I was asked by a reporter yesterday whether there was any First Amendment scholar who would back up the notion that Hulk Hogan’s lawsuit against Gawker didn’t violate the Free Speech and Press clauses of the Constitution. “Absolutely,” I replied, “but that’s because they’re willing to lie and have an agenda to push.” I was unhelpful.
Now that Peter Thiel has been outed as financier for Terry Bollea, the personality split from the wrestling clown, Hulk Hogan, in his suit against Gawker, the media was hot to trot on litigation financing, a concept that has been around for a while now, even if it hasn’t been on anyone’s front burner. Champerty and maintenance were once illegal. Barretry still is in most places.
Like most things legalish, if one can spin it to one’s advantage, to serve one’s agenda, people deny the downside and promote the virtue of their lie. It’s the American way, the end justifies the means when you like the end. Many who thought poorly of Gawker were happy to suspend the Constitution even though its application was obvious to anyone willing to be honest about the First Amendment.
It turns out that Thiel, who simultaneously supported free press when it was the sort of free press he thought worthy, had mounted a covert war against Gawker for its subsidiary, Valleywag, outing his sexual preference.
He funded a team of lawyers to find and help “victims” of the company’s coverage mount cases against Gawker.
Soliciting “victims” can be barretry, the incitement of lawsuits. But Thiel claims it wasn’t just to do harm to Gawker because his feelings were hurt and he had more than enough money to exact revenge. That would make Thiel appear puny and tawdry.
“It’s less about revenge and more about specific deterrence,” he said on Wednesday in his first interview since his identity was revealed. “I saw Gawker pioneer a unique and incredibly damaging way of getting attention by bullying people even when there was no connection with the public interest.”
Mr. Thiel said that Gawker published articles that were “very painful and paralyzing for people who were targeted.” He said, “I thought it was worth fighting back.”
The trendy buzzwords are in there, “bully,” “painful and paralyzing.” And then there’s the part about “no connection with the public interest,” If you’re rich enough, you not only believe that you’re entitled to determine for a nation what constitutes “the public interest,” but you can put your money behind fleshing out potential “victims” to engage in the lawfare necessary to make it happen.
This was where the need for a “legal expert,” as the media likes to call them, came into play. Between political sympathies and the dubious interest in balance, there was a need for someone to say that Peter Thiel wasn’t just making shit up. There were plenty of academics happy to call bullshit on Thiel, but they were struggling to find anyone with a shiny curriculum vitae willing to step forward too and sell the soft glow of attributed scholarly credibility. Wherever would they find someone so intellectually dishonest, so motivated by their own personal agenda, that they would tag team Thiel’s self-serving and self-righteous spiel? Bingo.
But other legal experts said that the mere fact of Mr. Thiel’s involvement did not change the case. And while there is no legal requirement that underwriters like Mr. Thiel reveal their involvement to the opposing side or the jury, it is considered fair game for lawyers to ask questions about financial backing — something that Gawker Media did on Wednesday in court as part of its efforts to overturn the Hogan judgment.
“If you really do have concerns about the merits of this case, finding out who bankrolled it doesn’t really help you at all,” said Mary Anne Franks, a professor at the University of Miami School of Law. Absent any indication that there is something unlawful about how the funding took place, she said, “you would still need to show that there’s something substantively wrong with the ruling.”
Of course, there’s tons “substantively wrong” with the ruling, which is why two federal judges trashed Bollea’s/Thiel’s efforts before they found a local judge willing to do their bidding. But even though litigation funding isn’t illegal anymore, barretry is a very different story. And then a bunch of new questions were raised, such as whether Terry Bollea was paid to be Thiel’s puppet, his “victim.” Litigation takes time, and wasn’t Hulk Hogan’s time worth money?
The next question raised is whether Bollea’s testimony, bizarre in many respects to worm his way past his own admissions as Hulk Hogan, about his split personality issues was true or the story he was paid to give under oath to make it over the hump? Maybe not, as anyone who desires a career as a clown may well suffer from some infirmity, but that would be the sort of thing the opposing side would be entitled to know. Was someone paying you to lie?
Without revealing an exact figure, he said that estimates of $10 million in expenses so far were “roughly in the ballpark.” He added: “I would underscore that I don’t expect to make any money from this. This is not a business venture.”
He would not say whether he had compensated any of the people, including Mr. Bollea, which could raise questions in an appeal. He insisted “there was no gray area” in what he had done.
If he hadn’t paid Bollea to be his stalking horse, he could easily have cleared that up, even though it was in the media rather than under oath. But he didn’t, and if Thiel says he did it all for the good of mankind, who are we to dispute a billionaire?
Mr. Thiel said he considered his financial backing of the cases against Gawker to be “one of my greater philanthropic things that I’ve done. I think of it in those terms.”
He refused to divulge exactly what other cases he has funded but said, “It’s safe to say this is not the only one.”
If you share Thiel’s agenda, then this is great news, because his vendetta, whether he wins or loses (because the cost of defending will cripple his non-billionaire enemies), will serve to silence voices that fail to satisfy his version of worthwhile speech and press. Mary Anne, who has long advocated for censorship and privacy by writing and speaking incessantly about how the First Amendment must give way to hurt feelings, will be available whenever the media can’t find an honest scholar.
If any crimes or torts were committed along the way, it’s no big deal because their cause of eradicating speech that hurts Thiel’s feelings (and maybe yours, too) is what all the kids want. It’s not that they hate the First Amendment, but that Thiel is betting he can buy his way to being the hero of Free Speech, provided it’s only the speech that people like Thiel and Franks like. And he can afford to build his own statue.
In any case, to destroy a media company, it is not enough that litigation be financed. A court must also find the defendant liable, award damages and have it sustained on appeal. Thus concern about the ability to ruin media companies may in fact be better stated as objections to the nearly unlimited compensatory damages U.S. juries can award.
While it may be correct within the highly limited confines of “destroying” a media company, Kontorovich appears to have no clue of the harm done, and costs imposed, by litigation itself, particularly where the well-financed adversary can sue over and over, in court after court, with straw man victim after straw man victim, or the covert control over litigation, over paying witnesses, over suborning perjury, that can arise from this.
This isn’t to say that this is a reason to eliminate litigation financing or the support of advocacy organizations (though the latter is almost never done in secret), but let’s not make people stupider because academics have no clue what they’re talking about when it comes to real world litigation.