This article was originally published on Forbes.com.
“Where the press is free, and every man able to read, all is safe.” – Thomas Jefferson
The atmospherics surrounding billionaire investor Peter Thiel’s vendetta against Gawker Media–big money, sexual intrigue, Silicon Valley gossip, libertarianism run amok, and the pièce de résistance, a furtive connection to a World Wrestling Federation icon, no less!–obscure the episode’s troubling repercussions. If the super wealthy succeed in destroying media outlets that run stories they don’t like for one reason or another (even if there is merit behind the reason), then what kind of deterrent effect is that going to have on press freedoms moving forward?
Yes, the media has the right–I would argue the obligation–to aggressively exercise its First Amendment guarantees. And yes, businesspeople and private citizens have the right to file lawsuits if they feel they’ve been unfairly damaged or defamed.
The societal tension between these two rights has gotten thornier of late, as has the financial pressure confronting media outlets. Whether “new” or “traditional,” many media businesses in today’s fractured climate are struggling to remain viable. Can American democracy survive if print, broadcast, and online outlets are chronically cowed by the threat of lawsuits that could ruin them? So what is the new legal standard—not malice aforethought but an offended billionaire reader? The reason for such a high bar in libel cases is to avoid the chilling effect on the First Amendment, but if all you need are a billion dollars and a thin skin to chill the First Amendment, then we are in far greater peril than the Founding Fathers dreamed.
To be sure, there are facets of Gawker‘s decade-old coverage of Thiel that are unsettling. Someone’s sexual orientation ought to be a private matter unless they choose to make it public. “Outing” still strikes many of us as an abhorrent exercise. Gawker may not have intended to be mean-spirited or snarky in its 2007 “Valleywag” item–but Thiel and his business partners were within their rights to be angry.
Still, does such enmity justify the clandestine underwriting of lawsuits bent on revenge–with the clear objective of delivering a knockout blow to the “offending” outlet?
There’s a big difference between the tone and tenor of the New York Timesand new media such as Gawker and TMZ. Attorney David Lat, founder of the blog “Above the Law,” asserts that, “Peter Thiel was within his rights in deciding to finance litigation against Gawker, and Gawker shouldn’t have put itself in a position where an enemy like Thiel could have caused the company so much harm. I don’t support Gawker’s posting of the Hulk Hogan sex tape–and I suspect that Gawker has some regrets about it as well.
“But I am concerned about whether this trend of billionaires financing litigation against media companies could spread to outlets that are less controversial than Gawker and lawsuits that are less meritorious. There’s schadenfreude over Gawker’s troubles right now because Gawker has made some enemies over the years. But how will people feel if weaponized litigation starts targeting better-loved news outlets that are breaking important stories on matters of undisputed public concern?”
Five years ago, Washington Redskins owner Daniel Snyder pursued a vengeance suit against Washington, D.C.’s City Paper for printing an unflattering, albeit well-documented, story about his personal foibles and prickly management style. His express goal was to force City Paper to spend so much on legal fees that its finances would be decimated. Many observers found Snyder’s tactics heavy-handed and petty. After seven contentious months, he dropped the suit, but not before the paper spent money it could ill afford on legal representation.
Nick Denton, Gawker’s managing editor, emailed me this conviction on May 31: “Billionaires like Peter Thiel have vastly more influence than most politicians, but generally do not believe they should be subject to the same kind of attention and scrutiny.”
On that same day, writer Stephen Marche, a frequent foil of Gawker’s, wrote in the New York Times: “Mr. Thiel meanwhile seems to want a world in which he, personally, encounters no resistance, whether it comes from government or the free press or anyone else for that matter. He has declared, “I no longer believe that freedom and democracy are compatible,” and he is on the board at Facebook. The new breed of technologists who are taking control of the news media do not feel they should pay taxes or submit to regulation or offer anything more than disruption to their employees. They need to be challenged. And Gawker, at least, has challenged them.”
Historically, danger always lurks when bullying tycoons go unchallenged. While a lake and yacht club seemed like a great idea to Andrew Carnegie in the late 1880s, his lieutenant Henry Clay Frick chose to dangerously cut corners by refusing to use qualified engineers. The unintended consequence was one of America’s greatest “natural” disasters, the Johnstown Flood, which tragically killed more than 2,000 innocent people. By secretly exploiting Hulk Hogan and a bevy of lawsuits, Thiel triggered a deluge of unintended consequences for the First Amendment.
“Seek revenge and you should dig two graves, one for yourself,” Amazon founder and Washington Post owner Jeff Bezos said when asked about Thiel’s tactics.
I’m not going to defend everything that gets published in new or old media. Much of it is only loosely tethered to the truth; some of it is downright scurrilous. But I can’t help but think that Thomas Jefferson would take a dim view of Thiel and Snyder and other bigwigs who resort to legal belligerence to stifle the press.
“The basis of our governments being the opinion of the people,” Jefferson famously wrote, “the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.”
Richard S. Levick, Esq. is Chairman and CEO of LEVICK and a contributing author to Tomorrow.