Gawker Gone, A Eulogy

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.

26 thoughts on “Gawker Gone, A Eulogy

  1. B. McLeod

    Sure, but Nick Benton would need some money to offer jobs to all those writers, and Benton may not be able to find that lying around.

    I don’t see this as a case that will have great impact, because other media participants will see it as an outlier. Gawker is like the person so universally hated that, when he is shot down by a dozen different shooters, on Main Street, in broad daylight, nobody sees anything and nobody cares. It doesn’t mean there is no longer a law against murder, or that most people can’t rely on it. Is this a good foundation for “law”? Of course not. But it reflects a reality of the civil system that most of us have come to know — on the borders of the law, there lies what a creative advocate can get a judge and a jury to do. It may not be the law, but it will be “the law of the case.”

    1. SHG Post author

      I suspect Nick Benton won’t have great difficulty finding an angel. People who have accomplished nothing in their lives get money thrown at them regularly. Someone who has achieved success is a golden boy. He’ll have to chase the money away.

      As for impact, the view from the inside is often very different from the view from the outside. If you were on the inside, you might see it very differently. While failure of the system is hardly unusual, it’s usually one off. You see this as an outlier, but then, you aren’t an editor or publisher. You can afford to be disastrously wrong.

  2. B. McLeod

    “Disastrously wrong” can happen. But of course, as a lawyer, I am accustomed to gambling with other people’s money.

  3. Jim Ryan

    What do you mean, “First Amendment Morons”, I have google and 5 minutes to search. Doesn’t that trump your law degree as well as your decades of experience in law both in and out of the courtroom?

  4. Weebs

    This, of course, is an important reminder that everyone should have an emergency legal plan for what to do if Hulkamania runs wild on you.

          1. Sean

            I can’t imagine the appeal is going to be dropped. There is around $80 million still at stake, which is well worth fighting over.

            According to the bankruptcy filing (which is of course publicly available), Gawker had around $30-$35 million in debt and secured around $22 million in DIP financing. So after the secured debt is paid off (and assuming that they actually drew down the DIP financing on top of the secured debt), there will be around $80 million of the $135 million paid by Univision left to distribute. According to the bankruptcy filing, the second through twentieth largest unsecured creditor are owed a grand total of around $800,000.

            So, if the judgment in favor of Bollea is upheld on appeal, then Bollea will get around 99% of the $80 million available for the rest of the unsecured creditors (which works out to around 60 cents on the dollar for him) and the rest of the secured creditors also get around 60 cents on the dollar. If the judgment is struck down on First Amendment grounds, then those unsecured creditors get paid in full and the shareholders (including Nick Benton and his investors) get the remaining $79 million or so.

            Seems like $79 million (less legal fees) is enough incentive for the creditor committee and the management of the debtor in possession (i,e.Nick Benton) to continue to pursue the appeal.

  5. T. Letter

    When you find yourself standing up for a gang of bullies, scofflaws, and literal blackmailers like Gawker, maybe it’s time to stop, sit down, and think about where your life went so disastrously wrong.

    So Gawker theoretically did some good at some point? That in no way justifies their misdeeds; if they didn’t want to get shut down, maybe they shouldn’t have published a stolen sex tape and then literally laughed at court orders to take it down. Good riddance to bad rubbish.

    1. SHG Post author

      Others have left comments about how they liked Gawker, and I’ve trashed them as this post has nothing to do with whether anyone loved or hated Gawker. Yet here you are, proving the point of the post in every respect. Just as criminal defense lawyers don’t “stand up for” murder by defending the accused, defending the First Amendment isn’t standing up for Gawker. But that’s beyond your (and a great many other puny minds) capacity to grasp.

      This is why our rights won’t be there when we want them, because people like you gave them away when we didn’t. And lack the capacity to grasp why.

      1. T. Letter

        If Denton had murdered someone (instead of just murdering reasoned discussion, good taste, and public discourse) he’d also have trouble exercising his First Amendment rights from his jail cell. That doesn’t make it a violation of the First Amendment to jail him for murder.

  6. losingtrader

    I’ve already checked Google, so that that leaves out SHGism #27…so I’ll just ask , “How does this differ from the federal appellate court’s reduction of Texaco’s bond?

    The appeals court said that Texas bond and lien rules violated Texaco’s Constitutional rights to due process and equal protection under the law.

    ”The undisputed facts indicate that the automatic enforcement of the Texas lien and bond requirements against Texaco’s property to the extent of $12 billion lacks any rational basis, since it would destroy Texaco and render its right to appeal in Texas an exercise in futility,” Judge Mansfield wrote.

    What did I miss? It certainly wasn’t Carl Icahn hilarious 8 minute explanation of the case and settlement talks in a comedy performance at Caroline’s.
    I’ll link only because it’s hilarious, and if you delete it, its still on youtube.

  7. losingtrader

    I think I’ll just go with “the court used a combination of SHGism #43 , which starts out, “Maybe if you spent your time making things that served some useful function…..”

    and #63, ““what the fuck” is not a thoughtful justification for adding more.””
    It’s not that I’m opposed to paying you, but your retainer doesn’t come with an on-board shower suite and unlimited $700 Cognac.


    1. SHG Post author

      Neither does my “failure to use the reply button” fee, which is tied to the market price for ’82 Ch. Petrus,

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