Jeffrey Toobin, a lawyer who writes on legal issues for The New Yorker and other publications, here discusses the clear and present danger to freedom of the press in the new era of Donald Trump.
His article centers on a lawsuit filed by the wrestler Hulk Hogan against a website called Gawker, which posted video of Hogan having sex with his best friend’s wife. The jury awarded Hogan $140 million and Gawker was driven out of business.
The lawsuit was (at the time) secretly funded by Peter Thiel, a tech billionaire who supported Trump in the election. He was angry at Gawker for publicizing the fact that he is gay.
Toobin writes:
Since the nineteen-sixties, a series of Supreme Court precedents, most of them involving newspapers, have made libel cases very difficult to win, in part because plaintiffs bear the burden of proving that the stories about them are false. In these cases, the Court came close to saying, but never quite said, that publication of the truth was always protected by the First Amendment. But, in an age when Internet publishers can, with a few clicks, distribute revenge porn, medical records, and sex tapes—all of it truthful and accurate—courts are having second thoughts about guaranteeing First Amendment protection. Hulk Hogan conceded that Gawker’s story about him was true, yet he still won a vast judgment and, not incidentally, drove the Web site out of business. The prospect of liability, perhaps existential in nature, for true stories presents a chilling risk for those who rely on the First Amendment.
The Hogan case had another dimension that was equally ominous for media organizations. The courtroom battle took place as Donald Trump’s candidacy for President was accelerating, and it drew on some of the same political forces. Although for years Hogan had honed an image of himself as a lovably egomaniacal celebrity, his Tampa lawyers successfully presented him as a rugged Everyman who was victimized by a group of privileged snobs. On the campaign trail, Trump turned contempt for the media into a central part of his quest for the Presidency. At rallies, he used the people inside the penned press enclosures as foils and targets. Pointing to the journalists, Trump would call them “disgusting reporters,” “horrible people,” and “scum.” As President-elect, he has used his platform and his Twitter feed to tap a deep reservoir of cultural resentment against, among others, flag burners, the cast of “Hamilton,” and the staff of the Times.
There are many fascinating and salacious details to this story. You will have to read it for yourself. But here are the non-salacious parts:
Thiel became a billionaire as an early investor in Facebook and Paypal, but, as Valleywag gleefully recounted, his subsequent business ventures were less successful. “a facebook billionaire’s big dumb failure,” read one headline, referring to the fate of a hedge fund he founded. Valleywag also mocked Thiel’s politics (“facebook backer wishes women couldn’t vote”) and his passion for “seasteading,” in which wealthy exiles would set up sovereign communities on ships, where they would be free from taxes or government regulation. Finally, in 2007, Gawker published a post, ostensibly about discrimination in the venture-capital industry, with the headline “peter thiel is totally gay, people.” His sexual orientation may have been well known in the Silicon Valley business community, but Thiel had never disclosed it to the public. All of this, predictably, enraged him. (Denton, who is gay, has stood by the post.)
By 2016, Thiel had become Trump’s most outspoken supporter in the tech community, and it is through him that the nexus between the Trump campaign and the Hogan lawsuit becomes clearest. Thiel’s politics are heterodox, but he shares with the President-elect an aversion to regulation and taxes and a skepticism about free trade. Temperamentally, both men have a vindictive spirit toward their enemies and a willingness to spend money to punish them. For this reason, after Charles Harder filed his lawsuits against Gawker, Thiel, through an intermediary, reached out to him and offered to pay Hogan’s legal fees, as long as Thiel’s involvement was not disclosed. “One of the striking things is that if you’re middle class, if you’re upper middle class, if you’re a single-digit millionaire like Hulk Hogan, you have no effective access to a legal system,” Thiel said recently, at the National Press Club.
Apparently, Hogan’s best friend supplied the sex tape to Gawker, and Hogan sued him and gained the copyright. That enabled him to sue Gawker for violation of his copyright.
As Harder [Hogan’s lawyer] and others have pointed out, Thiel had the legal right to pay Hogan’s legal fees. “I could have done the case on a contingency,” Harder told me. “It happens all the time. I could have gone to a litigation-financing company. That happens all the time, too. Hulk Hogan could have paid for it out of pocket. Or a rich relative could have paid for it. If I had done it pro bono, would that have been wrong? Or a public-interest organization that believes in privacy could have paid for it. There are lots of different scenarios. The law is very clear that what he did is entirely legal and ethical.” Harder declined to say when he found out that it was Thiel who was paying the bills or how much Thiel invested in the case, other than to stipulate that the trial cost less than ten million dollars. Thiel first disclosed his involvement in an interview with Forbes, earlier this year.
It might have been permissible, but Thiel was a billionaire paying to put a publication out of business. He later acknowledged that he financed the case not because he wanted Hogan to be compensated for harm he suffered but, rather, to punish Gawker. “This is not about the First Amendment,” Thiel said at the Press Club. “It is about the most egregious violation of privacy imaginable. Publishing a sex tape, surreptitiously, done in the privacy of someone’s bedroom, and to hide behind the First Amendment, behind journalism—that is an insult to journalists.”
The key issue in a right-to-privacy lawsuit like Hogan’s is whether the published material should be treated as news. “In the past, there was a tendency in courts to defer to the press on what’s newsworthy,” Amy Gajda, the author of “The First Amendment Bubble,” told me. In 1975, a man named Oliver Sipple saved President Gerald Ford from an assassination attempt in San Francisco. In the course of celebrating Sipple’s heroism, the San Francisco Chronicle revealed that he was gay. Sipple sued the paper for invading his privacy, but he lost the case, because the courts regarded his background as newsworthy. In a similar vein, the Supreme Court in 2001 ruled that a radio commentator could not be held liable for broadcasting a telephone conversation that had been illegally recorded by a third party. Justice John Paul Stevens’s opinion acknowledged that the Court had repeatedly refused “to answer categorically whether truthful publication may ever be punished consistent with the First Amendment,” but in this case, at least, making the commentator liable would threaten “the core purposes of the First Amendment because it imposes sanctions on the publication of truthful information of public concern.”
This kind of deference to journalistic judgment about what constitutes “truthful information of public concern” may be a vestige of a more orderly period in journalistic history….
The clearest winner in the Hogan case has been Charles Harder, who has become the de-facto general counsel for the Trump backlash against the press. On behalf of Melania Trump, Harder filed a libel suit in Maryland against the American Web site of London’s Daily Mail, which reported that she had once worked as an escort. (The Mail withdrew the story, but the case is still pending.) Again on behalf of Melania Trump, Harder demanded the withdrawal of a YouTube video asserting that her son Barron Trump was autistic. (The creator took down the video and apologized.) Harder also represents Roger Ailes, the former president of Fox News and sometime Trump adviser, who resigned earlier this year in a sexual-harassment scandal. On behalf of Ailes, Harder wrote to New York, which had run several pieces critical of Ailes, asking that the publication preserve all records relating to Ailes and his wife, Elizabeth; this kind of request is often a prelude to a lawsuit, though none has been filed. (Harder did not specify errors in any pieces.) Harder recently settled two other cases against Gawker, both apparently financed by Thiel.
Like Trump, Harder consumes news avidly, if critically. “I’m pro press,” he told me. “I’m pro responsible press.” Like Thiel, Harder celebrates not just the victory of his client but the extinction of his opponent. “Gawker did a lot of bad things,” he told me. “I think that they’re not doing bad things anymore. Their modus operandi was character assassination. The fact that they are not doing it anymore doesn’t bother me.”
For decades, the news media benefitted from the deference paid by courts to the judgments of newspaper editors. The judge in federal court treated Gawker’s editors as if they were running a newspaper, and he declined to second-guess them about what constitutes the news. The jury in state court did the opposite. The question now is whether the law, instead of treating every publication as a newspaper, will start to treat all publications as Web sites—with the same skepticism and hostility displayed by the jury in Tampa. The new President and his fellow-billionaires, like Thiel, will certainly welcome a legal environment that is less forgiving of media organizations. Trump’s victory, along with Hulk Hogan’s, suggests that the public may well take their side, too. ♦
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