On the Media published a nearly hour-long podcast today entitled “Imagine That.” Part of the episode focuses on the increasing threat to First Amendment media protections via ‘weaponized’ litigation in the form of libel suits such as Peter Thiel’s funding of the Hulk Hogan case against Gawker Media.
You can listen to the episode yourself by clicking here. It’s the very first episode at the top of the page. The portion in question begins at 20:08 and concludes at 28:31.
This is something I’ve talked about on CLT before — that Thiel’s tactics set a dangerous precedent for press freedoms going forward, especially considering there are near countless examples of our president-elect’s disdain for the media on the record already.
I know we have a few lawyer types here who have argued that third-party funding of litigation isn’t a new, or even a particularly scandalous practice, but my argument has always been that just because there is a legal avenue for doing something doesn’t necessarily make it an ethical one, or that we shouldn’t be concerned.
And in this case, however, there is an aspect of the Hogan case that is new. It’s something On the Media guest and New York Times Magazine journalist Emily Bazelon discussed with host Bob Garfield.
“This idea of using the law as a weapon to go after a publication and to try to kill it, that’s a pretty new phenomenon. It’s a kind of weaponizing of litigation,” Bazelon said.
“What protection do news organizations have against this kind of suit whose goal is merely to inflict the economic punishment of litigation?” Garfield then asked.
Bazelon explained the real point of such litigation is to slowly bleed your opponent dry financially. “It’s quite hard — as a plaintiff suing the press — to win a libel suit, but it’s not hard to get into court,” she said.
But even if it’s particularly easy to get into court here in the U.S., there are still some additional protections in place throughout much of the country, she explained. So-called ‘anti-slap’ laws exist in more than two dozen states that enable the courts to recognize a frivolous lawsuit for what it is and toss it out before too much financial damage is done or too much time is wasted.
Gawker Media covered this aspect of the story themselves in real time. “The suit against Gawker was in Florida, and there are no ‘anti-slap laws’ there,” Bazelon said. Despite an initial ruling by a federal court which found Gawker’s story to be “in conjunction with the news reporting function,” Hogan was allowed to refile, which he did — in a Florida state court.
As we all know, Gawker lost that case, then won an appeal, then lost again, ultimately ending with both Nick Denton and Gawker Media Group each declaring bankruptcy. Thiel had achieved his goal. He did more than decimate Gawker, he obliterated it.
I’m tempted to offer metaphors to illustrate exactly how unprecedented and shocking Thiel’s decision was to create and implement a nuclear option using existing legal tactics in novel ways, but I fear it would just serve as a distraction.
I’ve said it before and I’ll say it again: press freedoms, though enshrined in our very constitution, are a lot more fragile than people realize. But they are absolutely essential to maintaining ours as a free society. Those precious freedoms are about to come under heavy assault in the coming years and that scares me. Very much so.
Emily Bazelon concluded the segment with a call to arms aimed at her fellow journalists. “What we need is a press that is not cowed and is not supine,” she said.
I hope we in the media step up.