Nick Denton sent a memo to the writers to pack up their belongings, as Gawker is gone. It was sold at bankruptcy auction to Univision for $135 million because a local judge, Pamela Campbell, vacated the stay of execution of judgment pending appeal after finding that Denton lied about the value of his stock in Gawker.
Denton’s 30% share failed to suffice to secure the $140 million judgment awarded by a local jury for damages to Terry Bollea, the alter ego of Hulk Hogan. The judge had previously refused to reduce the verdict as excessive. At this point, there was little left to do. Even though it was learned after trial that Bollea’s litigation was being financed by Paypal billionaire Peter Thiel, that fact, without more, didn’t alter the calculus.
There are three things that have made it impossible for most people to view what happened here with a rational, detached perspective. The first is hatred, whether toward Gawker and Denton, for what they did to Bollea which most people find distasteful at best, disgusting and inexcusable at worst, or outing Thiel as gay, which gave rise to his secretly funding this and other suits against Gawker as revenge.
It’s in vogue to give vent to emotion, so there’s no shame in letting feelings get in the way of reason. If anything, the rational voice is the outlier, under attack by the angry mob. And Gawker and Denton have done everything possible to generate the angry mob. If it’s right for emotions to prevail, then perhaps Denton earned the mob’s ire. And if not Denton, then certainly former editor A.J. Daulerio, for whom saying outrageously stupid stuff is a way of life.
The second is a limited, or more likely highly selective, view of the facts and circumstances surrounding the case. That this claim had failed twice in federal court because of the First Amendment is relatively unknown. Most litigants would have folded up their tent, having been twice crushed by federal judges holding that their suit failed to survive First Amendment scrutiny. But not Bollea, who had Thiel’s support and money behind him.
Instead, Hulk Hogan started anew, this time forum shopping the case to his local state court, where the judge would be cooperative and the jury would be comprised of fans. Bollea was loved locally, and these were his people. It was smart move to take the case to friends. And he was rewarded with Judge Campbell’s order denying summary judgment without explanation, putting legal issues into the hands of twelve locals, who awarded him an amount of money so ridiculously astronomical as to shock the conscience, had these litigants been anyone other than Hulk Hogan and Gawker. And the same judge who allowed Terry Bollea to ignore one of the most basic courtroom norms, no head wear, upheld it all.
There is no rational lawyer who wouldn’t take the bet that this would be reversed on appeal. If not the denial of summary judgment on First Amendment grounds, then certainly reduction of the damage award.
Third is the legal ignorance that’s been perpetrated by those with an ax to grind, and those who just feel like exercising their internet prerogative to expound on things about which they know nothing. Put aside every idea you have about what the law should be, every fact you feel must be emphasized and every drop of vitriol toward Gawker. The questions should be answered on appeal, one way or the other.
But there will be no appeal. There’s nothing left to appeal. Gawker is gone.
Although the characterization is trite, this could be called a perfect storm of First Amendment failure. To their credit, Thiel and Bollea accomplished their goal, to destroy Gawker and make a boatload of money from the suit. Thiel sought to portray himself as a great humanitarian, strumming the heartstrings of those who shared a billionaire’s butthurt. Bollea was smart enough to keep his head down since the verdict. Media, large and small, has tried to figure out what all this means.
To some extent, this case is a roadmap to circumvent the First Amendment. Find a local judge willing to just say no, put it in the hands of a friendly jury inclined to award millions, and you too can own a fairly big media outlet. When it’s the little guy against big media, the latter usually owns the road and can crush the resources of the little guy. It’s good to have a billionaire to bring the playing field past level to tilt in the little guy’s favor.
When the media is the little guy, say a lone blogger with an unprofit (as opposed to non-profit) blog, the cost of defense will most likely mean he will walk away from a better financed challenge, unless the jurisdiction has a strong Anti-SLAPP law in place.
Thiel isn’t the only wealthy individual who sought to take down his media adversary. Wealthy people are often targets of undesired media attention, and often believe their money and might is reason enough for the media to cave to their demands. Before, most well-financed media would tell the rich guy to get lost, confident in their knowledge that the First Amendment would protect them. At the very least, they would have their day in court before an impartial judge to make their case.
Now, there is doubt. Where once media was bold, now media is reluctant. Even if they win against the Peter Thiels, they don’t want to go through the local judge’s flippant “denied,” the jury awarding $140 million against them and potential ruin. Right or wrong, they don’t need the aggravation and expense, and so they may heed the cold wind blowing onto their keyboards and be chilled from posting that controversial story.
Most of you won’t see this as a problem. Your grasp of the First Amendment has been bastardized beyond repair from the constant barrage of empty platitudes, like the infamous “you can’t yell fire in a crowded theater” trope. It’s not your fault that you are First Amendment morons; you’ve been played by forces trying to manipulate your sympathies. You never stood a chance.
Gawker is gone, but with it goes the good as well as the bad. Gawker is gone, but so too is a little slice of the New York Times, whose battle with General Westmoreland might never have been fought to the end had it happened today. Some in the media, upon learning of Gawker’s demise, reversed their hatred of its sleaziness and praised Denton for the stories he broke, the real news Gawker broke first.
The good is gone too. Not just the good that Gawker did, but the good you will never know about, the good that didn’t appear in the New York Times or NPR, or Slate, Vox, Salon, Ars Technica or SJ. Name your favorite flavor. You will never know what editorial decisions are made to not publish something to avoid being Gawkered.
That may be fine with you, but (and I say this to every individual who reads this), you are not the free speech god who decides where the line is drawn for everyone else. Your mother lied to you. Your feelings are not conclusive. Only the feelings of twelve locals matter now, whoever they turn out to be.
Epilogue: A curious by-product of bankruptcy is that while Univision now owns Gawker, it’s content, its desks, its intellectual property, it’s pens, assuming they have pens, it doesn’t own its people. If some guy, let’s call him Nick Benton, was to start a new online media business, let’s call it “Hawker,” and offer jobs to the writers who once worked for Gawker, and they accepted those jobs and wrote posts to appear on a new website, there doesn’t appear to be anything that Hulk Hogan or Peter Thiel could do to stop him.