Defamation: Gawker, freedom of the press, & big jury verdicts

A few days ago I responded to a Q by a friend of mine. He asked why HuffingtonPost articles were dominated by lists. What was this thing with lists?

I felt ever so hip when I told him that, yeah, lists were such a big deal there was even a term for pieces or posts that were lists: listicles.

Listicles are supposed to attract readers because, well, hey, I’m not sure. Smoother to read? Faster to read? An automatic, Twitter-like restriction/reminder on limiting your words because nobody reads anything more than 140 characters nowadays?

Sorry, theorists: I write long. I started writing before instant gratification and thumb-texting and although I’m sort of proud that I can do a tweet about something I’ve posted here, here is where I feel I can spread out.

Especially with the following collection of related lawsuit stories about which I find I have a lot to say. And it isn’t because Hulk Hogan is the centerpiece.

BUT. I’m going to fold myself into the listicle convention. Here goes.

The bankrolling of a lawsuit against the Gawker website by the Silicon Valley figure Peter Thiel has led to a debate encompassing broader themes.

Source: Thiel-Gawker Fight Raises Concerns About Press Freedom – The New York Times


  1. Yeah, maybe. Except…
  2. I’ve been reading the news about Gawker declaring bankruptcy, presumably because of the huge verdict handed by a jury to Hulk Hogan in his invasion of privacy lawsuit.
  3. Gawker’s CEO, Nick Denton, has been saying stuff about Peter Thiel, the PayPal co-founder, who financed Hogan’s lawsuit against Gawker, apparently in vengeance because Gawker let it out that Thiel was gay. Thiel didn’t like that, didn’t want them to. Denton, it seems, ignored Thiel’s request not to print that personal information about him.
  4. Denton, too, is gay, but thoroughly out–which was presumably his personal decision, one he did not grant to Thiel. Denton is also British. The Brits have fierce, not entirely rational, laws against defamation, unlike our laws which are pretty rational.
  5. Again, here’s the Black’s Law Dictionary definition of defamation:

defamation, n. 1. The act of harming the reputation of another by making a false statement to a third person. If the alleged defamation involves a matter of public concern, the plaintiff is constitutionally required to prove both the statement’s falsity and the defendant’s fault. 2. A false written or oral statement that damages another’s reputation.

6. Maybe it’s because our laws are much looser than Britain’s that Denton came to the U.S. to start his gossipy conglomerate. Where, he must have thought, he wouldn’t be sued. At least not so much. Poor baby.

Many who have sued Gawker said it overstepped the boundaries of privacy, slandered reputations or failed to do adequate reporting before posting articles.

Source: For Gawker, Legal Issues Beyond Hogan – The New York Times

7. Thiel, like most politically feckless multi-billionaires, is a Donald Trump supporter and delegate. (A lot of feckless billionaires are “libertarians.” Thiel has, with Trump, gone one step further down the yellow brick road to hell.)

8. And now the New York Times weighs in with another point:

Today’s quiet maneuvering by the ultrawealthy is very different from — and can be more dangerous than — the undisguised views of moguls like William Randolph Hearst.

Source: Behind the Scenes, Billionaires’ Growing Control of News – The New York Times

9. I have a few things to say about all of this.

10. Gawker was found by a jury to be wrong when it invaded Hulk Hogan’s privacy. Peter Thiel’s money did not “buy” that verdict. Despite the common, cynical and angry popular view, money does not buy verdicts. A good case wins verdicts.

11. There are murmurs that perhaps Thiel has no legal or ethical right to finance lawsuits. I am not a lawyer but I am full to the brim with common legal sense and it makes no legal sense to me that anyone can be barred from supporting a lawsuit. What law is he breaking? Lawyers can’t give money directly to their clients during a contingency lawsuit, even though their clients might need the money. There are good reasons for this ethical rule, but Thiel isn’t Hogan’s lawyer.

12. And another point to make: Thiel may feel furious at Denton for exposing him as gay, but remember Thiel did not sue Gawker for invasion of privacy or defamation. I can only assume it’s because Thiel understood, or was given the expert understanding of lawyers, that what Gawker did to him was not defamation, and probably wouldn’t be considered an invasion of privacy.

13. Even if Thiel hadn’t financed the lawsuit, I’m virtually certain Hulk Hogan would have won. For one thing, this was indubitably a contingency case; that is, it was not financed by Hulk Hogan himself. Its costs were most likely advanced–paid by–Hulk Hogan’s lawyers who will, when the money question is resolved, get their costs back first, and then will get, depending on state laws, around one-third of the final dollar award.

14. Had Hulk Hogan’s lawyers determined that it wasn’t a good case–that is, wouldn’t get enough of an award to make it worth their time and efforts–they wouldn’t have pursued it.

15. The jury award was $140 million. The jury wasn’t bought by Thiel’s money; nor is the jury getting a percentage of the award. As I’ve written about before, huge jury awards are usually appealed and eventually are brought way down. Indeed, Gawker has announced it will be appealing the award. While the appeal is going on, Hogan’s lawyers and Gawker’s lawyer will begin serious negotiations over the final amount. Which, I pretty much guarantee, will not be $140 million.

16. If you doubt me, look at this abstract from the New York Law Journal, which showed up in my inbox after I wrote the above at 15:

Brooklyn Court Slices $11M From Subway Verdict

Andrew Denney, New York Law Journal   

A Brooklyn appeals court has ruled that a $16 million verdict for a woman who was seriously injured by falling down the stairs at a subway station be reduced to $5 million.

17. Given that Gawker is not, despite the suggestion in the media coverage, under immediate pressure to pay Hogan $140 million–see above at 15 and 16, re appealing the verdict and how it will eventually be reduced–I seriously doubt that this verdict, which they haven’t yet paid out, has caused their bankruptcy.

18. Gawker has used this court defeat to strut around whining and posing as a significant news medium which might be destroyed, or at least seriously unconstitutionally suppressed, by the Hulk Hogan verdict. (Unlike the Washington Post, a genuine, serious news medium, which the Trump has accused of “unfair”reportage and has de-credentialed.)

19. Gawker isn’t, in my mind and limited experience, a serious news medium. It’s a collection of deliberately wicked, gossipy online news mags, at least one of which seems to have a mandate that women writers use the word “fuck” as often as they can fit it into sentences. I’m not certain of this but I doubt Gawker has challenged, say, the Times or Mother Jones in producing any major investigative news story that is truly of public concern. (If I’m wrong, let me know.)

20. So although all these stories seem ominous and complicated and bad for First Amendment rights of us individuals and the media, I think not.

21. The Times article about billionaires and press freedoms has shunted off on another track entirely. I didn’t read a lot of outrage from the Times when Rupert Murdoch was permitted to buy the New York Post and, later, the Wall Street Journal, although the Times did report on how it happened that one man was allowed to own several major media outposts in the media capitol of the world. Maybe the Times, as the major genuine newspaper of our world, thought it would be impolite to really dig into the news near-monopoly Murdoch was creating, as I hoped they would.

22. And of course Murdoch already owned Fox, which has a bunch of channels in New York, at least one of which pretends to be a news channel but is actually a video rag for Murdoch’s right wing politics.

23. The man who owns the monster (Amazon) that ate independent bookstores and sort of everything else in our world was allowed to buy the Washington Post. (The same Post now banned from the Trump campaign.)

24. And of course Sheldon Adelson, the Vegas casino magnate who supports Donald Trump, bought the Vegas newspaper that should be responsible for reporting on his doings.

25. And then, finally, there’s this:

Charles J. Harder, who is representing the retired wrestler, demanded a retraction of an article that mentioned his new client, a hair treatment clinic.

Source: Gawker Article on Trump’s Hair Draws Threat From Hulk Hogan’s Lawyer – The New York Times

26. C’mon, guys. That thing above is just one gawk too far.

Boy, that was fun. So much for the restrictive powers of listicles.

I’m going to promise myself never to do anything as long as this again although, as I learned many years ago–and everyone should apply it to political campaigns–a promise is only a statement of intentions.

Let me repeat that:


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