Is litigation an undesirable response to the exercise of free speech by a news/media organization? (1 Viewer)

jbutler

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Unless you've got your head under a rock you've seen stories about Peter Thiel's crusade against Gawker. After several hinting stories, it was finally revealed that Thiel underwrote Hulk Hogan's case (originally discussed on PCF here) as well as other yet unidentified attempts to sue Gawker for it's reporting and/or commentary.

Now people are coming out of the woodwork to rebuke or distance themselves from Thiel and his legal strategy, often with broad statements about how litigation of this kind should not be permitted.

The Cliff's:

Thiel was semi-outed as gay (he was out to friends/family, but not publicly outspoken about his sexuality) in a 2007 Gawker piece and was evidently not pleased. He followed Gawker over the next decade and eventually found, among others, a candidate for high-return litigation against Gawker in Hulk Hogan. That case eventually resulted in a $140MM verdict which is currently on appeal.

The New York Times reported on rumors that Thiel was funding Hogan's litigation and soon after that article, Thiel confirmed the truth of the rumors. Gawker has written numerous pieces on the matter including an open letter from founder Nick Denton. The New York Times has also weighed in (though that article which purports to consider the threat to press freedom is sadly short on substance imo).

As much of a fan of Gawker as I am and as much of a travesty I think the Hogan case to be, I still don't know that I'm quite on board with the argument that litigation against media outlets is some kind of attempt to subvert the First Amendment.

Cases like these are routinely thrown out of court on motion well before extraordinary expenses are incurred by the publisher. Litigation "of this kind" is already prohibited and, if the motions had been handled properly, the case would have been dismissed, perhaps even with an award of attorneys' fees to the defendant. Only because of the abject stupidity of the judge in the Hogan case did it go anywhere. Yes, if you get past a thick-skulled judge you can occasionally get a jury of idiots to forget that they live in America, but in truth it's a failure of the judiciary and the citizenry represented by the jury at that point, not an indication of some kind of corrupt strategy by the plaintiff.

So far as I can tell now, Thiel is most certainly a self-absorbed jerk and has pushed forward with this case - the Hogan case- in bad faith, but I can't agree that the remedy is somehow to change the law to make it impossible or even more difficult for citizens to sue media organizations.

I'm not certain in my opinions on this, so I'd love to hear the views of anyone who has taken the time to understand the above facts.
 
I can't agree that the remedy is somehow to change the law to make it impossible or even more difficult for citizens to sue media organizations.

In general, I'm not a huge fan of tort limitations.

I'm with you on this. Tort reform to limit suits against media organizations both expressly and needlessly limits citizens' rights in such matters, while simultaneously allowing unscrupulous members of the media to operate with effective immunity. Allowing lawsuits to be brought against the media is a necessary check against the rights granted by the First Amendment; a competent judge/citizenry is a necessary check against frivolous/meritless lawsuits. The problem doesn't reside w/the laws and interpretations as they exist today, but rather with idiots.

To some degree, I think situations like this also serve as a cautionary tale to elements of the media that operate on the edge - be reasonable/responsible with what you print, or it could come back to bite you. Even if the media wins the case, they still paid billable hours, and that's not nothing.
 
In my non-lawyer opinion it is exceptionally difficult for a "public figure" to win a case vs the media even when the story is laughably false. Even someone who isn't a public figure has some daunting hurdles to overcome to win a case vs the media. I can not find a good reason to make it harder to bring cases against the media.

I have been told by the family law firm that it is unlawful in Texas for a private party without a law license to fund litigation for profit. (I was offering to pay for the expert witnesses in exchange for a cut of the fee if they won.) It could be that such a rule could be applied to Thiel's situation - though if he were willing just to front the costs as a "public service" rather than as an investment I wouldn't want to stop that.

It might be more beneficial to try and root out incompetent or corrupt judges. It also might be good to limit the effort to get a jury pool made up of stupid and/or ignorant jurors. I shudder at the notion of being judged a typical American jury unless I were guilty and wealthy.

If we are going to consider additional protections for the press, I would like to focus on protections for reporting on government matters. Almost everything is a "state secret", essential to our national security and if the press reports on that they run some risks.
 
In my non-lawyer opinion it is exceptionally difficult for a "public figure" to win a case vs the media even when the story is laughably false. Even someone who isn't a public figure has some daunting hurdles to overcome to win a case vs the media. I can not find a good reason to make it harder to bring cases against the media.

I have been told by the family law firm that it is unlawful in Texas for a private party without a law license to fund litigation for profit. (I was offering to pay for the expert witnesses in exchange for a cut of the fee if they won.) It could be that such a rule could be applied to Thiel's situation - though if he were willing just to front the costs as a "public service" rather than as an investment I wouldn't want to stop that.

It might be more beneficial to try and root out incompetent or corrupt judges. It also might be good to limit the effort to get a jury pool made up of stupid and/or ignorant jurors. I shudder at the notion of being judged a typical American jury unless I were guilty and wealthy.

If we are going to consider additional protections for the press, I would like to focus on protections for reporting on government matters. Almost everything is a "state secret", essential to our national security and if the press reports on that they run some risks.

The nature of the impediment to litigation funding differs substantially state-to-state. In some states it is strictly forbidden and the courts are very proactive in rooting it out. In others, there is no limitation in law or the limitation in place is rarely used to dismiss cases. In the vast majority of states, the rules of professional responsibility for lawyers prohibit splitting fees with nonlawyers except under very specific and rarely occurring circumstances.

In this case, I don't believe there is any evidence that Thiel intended to profit financially from the litigation and if that is the case, he would be in the same position - structurally - as organizations like the ACLU.

At the risk of derailing this very, very popular thread, I'll say that you would be astonished (or perhaps not) at how difficult it is to oust a sitting judge in most places. A family friend was a Superior Court judge for decades in my hometown and his violations included:

(1) having a financial interest in a rehabilitation program to which he sentenced criminal defendants;
(2) using racially prejudiced language from the bench (always graded to be slightly less than what would at the time be deemed explicitly "racist");
(3) stating to juries in criminal trials that the prosecution is trustworthy;
(4) regularly intervening during direct and cross examination and questioning witnesses on his own in the manner of a prosecutor.*

None of the above were secrets. He was regularly appealed (and regularly overturned) on the basis of (2) through (4) above. And (1) only came out when an out-of-town lawyer who had nothing to lose by throwing him under the bus was leaked some information by a local lawyer who knew that if it was released under his own name that he would be finished in the local legal community. The judge left the bench (retirement on threat of removal from the Judicial Qualifications Commission) after racking up a very generous retirement package.

Another judge in a nearby jurisdiction with whom I was acquainted but not as close was guilty of at least two of the above offenses and only left the bench after he pulled a handgun on another man in traffic. He wasn't quite as long on the bench as the first, but he did plenty of damage.

One huge problem is that many jurisdiction still elect judges which is an utterly insane practice. There have been some attempts to reform campaign finance and ethics rules for judges, but even the U.S. Supreme Court is reluctant to do anything beyond nibbling at the edge of the corruption that exists to support that system.

All of that to say that while I absolutely agree in general that removal of incompetent or corrupt judges should be a goal, that's the long game. In the meantime, we have to assume that the same political hacks and institutional cronies that are on the bench will stay and their replacements will be more of the same.

I'm not any more optimistic about reforming our jury selection practices. Turnout for jury selection is terrible enough now that any further requirements for jurors is a pretty unattractive option. On top of that, I'm sure that those requirements would be fought hard as violations of the right to trial by jury.

*This requires some explanation. Rules of evidence prohibit lawyers from asking "leading questions" (i.e., "You called your husband that evening, isn't that right?" or "Didn't you think that was unusual?") except of those witnesses called by your adversary and/or adverse to your client's interest. So prosecuting attorneys are allowed to "beat up" defense witnesses to some degree. In his position, he questioned witnesses as if he were a prosecutor.
 
I didn't read your whole thing, and I'm too dumb to understand most of it anyway, but...

I'm super pro first amendment. I think that there are good reasons to sue media outlets (libel, defamation, harassment, etc). Public figures, including celebrities, seem to have fewer rights somehow. I can make a satire bobble head of trumps orange head on a troll doll body and market it, but if I do that to butler, he can sue me. Although an unsold warehouse full of jbutler troll dolls should be punishment enough.

This murky area between first amendment rights and libel/defamation seems like it largely works. This one case seems like an anomaly, not a problem that needs more laws. Hopefully the appeal process will do its job here.
 
I worked on a campaign to oust a family court judge in Houston. How bad was he? Once he ordered a "bad dad" taken from the court and put to death. Another time he climbs on his desk in open court and draws a pistol while demanding order in the court. In general he didn't believe there ever was much of a case for the father to have custody or much of any parental right in a divorce.

Our efforts failed. But low level judicial elections are partisan, so the next time a wave election passed, it washed this guy from the bench.

I do believe that almost every judge in Texas can be "rented" by bribes labeled as campaign contributions. I expect that is true in other states where judges face the voters. A great system for wealthy white men. Not so much the further you deviate from that, especially the rich part.
 
I worked on a campaign to oust a family court judge in Houston. How bad was he? Once he ordered a "bad dad" taken from the court and put to death. Another time he climbs on his desk in open court and draws a pistol while demanding order in the court. In general he didn't believe there ever was much of a case for the father to have custody or much of any parental right in a divorce.

Our efforts failed. But low level judicial elections are partisan, so the next time a wave election passed, it washed this guy from the bench.

I do believe that almost every judge in Texas can be "rented" by bribes labeled as campaign contributions. I expect that is true in other states where judges face the voters. A great system for wealthy white men. Not so much the further you deviate from that, especially the rich part.
This surprises me a little. I would think bribery would work for all races and genders.
 
I say we return to an old fashioned honor based society with trials by combat. Let Hulkamania run wild on those poor desk jockeys at Gawker.

Seriously though, media outlets are far more powerful than almost anyone who might sue them. What is gained by giving them more protection?

The NYT is quickly losing its little remaining credibility. I'm sure they would have a different take if Soros was funding lawsuits against News Corp publications or websites.
 
Helping fund a legal effort for a plaintiff to sue someone (that has harmed the plaintiff) seems ok to me. Don't attorneys who take a case on contingency effectively do this? If they win big, their payday is a percentage of the judgement, and is not driven by their actual hours worked.

I applaud Thiel for shoving it up Gawkers ass for outing him (pun intended). People should control that information about themselves.
 
Like Jeff, I fail to see the difference between class-action lawsuits and what Thiel did.

But I read the original Gawker article and failed to see how it deserved a vendetta-level response. You could've replaced Thiel in the story with Tom Cruise.
 
Helping fund a legal effort for a plaintiff to sue someone (that has harmed the plaintiff) seems ok to me. Don't attorneys who take a case on contingency effectively do this? If they win big, their payday is a percentage of the judgement, and is not driven by their actual hours worked.

I applaud Thiel for shoving it up Gawkers ass for outing him (pun intended). People should control that information about themselves.

Like Jeff, I fail to see the difference between class-action lawsuits and what Thiel did.

But I read the original Gawker article and failed to see how it deserved a vendetta-level response. You could've replaced Thiel in the story with Tom Cruise.

As noted above, there is no bar anywhere against third-party funding of litigation. The controversy arises when those third parties share in the judgment. Some places permit it. Most don't. There are good policy arguments for both views imo. This law review article contains a pretty comprehensive review of most aspects of third-party litigation funding.

The ostensible justification for the different treatment of litigation funding by a third party and funding by a lawyer representing the plaintiff is that the lawyer is subject to ethics rules that control his actions on behalf of his client and non-attorney third parties are not. If the lawyer runs afoul of ethics rules he can be warned, sanctioned, suspended, or disbarred depending on the severity of the infraction. The third party is under no such duty and the concern is that the third party will gin up litigation for profit where litigation might not otherwise occur. This is the same theory that underlies the regulation of attorney advertising.

@Jeff if by "[p]eople should control that information about themselves" you mean generally private information about their sexuality, I would agree (except in those cases where the individual is a public figure and has himself drawn attention to his private life). But I do not think we should allow courts to award "damages" just because someone did something we don't think they "should" have done.
 

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