, v/s “Stormy Daniels” gets only $130 K, for each of them being skanky hos. The MALE skanky ho gets almost THREE orders of magnitude more money!!! How is THAT for sexual equality?!

          But what gets my bowels in an uproar even more, is that through the courts and policemen enforcing court orders and/or contracts here in these kinds of cases, Government Almighty is the Pimp Daddy and hit-man enforcer of it all! And then they go and jail $50 and $100 poor hookers, to “protect us from trafficking in sex slaves”.

          If Government Almighty is going to be the Big Pimp Daddy and hit-man enforcer, for the rich and famous, then could they PLEASE stop being hypocrites, and stop punishing the “little people” for doing the same things!??!

          1. SIDE-BAND SNIDE COMMENT:

            As a socio-economic and sexual-political experiment, I think someone should get Hooker Hulk Hogan to fuck Stormy Daniels. Which of the two would owe how much money, to the other?

            MAIN COMMENT:

            I think I have figured out WHY does Government Almighty play Big Pimp Daddy to the rich and famous, while punishing the dirt-poor hookers?! When $130 k or $115 million gets thrown around, Government Almighty gets to tax the payment and the lawyers, and grab at least 1/3 of it. Easy-peasy on the big transactions? When a small-time hooker turns a trick “under the table” (a kinky place to do it!), it is MUCH harder to collect! Especially if he or she is paid in smack or crack or Ripple wine?

            I am UTTERLY crushed to have fingered out that Government Almighty (which claims to LOVE me and want to PROTECT me from sleezy sex), is actually just wanting to line its own wallet!!!

        2. It’s actually still up at gawker.com. But yeah fuck that sleaze bag “publication”.

    2. I agree. HH should be able to sue for this. It wasn’t news or journalism. It was illegally obtained video infringing on his privacy rights. There is no 1st amendment rights at stake here. Don’t really like Thiel either, but I’ll back the asshole on this one.

  2. “perhaps some sense of proportionality should be involved such that driving a thriving journalism enterprise out of business should not be the result.”

    But as you point out, that was because of the “damage” to Hogan’s reputation and earning power. I will also offer that you are kind of off the point here. I really shouldn’t matter if it drives someone out if business, even a small lawsuit might be enough to scuttle a poorly run enterprise.

    I don’t really believe it was a fair sum, but I’m not sure how you arrive at a fair sum. He had earning power, but it was declining. An argument can be made that it may have helped his notoriety.

  3. NO, they were killed for their nasty habit of receiving stolen goods. Outing Thiel was the reason he wanted them gone, but they hanged themselves. Steve Jobs should have crushed them like a bug when the Gizmodouches stole that iPhone prototype, but better late than never. Whatever other good or bad things Thiel and Hogan may have done in their lives, crushing Gawker is something I will always be grateful for.

    -jcr

      1. If you are on the same side of an issue as Mikey, you got some soul searching to do.

        1. And if you’re a fickle believer in the right to privacy, how is that soul searching going?

    1. hear hear

  4. So, firstly, it’s hard for me to give a damn because Gawker was just a huge bag of dicks. I mean, an enormous bag of dicks.

    Secondly, it did get tried in Hogan’s hometown, which probably biased the jury against Gawker. But a bigger impact was that, when questioned on whether a sex tape was always newsworthy, the Gawker employee on the stand said “yes.” When asked if there was an age cutoff (and this is the important part), the employee said “yes” and then gave the age of “four” as the cutoff.

    How dumb do you have to be to think that’ll play well in a courtroom?

    Thirdly, I think there is some basis for saying Gawker invaded Hogan’s privacy (although honestly, it was his friend that invaded his privacy most of all). None of us would want clips of us when we think we’re in private (scratching our balls, watching clown porn, etcetera) to be posted to a news site to be laughed at. And the outcome of this benefited nobody, provided no relevant information about Hogan, and was basically a complete dick move.

    Fourthly, I can’t see this as a huge First Amendment issue. It wasn’t a political issue that got them shut down, it was Gawker making a poor editorial decision on “who can we make fun of today!” This is the media version of “is it okay to punch a Nazi”: even if you think Gawker shouldn’t be punished, it’s hard to really give a fuck because they’re just such amazing assholes.

    1. “How dumb do you have to be to think that’ll play well in a courtroom?”

      Very, since the mere possession of a sex tape involving a 17 year old would be a federal felony.

  5. I would feel more sympathy for Gawker if it weren’t for the fact that they were a big part in fostering this outrage culture that has silenced so many more voices. Now I just shrug. You reap what you sow

    1. The spinoffs that are still out there (The Root, Jezebel, etc.) certainly haven’t slowed down at all. If anything they’ve become even more outrageous than before. Doesn’t mean they shouldn’t have a platform, but man, I don’t have much sympathy for them.

      I used to enjoy several Gawker properties, but years ago they turned into utter crap. Sometimes you feel like reading about cars or sports without the intrusion of politics. Speaking of that, how’s ESPN doing?

  6. “Was Hogan harmed? Most humans with a hint of empathy would agree he was. Does that settle it? No. Many harms we permit to go legally unpunished. Going into competition with someone’s business can harm them.”

    Yeah, the old saw about how you should be free to do anything so long as you don’t harm anyone else is so dangerous because it gets so close to the libertarian truth–but ends up being totalitarian.

    The libertarian truth is that you should be free to do anything so long as you don’t violate anyone’s rights, but as you’re pointing out, things as simple as criticizing other people can harm them.

    Just about everything we do harms someone else in some way. Yes, growing wheat on your own property for your own use harms the interstate wheat industry–since there will be less QDD. But you should be free to harm interstate wheat farmers that way.

    . . . just like you should be free to criticize them, compete against them, entice their wives to leave them, or harm them in any other say–so long as you don’t violate their rights.

    The legal question is whether Hulk Hogan’s rights were violated.

    The ethical question is a completely different question.

    1. I’m sure there must be a more specific definition of ‘harm’ in the non-aggression principle. I’m pretty sure that economic harm isn’t part of the list.

      That said, I would agree that it’s an ideal rather than something that can be achieved.

    2. Were Hogan’s right’s violated?

      Clearly. In the porn industry, an actor doesn’t get paid for the “work”,, they get paid to sign the model release. I’ve never seen a model release, but I’m sure it includes clauses that detail that the images in question are of a sexual nature, that the signer relinquishes any and all rights to them, that they expressly understand that they are made to be distributed, etc. Hogan was informed of and agreed to none of these. If I’m not mistaken, it was shown that there was a financial nexus between Hogan’s “friend” and Gawker, allowing Gawker to be made a party.

      Doherty’s mention of the “true facts” are completely irrelevant. That I took an especially strenuous crap a couple of days ago is a “true fact”, but even if I were a “public figure” I have a right to keep that between me and my proctologist and/or plumber. If a guest uses my rest room under the same circumstances, they have similar rights, even though it’s my property, even if they’re a “public figure.”

      I’m much more disturbed by Thiel’s Palantir than with anything regarding Gawker.

      1. Florida law requires all parties to consent to a recording so if Hogan wasn’t aware of it then clearly he gave no consent. That fact alone makes the recording illegal by Florida law. If there was a financial tie between the person doing the recording and Gawker, it becomes one big nasty hairball that would take some kind of uber-wizard of parallel construction for Gawker get out of since they were the ones in possession of the record.

  7. It’s not that bad. It took a fantastic situation and a jury. The risk to any publication that is not a spectacularly bad actor is essentially zero.

    1. Bingo!

  8. The thing that bothers me about Europeans like Denton is that they don’t understand free speech. They think it’s a free-for-all. They don’t understand the responsibility that comes along with it. Having said that, of course publishing this video should not have put them out of business. It definitely seems like an injustice.

    1. Yeah, but they refused to take it down. They were basically saying “Make me!”. They thought they were invincible, and they got crushed. Boo Hoo.

  9. Gawker founder Nick Denton, Holiday’s villain, said in deposition in the case: “I believe in total freedom and informational transparency…I’m an extremist when it comes to that. That’s why I love the U.S. I love the presumption that expression is free and I want to make fullest use of that liberty that the internet provides.”

    It’s comforting to know that Nick won’t complain one iota if someone reveals embarrassing secrets about him without his permission, even if those secrets are so embarrassing that they could potentially cost him his career. Free expression and all.

    1. Right. I assume Denton wouldn’t sue if he found a camera in his bathroom and the images on the internet.

      1. He refused to let anyone take pictures at his wedding.

    2. Nick also quite angrily got pissed at people who posted the leaks photos of Hollywood female celebs whose pics were retrieved illegally.

      His behavior involving “The Fappening” shows that he was a hypocrite at best. One can argue that “naked successful Hollywood actress” is more relevant than “sex tape involving former wrestler who basically killed 2 companies by running them into the ground”

  10. Gawker wasn’t destroyed because they reported the truth (the fact that Hogan had a sexual affair with the wife of his friend). They were destroyed because they actually showed images of it, recorded without Hogan’s permission in a situation where he had a reasonable expectation of privacy. There is a difference. Showing naked pictures of someone that they did not agree to have taken really doesn’t count as free speech.

    1. States have imposed laws against revenge porn, but Brian thinks Gawker shouldn’t have been punished for basically doing that.

      1. Lots of online blogs have their undies in a bunch about it.

        If you can’t see the difference between what you do and what Gawker did, then 2 possibilities:

        1. You deserve the same thing that happened to Gawker
        2. You have a poor understanding of the situation or an inability to make any kind of distinction. And we shouldn’t waste our time reading anything you write on the subject

    2. The Obama lefty JournoList and the Professional Fake Libertarians of Reason (but I repeat myself) think that they should be free to smear and destroy the lives of whoever they heck want to, for whatever reason they want to, with evidence real, imagined, or completely nonexistent.

      They won’t admit it, but I suspect they probably think they should be totally immune from ALL the laws of the land. They’re right up there with public school teachers when it comes to having vastly overinflated feelings of self-importance.

      1. Exactly and they presume that because they are in the guild that means they can be sure that their embarrassing details wont leak.

      2. It does get a little annoying. I get it; Reason is a rag like any other and they don’t want government fucking with them. They’ve personally been on the receiving end of government shitters. But the Gawker case is a totally different bag. And Thiel financing Hogan’s lawsuit is absolutely no one’s business but Thiel’s and Hogans – it is absolutely freedom of association.

        Rest in pieces Gawker; no tears were shed.

    3. Based on what the article says, I’m not sure Hogan had an “affair” with the wife of his friend. If it was at his friend’s invitation (making the friend LITERALLY a cuck!), and the friend’s wife was also fine with the husband’s idea, then it was not really cheating, was it? An affair implies sneaking around/lying/covering up what’s going on. We’re talking about consenting adults who were open about what was going on.

      Still, for his Hogan to be filmed without his knowledge or consent was terrible. I think more blame falls on the friend for that, but I think lawyers work by suing the party that has the most money, and the publication probably had a lot more cash than some ordinary Joe who just happened to be friends with the Hulkster.

      1. The friend in question, Bubba the Love Sponge is not just some ordinary Joe, he’s a minor celebrity in his own right and he’s no pauper.

        1. And Bubba didn’t send the tapes to Gawker. One of his competitors stole it from his desk. The tapes were stolen to use in blackmail scheme. The sex tapes were released to TMZ and Gawker, but the “N-Word” tapes were to be used to get leverage money from Hogan. The FBI actually got involved to seize the tapes from the scumbag who stole them.

          1. Actually, Bubba and his wife were planning to make $$$ off the tape from before the beginning. Either Hogan would pay, or some tabloid would Gawker was in on it, that’s how they got to be a party.

      2. Not just a cuck but a money-grubbing cuck. A looter cuck.

  11. Seems to me that the real problem here is that there is no objective way to quantify harm due to invasion of privacy. So the jury just made up some number out of thin air which was so large that it bankrupted Gawker.

    1. No objective way?! That’s true for most torts. That’s why we have juries.

    2. No objective way?! That’s true for most torts. That’s why we have juries.

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  13. Hard time seeing this case as a dangerous affront to the sacred role of the press as guardians of the first amendment.

  14. Leaving aside the tiresome special pleading for journalists and news organisations, who neither have nor should have any constitutional rights over and above anyone else, the essential question is when “harm” constitutes an infringement of liberty (or property.) As Doherty says, all sorts of harm can be done to you by other people without your liberty being infringed at all.

    But when A publishes something that B has obtained by commiting a crime or a tort against you, it’s not the same as a purely innocent harm – A dating someone you’d like to be dating yourself. If, say, B rapes you and films it, and then A gets hold of the tape and publishes it, does the fact that A is separated from the underlying harm by a lateral pass stop it being the fruit of the underlying infringement of liberty ? Hardly.

    The old principle of English law is that when B steals something from C, and then A buys it from B in good faith, then A gets good title – even against C. But that is a practical approach as buyers can’t be expected to examine the provenance of everything they buy. But nobody could seriously pretend that it is just to C. And in a case like Gawker, there’s not even the acquisition in good faith argument to hang your hat on. Gawker cannot possibly have believed that the tape was shot with Hogan’s consent.

    1. Check out Law and Order over here.

      Good analysis though.

    2. So much this.

    3. (Not relevant to the Gawker lawsuit, but…)
      My understanding of English common law is different, that “a thief cannot convey title.” If B steals (item) from C, and then A innocently buys (item) from B, then C still retains title and A has the duty to restore (item) to C once he learns it was stolen. A’s only recourse is against B, for refund of the purchase price.

      1. Theoretically you’re correct in that in this case you have two victims. Given possession is 9/10ths ownership though, A would likely keep the property and C’s recourse would only be against B.

        Of course it depends somewhat on the item – a family heirloom….

        But think of a stolen credit card used to buy a bunch of stuff at Best Buy, products the thief resells for cash on Craigslist or whatever.

        In this case, the issuing bank is on the hook – they cannot reverse the charges from Best Buy, and given semi-anonymous cash transactions possible via Craigslist, the people who have the merchandise in hand are likely to keep it, even though they are technically another victim.

        Interesting 🙂

    4. Aye, ‘an entire journalistic empire was murdered,’ they are a tiresome and silly bunch, seemingly confused as to where they are. Perhaps a refresher on 1A, the bit on journalism, not providing for creation of a special class is necessary.

  15. People think if you give people freedom then they’ll just go crazy with it. For example, the drug war, if you let people do drugs they’ll all go crazy and rob drug stores and kill themselves. But Portugal shows that in fact the opposite happens – decrease in drug use, crime and death. Same for religion, Europeans think if you let people practice religion freely that they’ll concoct increasingly crazy religions and end up ruining everything. But of course, they really become more conformist. And this is especially true with guns. Europeans think we’re crazy to have such lax gun laws and imagine we’re shooting each other in the streets or will at any moment but in fact the most violence is where gun laws are most strict, like Chicago. So I imagine this guy Denton had funny ideas about free speech, and the American jury smelled it on his breath and punished him for his presumption. It’s a strange paradox about freedom being ‘the greatest thing to fear’.

    1. Yeah, the starting point for most authoritarians is arrogance based upon the idea that most humans are stupid/irrational, which demands a legal system in place to control those pesky humans from making decisions which their ‘betters’ know is wrong.

      And they’re certain they’re morally right, as in the end, they’re only asking for complete control to protect the ‘people’ from themselves.

      Give them at least that much; they know how to frame their message and ‘saving people from themselves’ is a much better message than ‘you will submit to the will of the state no matter what’.

      But that’s just framing. … reality is, just like a wife beater, these tyrants know the pain they’re causing others is necessarily and justified.

      Afterall, if the people weren’t so irrational, they’re would be no need for their purposed police state.

  16. No, Gawker was killed because they outed a very rich person who held grudges and considered his private life to be private. I applaud him for bankrolling the lawsuit.

  17. Really Brian? Who was/is a greater threat to free speech – Thiel or good ol’ Preet?

    1. Or shall someone bring up alleged sheep-shagging Texan(s).

  18. It’s a tough question, balancing rights. Like the beach example, the second person on the beach ruins the solitude which attracted the first person. But the first person also ruined the solitude which the second person may also have wanted; and what if the first person had gone, but left tracks; would that still have ruined it for the second visitor?

    My conclusion is that the only valid verdict of any case is restitution for harm done, and that harm has to be unavoidable, but that’s a messy answer. When a furniture store loses business to a competitor, that’s not harm unless the competitor blocked customers from entering the original store, or something else in itself harmful. Merely running a business is not a harm.

    In the Gawker case, Hulk Hogan’s beef is with the wife or her husband who set up the camera, not with Gawker who published it. He trusted the wrong people. Their harm may have been in recording the action, although how you can put a dollar figure on that, I do not know. Their harm may have been in publicizing the encounter, although that didn’t require the video; they could have just told their story and embarrassed him enough.

    And I don’t care that Peter Thiel financed the lawsuit. I favor such things, because profit (in this case, personal satisfaction at shutting down Gawker) is a damn good way for the poor to get justice — if they have a good case and can use profit to lure a lawyer to their side against someone rich or powerful, all the better.

    1. To me the harm which supposedly occurs at the beach is a non-sequitur because one could make exactly the same argument in reverse. Deciding to not go to the same beach harms the first’s enjoyment of the beach because they were hoping to play beach volleyball and finding nobody there they were “harmed” because they weren’t able to play. At some point it becomes ridiculous and is akin to being harmed simply because other people exist at which point it’s little more than sociopathy.

      Assuming the beach is part of the public commons there is no harm to another simply by being there. If one wants privacy on the beach, buy a private beach. Hell, buy an island.

      Likewise, is a business actually harmed by the introduction of a competitor? If it makes the business improve its product or service it is difficult to see how that is actually harm. Even if the business is forced to switch to a different model, product, or service it isn’t harm. It is only arguably harm if the business closes completely. In short, perceived harm isn’t necessarily actual harm. It’s one of these things that impoverishes the anti-free speech crowd because they fail to see that opposing speech should be making their speech better but they seem hung up on their rhyming chants even when the rhyme is extremely strained.

  19. Amateurish. Why is it pro-freedom to eliminate your right to have any kind of sanctuary from voyeurism?

    Gawker intentionally violated someone’s rights. Not every fact is public. That’s the law. Gawker knew this. It willfully assumed the risk knowing it had an insurance policy and the plaintiff didn’t. Even if it were in the wrong, it would get the benefits because of simple litigation realities. Gawker would have gotten away with it but for the availability of litigation financing. Again, not a new thing. And a good and free market thing. The jury got it right. A scummy operation has new management. I can’t think of any reason why we would want to protect the illicit gathering of information in private unless it was a high level politician and the information related to the public good.

    Companies and their employees that do this sort of thing, recklessly, at least shouldn’t mouth off in deposition and essentially dare a jury to punish them. Particularly when the plaintiff is the fucking Hulkster and the case is in Florida.

    1. I can’t think of any reason why we would want to protect the illicit gathering of information in private unless it was a high level politician and the information related to the public good.
      The crux of this, it think, is that a politician (or any person serving in an official public capacity) should not be expected to have the same level of privacy as a person NOT serving a public role; furthermore, a private actor engaging in sex in what he reasonably believes is a private venue. That is no one’s business. A public official having sex in a government building, or really doing anything unwarranted while in an official capacity, should have no such protection: in this case I can see a publication getting a pass for publishing something in the public interest.

      Hogan’s sex act was not in the public interest, and furthermore was taken without his consent. It seems clear that Gawker knew this, so they deserve no sympathy. That they couldn’t afford the bill for being absolute cocksuckers is just too bad.

  20. Gawker Was Killed for Publishing Embarrassing Truths

    Not true.

    Gawker killed themselves because Gawker management was unbelievably stupid, and either had unbelivably stupid council, or didn’t listen to them…

    “Can you imagine a situation where a celebrity sex tape would not be newsworthy?” asked the lawyer, Douglas E. Mirell.

    “If they were a child,” Mr. Daulerio replied.

    “Under what age?” the lawyer pressed.

    “Four.”

    When you are in a courtroom, the “fuck you we do whatever we want”-defense does not generally have a good track record for producing victory.

    You might think that a jury has no right to question a journalist’s application of the the Public Interest Test. But that’s not the argument being made.

    The implied argument being made is that the limits of professional ethics for journalists is simply that “information is technically true” Beyond that, there is absolutely no responsibility or liability for what they publish.

    I think this is wrong. So did a jury. And so do most professional-ethics societies for journalism.

    Handwaving about “but there’s no right to privacy!” is completely besides the point. No one claimed one, and it wasn’t what was on trial.

    1. No right to privacy is a curious position to take for a libertarian, but I’ve been told this is a big tent publication.

      1. Brian basically gives up the ghost in his own argument:

        “”perhaps some sense of proportionality should be involved such that driving a thriving journalism enterprise out of business should not be the result.””

        And of course it is. Thats why latitude is given to juries.

        He admits that ultimately, the question of liability hinges to a large degree on whether lawyers can convince juries the “Journalism” in question IS ACTUALLY JOURNALISM at all.

        That’s traditionally called the “Public Interest Test”. (see link above)

        The reason Gawker got raped by the jury so hard is because they didn’t even try to defend what they did on any public-interest grounds.

        Their defense amounted to “Fuck you, you have no right to question us”

        THAT is why the result was disproportional, and destroyed them. Not because of some bullshit philosophical questions about right to privacy.

        1. So it would have been better to apologize? I wonder if they were offered a deal.

        2. and this, post-facto rationale?

          “….the destruction of Gawker shut up not just pure prurient delight in Hogan’s private sexual acts but also lots of journalism of more obvious public importance…”

          is basically the legal version of ”j’esprit d’escalier” -(apologies for misspelling french) –

          i.e. “A good argument only realized long after the debate was over”

          And i imagine if gawker lawyers HAD made that argument to the court, and said, “Well, yeah, ok this one example is slimy…. but WE DO SO MUCH GOOD WORK IN OTHER AREAS”….

          …the plaintiff lawyers would go, “1) you’re conceding the case, 2) other material is technically irrelevant, but 3) since you brought that up, let’s show the jury your history of similar abuses” and the result would likely have been little different.

          I mean, really: if Gawker has really done so much obviously good work, which everyone has overlooked?… you’d think Brian might have included a single link in that high-minded sounding defense of the integrity of their journalistic mission.

          I think if they HAD made that argument, it would make these post-facto defenses of Gawker slightly less absurd. but only a little.

        3. Just special pleading.

          It was wrong for thiel to bankroll because of the outcome.

          Privacy is only meaningful when it’s your privacy we’re talking about.

          Journalists have a right to avoid responsibility for their actions.

          In the end, this one hits a little too close to home to allow principles to get in the way.

      2. “big tent publication.”

    2. I think its wrong too.
      But why is it wrong in articulable, libertarian, terms?

      Hogan had sex with someone.
      That someone secretly recorded their sex together, which is presumptively legal because they were party to the mutual act, and now owns the video.
      Sharing that video is presumptively her right as owner of the video.
      It is not defamation because it was true.
      It is not illegal eavesdropping because she was party to it the interaction.
      Is an invasion of privacy? Maybe, but that is hard to argue since Hogan’s privacy here was intimately related to her privacy, and he chose to intermingle his privacy with hers.

      Maybe the last one of the list the best argument, but it is very muddy.

      So, where is the legal wrong here?
      I am sure there is one, but can say what.

      1. “”why is it wrong in articulable, libertarian, terms?””

        You may be shocked to learn that courts of law are not libertarian debating societies.

        the reason Gawker got destroyed is because they claimed:

        – “The first amendment protects us from liability becuz we’re journalists!”

        and then proceeded to deny that there are any standards for what “journalism” requires.

        in short – they rested their case on a test they couldn’t actually meet.

        that’s called “Bad lawyering”.

        It has nothing to do with philosophical debates about ‘right to privacy’. all that matters in court is whether their argument convinces the jury.

      2. The problem with your argument is that Florida law requires all parties to consent to the recording making the recording illegal as Hogan disavows knowledge of the recording and thus he was unable to consent.

        “All parties must consent to the recording and or disclosure of the contents of and electronic, oral or wire communication. Fla. Stat. Ann. ? 934.03(3)(d).”

    3. “Can you imagine a situation where a celebrity sex tape would not be newsworthy?” asked the lawyer, Douglas E. Mirell.

      “If they were a child,” Mr. Daulerio replied.

      “Under what age?” the lawyer pressed.

      “Four.”

      And we learned that they were hypocrites and were never forced to ask “What about all of those leaked female nude celeb picks that you specifically refused to publish?”

      It was even MORE egregious because, bare minimum, all of the celebs knew the pics were taken. They weren’t intended for public consumption, but they were taken with their knowledge.

      Hogan didn’t even get THAT. He didn’t KNOW the video was being made.

  21. I’ll admit I didn’t read the article and still give this a big fat fucking nope. There’s no defense of gawker. None.

  22. So what is the point of everyone mentioning Peter Thiel bankrolling the lawsuits? Does the fact that an individual was able to outspend a corporation suddenly mean it was a bad lawsuit? If not then I could care less who bankrolled it or why. It seems everyone pro-Gawker just wants to make Peter Thiel into this bad guy that wants to destroy all that is precious and dear to them, when all that really happened is that rather than the corporation being able to out-spend the victim, the victim was able to out-spend them. Don’t really see any issue from my viewing.

    1. Insanely rich lawyers fund litigation all of the time. Ditto giant insurance companies and government. Bill of Rights cases get in some instances free legal help and loads of funding.

      1. Ah. So there is even less of a reason to bring up Peter Thiel then since it isn’t even that strange. ok.

    2. You got it. Gawker was the 9 figure bully going after the 7 figure Hogan. Thiel thankfully came to the rescue.

  23. Protect the guild.

  24. Gwaker was one of the biggest sources of fake news out there. Maybe they shouldn’t have gonne this way, but I’m not crying about the fact that they did.

  25. I would care mare about this if there was an article saying revenge porn is freedom of speech. Now, where is this article?

    1. I miss more revenge porn than Gawker.

    2. I miss more revenge porn than Gawker.

  26. https://reason.com/blog/2015/07…..deserves-t -> “But the market offers us a more immediate method of punishing Gawker for its hypocritical, bullying immaturity?one that people as different as Christina Hoff Sommers and Lena Dunham can get behind: stop reading the site.” -> Now that was good advice.

  27. I read the book. Gawker’s mo was to just publish shit about people and hide behind the first amendment and the tort system. The Hogan case was not about the first amendment, but about privacy and emotional distress. Thiel had enough money to go all the way with Gawker, and eventually Gawker got nailed. Hooray!

    The first amendment was and is not threatened by the Hogan case and Thiel’s financial support. The case was about bullying, and Gawker finally screwed with the wrong people. That’s it. The world is a better place without them.

  28. “Because Denton angered Thiel and Hogan, by expressing facts about them they did not want expressed, an entire journalistic empire was murdered.” -> Again, I would agree ONLY if you say the exactly same thing about revenge porn.

  29. It’s leftist paranoia to fear powerful individuals financing efforts to affect discourse. That’s a big reason why they want campaign finance law.

    If I detest the NY Times and contributed 50 bucks to a viable lawsuit against them, I would be doing what Thiel did. If a female personality for FOX sued them for sexual harassment and the public (or even a millionaire) raised money for the lawsuit, the left would see nothing wrong with it. It really doesn’t have anything to do with free speech or press.

    As others have already noted, Gawker did more than publish a simple fact. “Hulk Hogan is having an affair” is something any newspaper and gossip magazines can publish. They violated his privacy. Trying to paint Thiel as a hypocrite for founding a company that provides metadata for the government serves no real purpose other than to paint him as a malcontent.

    1. It’s leftist paranoia to fear powerful individuals financing efforts to affect discourse. That’s a big reason why they want campaign finance law.

      …but then they don’t notice that Andrew McCabe’s lawyer is, well, a bit familiar with the GoFundMe campaign to, well, pay him to defend McCabe. That’s, of course, “different”

    2. It’s leftist paranoia to fear powerful individuals financing efforts to affect discourse. That’s a big reason why they want campaign finance law.

      …but then they don’t notice that Andrew McCabe’s lawyer is, well, a bit familiar with the GoFundMe campaign to, well, pay him to defend McCabe. That’s, of course, “different”

  30. I don’t think Brian Doherty read Holiday’s book, or has done much research on this case. Maybe if there were some revenge porn used in court against him, that went a step further and tried to argue that he is an unsuitable father because of some filmed kink, he might have a different take. Because of the gawker case, there is legal precedent set, that will help prevent this egregious behavior in the future. There are thousands whose lives have been majorly impacted by revenge porn, and at the very least, they now have some type of vicarious voice of victory. The lack of empathy and lopsidedness of this case, by journalists from major organizations, has convinced me that journalism doesn’t really exist. Peter Thiel absolutely made the correct moral and ethical decision and is a damn hero in my mind.

  31. This is a dumb take. What kind of “libertarian” supports bedroom reporting?

  32. Gawker Was Killed for Publishing Embarrassing Truths

    Actually you lying fucking prick Gawker was ‘killed’ because they trafficked in intellectual property that did not belong to them. The case was not about the First Amendment which is a restraint on government. And the case also wasn’t about publishing embarrassing truths since the tort in question was not libel. Gawker was free to publish all of the lurid details of the case like every other gossip rag in the free world did. They were not free to publish the video without the consent of the parties being filmed. I know Reason doesn’t believe in intellectual property except for it’s trademarked logo and copyrighted content but to the blessing of all who live here Reason does not make the laws and the laws do recognize intellectual property and allow for punishment when it is stolen.

  33. Why is the “press” that trades is gossip about celebrities so worthy of protection? Maybe, when it concerns private citizens, not politicians, the First Amendment needs to pruning.

  34. Giving juries the power to destroy a journalism enterprise for being offensive is bad for free expression.

    Whether Gawker was a “journalism enterprise” or not is irrelevant; they are subject to the same laws as everybody else.

  35. It is truly sad that nowadays, people doesn’t know what is right and wrong anymore.

    Truly sad… Unfortunately, these are just the norms of today…

    “But know this, that in the last days critical times hard to deal with will be here. 2 For men will be lovers of themselves, lovers of money, boastful, haughty, blasphemers, disobedient to parents, unthankful, disloyal, 3 having no natural affection, not open to any agreement, slanderers, without self-control, fierce, without love of goodness, 4 betrayers, headstrong, puffed up with pride, lovers of pleasures rather than lovers of God, 5 having an appearance of godliness but proving false to its power; and from these turn away. 13 But wicked men and impostors will advance from bad to worse, misleading and being misled.”
    (2 Timothy 3:1-5; 13)

    The Good News is:

    “When the wicked sprout like weeds And all the wrongdoers flourish, It is that they may be annihilated forever.” (Psalms 92:7)

    -According to Chronology, the Bible is 3,500 years old, & if you doubt this, go to a *Museum not the Internet. The Bible has been translated into about 2,600 languages, and billions of copies printed & distributed. More than 90 percent of the people in the world can read the Bible in their own language. And each week, more than a million people get a Bible! Yes, there is no other book like the Bible. Now, if the Bible is obsolete, why are its words so legit? Have a Bible question?

  36. I am not sure if I agree with the premise of this article.
    It seems to dance between advocating the higher principles of freedom of speech, and somehow still acceding to whether defamation laws are valid constraints on it.
    To be clear, the government should be illegalized from prohibiting speech and invading privacy, but private entities can also be, post-violation, be held for invasions of privacy and defamation.

    From what I understand, the video that Gawker published was a private recording, both taken without the permission of Hogan and without permission to be published.
    I believe his claim of illegal publication of private information was more of a claim than defamation; in defamation a complete defense is that it was the truth, which in this case it was.

    What Gawker did liably, was release, publish and broadcast private information on/about Hogan without his permission. (Which also begs the question as to why the person who illegally recorded activity between two people wasn’t charged with criminal evesdropping — unless it was the other person in the video of course who did it, one party consent.)
    I guess if the other person in the video knowingly recorded the incident, she on her own recognizance could legally release it, but I don’t know if she could give consent to third parties to release it.

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  38. So, if a celebrity has somebody record them having sex without their knowledge, it is wrong for that person to sue the ones who publicized it? It’s not like Hogan was a willing party to the recording. It’s not like Hogan didn’t request the removal of the video. Gawker decided to be their usual dickish self and refuse, in spite of it having LITERALLY zero news value (a single guy fucks a woman — NEWS AT 11!!!)

    Is this the new “Libertarian” line? That EVERYTHING is fair game when it comes to media?

    Gawker is an especially egregious example of shitty “reporting” and Reason trying to defend them is laughable.

  39. I think what Gawker did was wrong.
    But why is it wrong in articulable, legal, libertarian, terms?

    Hogan had sex with someone.
    That someone secretly recorded their sex together, which is presumptively legal because she was party to the mutual act, and now owns the video.
    Sharing that video is presumptively her right as owner of the video.

    It is not defamation because it was true.
    It is not illegal eavesdropping because she was party to it the interaction.
    Is an invasion of privacy? Maybe, but that is hard to argue since Hogan’s privacy here was intimately related to her privacy, and he chose to intermingle his privacy with hers.

    Maybe the last one of the list the best argument, but it is very muddy.

    So, where is the legal wrong here?
    I am sure there is one, but can’t say what.

  40. Gawker harmed Hogan. The govt didn’t prosecute Gawker for this. Hogan sought redress in civil court, as is appropriate. The jury decided that Gawker harmed Hogan to the point that Gawker needed to compensate him. This is exactly how the system is supposed to work. There is no chilling effect on free speech here. The govt didn’t come after the media. The only thing that is chilled here is the junk media’s insistence that anything and everything should be considered newsworthy. If they still want to publish trash, they can. But now they know the price for doing so could be way more than it’s worth.

  41. Governments should not be in the business of suppressing or punishing speech, even offensive and embarrassing or humiliating speech. Libel and slander laws are archaic means for punishing those whose speech offends someone. They are based on a false premise: that your reputation is your property.

    Your reputation is not yours for the simple reason that your reputation is what other people think of you. You don’t have the right to interfere with or control or censor the information other people receive and consider about you. You may not like what others say about you, but you don’t have the right to interfere.

    The remedy for “bad” speech or false speech or cruel speech, is more speech. Expose the offender and let other people decide what they think. Leave the coercive power of the state out of it.

    Anyone who files a lawsuit designed to punish or inhibit the expression of others, is seeking to use violence against others. That’s just uncivilized. Peter Thiel should stop using the word libertarian. He is a villainous opponent of liberty, as shown with Palantir and with the lawsuit against Gawker.

    1. Again, I would just agree with this if the people who write this would write more pro-revenge porn articles. Feminists who are aginst revenge porn are against freedom of speech. Revenge Porn > gwarkeree

    2. Also, the whole joke about Jeff Deist being a fascist for being pro-freedom of association. If this website had balls they would just defend gwaker after defending Jeff Deist.

  42. Seriously, “Reason”? Your defending the hate rag “Gawker”? You know they loathe libertarians, don’t you? They were destroyed because they lied and slandered people. Free speech is one thing, going out of you way to viciously destroy people you disagree with with lies, innuendo, gossip etc. is another thing. I glad “Gawker” is gone. Fuck them they won’t be missed.

    1. Sorry, alot of typos in my above comment but Gawker got what they deserved, may other media outlets have this happen to them.

  43. Why Gawker lost: from the Hogan case brief

    Gawker Defendants erroneously contend that public concern is a pure question of law. In this case, public concern was a question of fact that was properly submitted to the jury, which this Court should now independently review under the constitutional facts doctrine.

    [See e.g., Judge v. Saltz Plastic Surgery, P.C., 367 P.3d 1006, 1013 (Utah 2016) (if court concludes that reasonable minds could differ concerning the newsworthiness of the information, then the issue is a jury question); Times-Mirror Co. v. Superior Court, 244 Cal. Rptr. 556, 564 (Cal. Ct. App. 1988) (newsworthiness “is a question to be answered by the jury”); Virgil v. Sports Illustrated, 424 F.Supp. 1286, 1290 (S. D. Cal. 1976); Capra v. Thoroughbred Racing Ass’n of North America, Inc., 787 F.2d 463, 464 (9th Cir. 1986); Kapellas v. Kofman, 459 P.2d 912, 922 (Cal. 1969). ? Snyder v. Phelps, 562 U.S. 443, 453-54 (2011), cited by Gawker Defendants, illustrates the proper procedure, which was followed in this case. In Snyder, there was first a jury verdict for the plaintiffs, which was followed by an independent judicial review of the public concern issue.

    its not about ‘privacy’; its about the defendant basing their protection from liability on the question of “newsworthiness”

    the made this the question that the trial had to answer. and when they were asked to defend it on those grounds, they failed.

  44. Mr. Thiel claims to be outraged by “impoliteness” but supported Donald J. Trump.

    He is very confused, a liar, or both.

    Less ambiguous is Mr. Thiel’s position as the most obnoxious type of faux libertarian.

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  46. a. An individual in a free society has a reasonable expectation of privacy.
    b. Lawsuits like this are good, since they discourage the lurid interests of Journalists and the people they write for.

  47. Why does Reason have mentally shortchanged writers doing it’s columns?

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