Expert analysis provided by UpCounsel Litigation attorney Seth Wiener.
You would be hard-pressed to find a legal case that has gotten more media attention this summer than the soap opera-style drama that has unfolded between Gawker Media and Terry Bollea – better known as former twelve-time wrestling champion, Hulk Hogan.
The tawdry defamation case, which has come to a head in recent months, dates back to 2012, when Gawker made the regrettable decision to publish video clips that captured Hogan “in flagrante delicto” with his best friend’s wife. The story, posted by Gawker editor A.J. Daulerio, immediately went viral, and attracted millions of hits. It would would also be Gawker’s undoing.
When the wrestler discovered what had happened, he asked the editors to take the videos down. Initially, they refused, only to acquiesce several days later (and only after the story racked up millions of hits). But the damage was done.
Hogan quickly filed a lawsuit against Gawker for invading his privacy and infringing on his personality rights (among other things), and the case began.
Fast forward to this past March, when a jury in Florida awarded Hogan a whopping $140 million in compensatory and punitive damages. The jury found that Gawker had intentionally violated Hogan’s privacy by publishing the videos in the public domain, and was liable for subjecting him to the “embarrassment and humiliation” that resulted from millions of people watching the clips. It also found Gawker’s editor, Nick Denton, and editor Daulerio personally liable and ordered them to pay $10 million and $100,000, respectively. UpCounsel’s Seth Wiener says that the verdict, which bankrupted Gawker, was “shockingly high and beyond the bounds of rationality.”
UpCounsel’s Seth Wiener says that the verdict, which bankrupted Gawker, was “shockingly high and beyond the bounds of rationality.”
Damage awards of this size are frequently reduced or overturned on appeal in cases like this one, as The New York Times points out, and many defamation experts, including UpCounsel California attorney and litigator Seth Wiener, expect the $140 million sum to be reduced in this case as well.
Wiener, a media law authority who has followed the case closely, stated that “the verdict was shockingly high and beyond the bounds of rationality.”
Yet, even if overturned, the verdict will lead to the end of Gawker as we know it and will remain one of the most eye-popping awards in recent history. If that weren’t enough, another layer was added to the case in May, when it was revealed that billionaire Silicon Valley entrepreneur and investor, Peter Thiel, had secretly financed Hogan’s lawsuit. And the PayPal co-founder and early investor in Facebook was no small benefactor, apparently putting up $10 million of his own money in an effort to help take down the media outlet.
Wiener was surprised to learn that Hogan was not able to finance the lawsuit himself, and noted that Thiel’s funding of the lawsuit smacked of champerty.
Thiel reportedly had a bone to pick with Gawker and admitted that he had been waiting for a case like the one Hogan had initiated against the news organization. According to The New York Times, a series of articles on Thiel and his friends that appeared in Gawker’s Valleywag in 2007 had both publicly outed Thiel as gay and “ruined people’s lives for no reason,” he said.
Over the years, Gawker has gained a reputation for trafficking in gossip, rumors and for publishing questionable stories. But to Thiel, it apparently went further than that, as the billionaire said in an interview that he had witnessed Gawker “pioneer a unique and incredibly damaging way of getting attention by bullying people even when there was no connection with public interest.” What if other moguls decide to wield their fortunes as weapons in an effort to bring other media organizations to bankruptcy?
What if other moguls decide to wield their fortunes as weapons in an effort to bring other media organizations to bankruptcy?
While Gawker repeatedly (and unfairly) took shots at Thiel and other Silicon Valley magnates over the years, nonetheless, the fact remains that this may be one of the most glaring examples of a billionaire leaning on his wallet to carry out a personal vendetta against a news organization in history. The stakes have indeed proven to be high, as Hogan’s victory has forced both Gawker and its founder into bankruptcy. Much remains to be determined, though, last week, Gawker officially sold itself to Univision in bankruptcy auction, for $130 million. Ziff Davis and Univision were reportedly the only two bidders. According to Politico, Denton will leave Gawker after the sale closes.
While there’s little doubt that the sites that currently comprise Gawker will continue to live on – whether they remain under the Gawker banner or not – many have argued the outcome of this case could set a dangerous precedent.
Regardless of what one thinks of Gawker or Thiel, there has been substantial anxiety and hand-wringing that has been voiced throughout comment sections and the blogosphere in response to the verdict. Thiel promised “deterrence” of Gawker, and used his own considerable wealth to pursue a vendetta against a news organization, giving fuel to what some believe is a nefarious litigation machine.
While the billionaire investor certainly may have had good reasons for his action, and there’s nothing inherently wrong with his anonymity, the outcome raises an important question: What if other moguls decide to wield their fortunes as weapons in an effort to bring other media organizations to bankruptcy, in the words of The Economist, “simply because they disagree with their politics”?
Furthermore, as Nicholas Lehmann writes in the New Yorker, over the course of the twentieth century, as the press evolved and began to act more as a profession, the Supreme Court “gave it steadily more protection.”
But, as Lehmann asserts, the American press looks a lot different today than it did in the middle of the twentieth century. The group of established, traditional media organizations has grown smaller and smaller over the last decade, and droves of “new media” organizations have emerged to take advantage of the changing landscape, re-defining the role of the press in modern life. Has Hulk Hogan just put a chokehold on the freedom of the press?
Has Hulk Hogan just put a chokehold on the freedom of the press?
In a way, Denton and Gawker stand as telling examples of how the media has evolved, or devolved. As Lehmann contends, the “roguish part of the press” has proliferated in recent years, and much of it, like Denton and Gawker, has been vocal in its contempt for traditional, mainstream media. Unfortunately, however, it seems that the public’s contempt for the press at large has also grown substantially, perhaps in proportion with new media’s growing scorn for old media.
If this is the case, argues Lehmann, then perhaps it invites a “sustained reconsideration” of the protections that the press has long enjoyed under the first amendment. If, as Donald Trump has contended should he become president, that he would “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money,” then perhaps the Gawker verdict is only the first of many similar lawsuits to come.
The American press has long been in a privileged position so far as legal protection goes, but that could be changing, and it could be changing at a time when the press is most unstable and at its most vulnerable, Lehmann says.
Maybe a re-imagining of those protections is needed given the new role of the press in modern American life, or maybe we need to encourage people who have the financial means not to wage a war of legal attrition against the press, but to fight speech with speech, words with words, and engage them in vigorous debate. Maybe instead of firing shots at the press through proxy litigation, it might be more beneficial to our country and to democracy to battle rogue journalists or media outlets in the court of public opinion.
What do you think? Has Hulk Hogan just put a chokehold on the freedom of the press?
And on that note, will Denton tap out, or if his defense team were to call this key witness to the stand, would it be case closed?