The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Gawker, Techdirt, and the First Amendment under fire
Regular readers of my posts here on the VC know that I'm a big fan of Mike Masnick's Techdirt website, which consistently has intelligent, in-depth reporting about the dismal state of our intellectual property laws (among other topics within the general realm of technology policy). It is an extremely valuable public resource.
Now comes news that the self-proclaimed "inventor of email," Shiva Ayyadurai (see www.inventorofemail.com) is suing Techdirt (and Masnick personally), to the tune of $15 million, for libel. [The complaint is here, and a good summary by Jeff Roberts at Forbes.com is here,] Masnick and Techdirt have been outspoken—relentlessly so—in contesting Ayyadurai's claim to have "invented email," calling those claims, among other things, "bogus" and expressing the opinion that Ayyadurai was a "fake email inventor" and a "fraudster."
Ayyadurai, worrisomely, is represented by Los Angeles lawyer Charles Harder. Harder was Hulk Hogan's counsel in the recent libel suit against Gawker, which drove Gawker into bankruptcy. Indeed, destroying Gawker may well have been the prime object of the suit (and of Harder's scorched-earth legal tactics). As we learned only after the judgment had been handed down, Harder and the rest of Hogan's legal team was bankrolled (to the tune of $10 million) by billionaire Peter Thiel, who had been "outed" by Gawker several years before and who had, consequently, a deep-seated personal grudge against the site and its operator. [See the timeline of "Peter Thiel's war on Gawker" here].
Whatever you may have thought about Gawker's brand of salacious and sensationalist "journalism," or about the propriety of outing public figures, the specter of thin-skinned billionaires targeting, and silencing, those voices of which they disapprove is not a particularly attractive one—at least not if you really believe in the value of free expression. [Though, of course, our president-elect has shown something of a penchant for just that kind of thing, and has indicated that, if anything, he'd like to see more of it.]
It's such a wonderful time to be a billionaire in America, don't you think? Everybody thinks the system is rigged, and they—we—put the billionaires in charge of un-rigging it!!
Whether or not Ayyadurai has a valid legal claim against Techdirt—which, for any number of reasons, I strongly doubt**—the legal fees alone can easily drive a small operation like Techdirt into bankruptcy.
** Much of what Masnick has written concerning Ayyadurai's claim constitutes protected "opinion" that cannot be the basis for a libel claim. With respect to any assertions of fact, Ayyadurai, because he is clearly a "public figure," has the burden of demonstrating not only that the assertions were false and defamatory but also that they were published with "reckless disregard" of whether they were true or not. I strongly doubt that Mr. Ayyadurai can sustain that burden in this case.
As Masnick writes:
Defamation claims like this can force independent media companies to capitulate and shut down due to mounting legal costs. Ayyadurai's attorney, Charles Harder, has already shown that this model can lead to exactly that result. …
[T]his is not a fight about who invented email. This is a fight about whether or not our legal system will silence independent publications for publishing opinions that public figures do not like.
And here's the thing: this fight could very well be the end of Techdirt, even if we are completely on the right side of the law …. We are a truly small and independent media company. We do not have many resources. We intend to fight this baseless lawsuit because of the principles at stake, but we have no illusions about the costs. It will take a toll on us, even if we win. It will be a distraction, no matter what happens. It already has been—which may well have been part of Ayyadurai's intent.
He calls it "Techdirt's First Amendment Fight for its Life":
Whether or not you agree with us on our opinions about various things, I hope that you can recognize the importance of what's at stake here. Our First Amendment is designed to enable a free and open press—a press that can investigate and dig, a press that can challenge and expose. And if prominent individuals can make use of a crippling legal process to silence that effort, or even to create chilling effects among others, we become a weaker nation and a weaker people because of it.
He's right; there's an enormous amount at stake here, as part of what promises to be a fierce battle over "opening up," as Donald Trump referred to it, our libel laws. Defenders of free speech will be sorely tested, and they will have to pick their battles; Masnick's is an important one, and his posting lists a number of ways you can help him fight it.