Saturday, 11 June 2016

Gawker: $140M Judgement Stands; Bankruptcy, Auction To Follow

Gawker under the magnifying glass
After some considerable debate about privacy and freedom of the press I've come to the conclusion that whatever way you cut the freedom cake, the one with the knife gets the biggest slice every time. This is because activist litigator Peter Thiel has finally got what he wanted: gossip blog Gawker has been brought to its knees. What does this mean for privacy and freedom of the press?

Is it dead?

This is the statement posted yesterday:

Executives at Gawker Media told employees today that the company has filed for Chapter 11 bankruptcy due to Silicon Valley billionaire Peter Thiel’s third-party funding of several lawsuits against the company. This plan will allow Gawker to continue functioning, but will require selling the company to another entity. - Gawker Media Is Filing For Chapter 11 Bankruptcy, Will Be Put Up For Sale, by J.K. Trotter for Gawker

Gawker isn't dead, it's on life support, assuming that its new buyer will take on the risk of a Gawker reporter annoying another rich man. They won't be liable for the debt; that will be discharged by the sale. Meanwhile it's business as usual until the sales of the company's assets have been completed.

What harm did it do?

As lawyer Marc Randazza's post on privacy on CNN pointed out, the ultimate morality of shuttering a media outlet that annoys you is orthogonal to the fact that if the mob gets all riled up they will go for their pitchforks, First Amendment be damned. Ultimately, it's not really Peter Thiel who pulled down Gawker, it's the jury that awarded Terry Bollea enough money to bankrupt it and the judges that approved and enforced it.

Juror Salina Stevens, 35, said watching the video strengthened her resolve to find in favor of protecting Hogan's privacy.

Stevens said she believes in First Amendment rights, but "we also have privacy laws, and I hope those will be taken into more consideration." - Gawker, publisher slapped with punitive damages over Hulk Hogan sex tape, by Letitia Stein for Reuters

There's more to it than that, I'm sure. America finds it hard to forgive those who pants its heroes, and Hogan is one of them. That said, his former employers have fallen out with him:

...the WWE has not only terminated their contract with Hogan for his damning words, but it’s also completely removed him from many areas of its website. ...the WWE apparently wants to make it look like they’ve never had anything to do with Hogan, even removing him from their Hall of Fame listing. - Hulk Hogan Fired From WWE Over Racist Comments, Read Them Here by Nick Venable for CinemaBlend

A restaurant in Tampa, Florida, themed around Hulk Hogan has been sold off; the owners say it's nothing to do with Hogan, they're just responding to the market, but Terry Bollea had licensed the Hulk Hogan brand to them so he has lost an income stream.

Hulk didn't exactly help himself

Searching "Hulk Hogan -Gawker" brings up spats with other public figures, pointing and whispering about his racism, and ...a possible bid for running mate-hood alongside Donald Trump?! I would LOL hard if Trump said something on the order of, "No thanks, bud. The things you come out with! Dial it back, will you?"

Searching "Hulk Hogan sex -Gawker -tape" brings up some lurid accusations that include incest, open marriage with former wife Linda, and gay goings-on. In between those posts are panegyrics to "the Hulkster." The main takeaway is that if Gawker hadn't posted this stuff someone else would have and many of them are downright sleazy. That being the case, what harm did Gawker really do if most of the reputational harm being done to Hulk Hogan was being done by the man himself and reported on by other outlets? I mean, the sexual shenanigans and racist rants were around long before Gawker reported on them.

This was Peter Thiel V Gawker

If the conclusions I've come to are correct, based as they are on cursory searches prompted by comments made by people on both sides of the litigation — and interested bystanders — this situation is exactly as some people have called it: Peter Thiel V Gawker with privacy as a red herring and litigation as a pan to fry it in. Assume that's true: let's take a look at the post that kicked this off, the one where gay columnist Owen Thomas outs Thiel Peter Tatchell-style and for the same reasons.

We know about his mansion (he rents it — clever!), his butler, his early-morning jogs. But what no one ever says out loud: Thiel is gay. - Peter Thiel is totally gay, people, by Owen Thomas for Gawker.

That Thiel's sexual orientation was whispered about in the Valley doesn't mean he was completely out and per the article it might have posed a financial risk. 

They [venture capitalists] instinctively prefer entrepreneurs who remind them of themselves. At best, it's a wrongheaded sense of caution. At worst, it's prejudice with a handy alibi.

This is what Marc Randazza was talking about in his article: Thiel wasn't ready to come out yet. Gawker forced the issue.

Gawker V Thiel

Gawker presents Thiel's subsequent vendetta against it as high-handed Valley plutocratic arrogance; the lord is displeased with the peasants and has ordered a whipping. But that's not the whole story, is it? Gawker's Owen Thomas deliberately set out to utilise Thiel's sexual orientation to advance his gay rights agenda and was totally upfront about this in his post. This calls to mind the disturbing attitude I called out in my post Where Does Privacy End And Free Speech Begin?

The world is complicated, messy, imperfect, and contradictory, and if we want our celebrities to function as progressive forces, then they must be as well. - How the No-Kids Paparazzi Policy Could Change Celebrity Gossip - Pacific Standard

This was all about Gawker making "their" celebrity function as a progressive force even though his politics are the polar opposite thereof.  In fact, most of the posts in which they complain about him are about his libertarian/alt-right politics. This was about Thiel seizing back his agency; the only function he will accept is what he chooses for himself.

What of the First Amendment?

Okay, let's talk about this. I already did, if you scroll down through the tweets; if someone is trying to use a media outlet to utilise your predilections to advance their social justice agenda, does that activity deserve First Amendment protections? Per Mike Masnick in Techdirt, that's a red herring:

First of all, that kind of thinking is dangerous in its own right. It's the kind of thinking that wipes out the First Amendment because some people can come up with excuses for killing off just about any kind of content, as long as you say, "Well, that's okay, it's just shutting down content that is mean." The issue with the First Amendment and free expression is that the whole reason we have it is to protect content we don't like. Because someday someone's not going to like something you said either. - Hulk Hogan's $115 Million Win Against Gawker Raises Serious First Amendment Questions, by Mike Masnick for Techdirt

Like it or not, says Mike, the chilling effect of pushing privacy means less investigative reporting for fear of being dinged for sticking your nose in where it don't belong. Fair enough, but can we really say, in the same breath, that it's unreasonable to trade privacy for security, then say it's entirely reasonable to trade privacy for freedom of speech on principle?

Is privacy worth protecting?

Privacy either has value or it doesn't. It's either a right or it's not. And either everyone has the right to privacy or it's restricted to a lucky, privileged few because ______.

People either have the right to set their own agendas or they don't. They have either got the right to right to own themselves or they don't. And this either applies to everyone or it doesn't. And if it doesn't, to whom does it apply or not? Is it okay to use someone's private activities to advance your agenda, however noble it is, even if they're famous and stuff?

Each of these two issues have run slap bang into the First Amendment, which we don't have here in Britain but which is held up as the example of what free speech ought to be in all its pomp and glory. The right to free speech is being eroded over here; basically, being a gimp in public is illegal. Writing blog posts against right wing political parties can bring the police to your door. This is coming America's way because the authoritarianism that underpins this legislation is shared by the plutocrats who run our respective countries. It's contagious, and as political discourse shifts rightwards you'll find the hoi polloi picking it up, hence the bankruptcy-inducing award to Terry Bollea/Hulk Hogan.

What about the media?

This case has got far-reaching implications beyond "Rich man eviscerates Gawker for posting personally embarrassing information about him." It's forcing us to ask what journalism really means; what is within that remit and what is verboten. Even responsible journalism can get you into trouble if you dare to question the surveillance status quo.

Who, then, should decide what is newsworthy and what is or isn't in the public interest? Let's be honest here, we dug ourselves into that hole. The biggest-selling newspapers in Britain today are The Sun and the Daily Mail, neither of which are known for hard-hitting journalism or highbrow content. In fact, both publications serve up a menu of sensationalism and celebrities. So, then, the answer to the question is "the editor" and "the punters." If punters are unlikely to purchase the paper because they think it's boring, the editor will reject the story. If it bleeds, it leads, etc. As overall circulation has declined newspapers have found themselves pandering to increasingly lower common denominators to sell copies.

The bottom line is, until audiences change their attitudes and start subscribing to the Guardian or the Independent in greater numbers, expect the tug-o-war between privacy and freedom of speech to continue. We can expect the likes of Peter Thiel to drive over them with a litigation tank to teach the rest of them a lesson when they step out of line. Don't be too surprised to see legislation being brought in which ultimately block journalists from holding the powerful to account using privacy as an excuse. Ultimately, this is a demand-side issue and until our attitudes change the situation won't.

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