By: Ken Sawdon

Gawker.com announced their bankruptcy, and the end to their content creation, effective Aug. 22. This was celebrated by many people, but the reasons for their dissolution are worth understanding. Gawker.com lost a high profile, and high cost, privacy lawsuit, and some are concerned that this signals a problem with censorship and free speech in the U.S. legal system.

If you aren’t aware of Gawker.com, they were an aptly named “clickbait” and a yellow journalism website, which had been controversial in their ethics and coverage of various stories. At the same time, the writers at Gawker.com had brought attention to some important newsworthy issues and received significant praise. In 2009, Adweek named Gawker.com the blog of the decade, calling them a “template of what a blog should be.” They innovated the future of blogging and journalism by preferring succinct and sharp opinions to citing experts, focusing on pageviews to keep themselves profitable, and through “the decision to treat every subject, known or unknown, in public or private situations, with the fascinated ill will that tabloid magazines have for their subjects,” according to N+1 magazine. The writers were unabashedly irreverent toward their subjects, whether they were punching up at authority figures or just swinging wildly. It is an odd organization: one that simultaneously deserves praise for a few important actions, while also being rightfully vilified for their general treatment of people.

Gawker.com was the flagship of Gawker Media, with subsidiaries and subsites including Jezebel, Gizmodo, Kotaku and io9.

The current case that led to Gawker.com’s destruction is a case of privacy violation brought against the company from professional wrestling star Hulk Hogan (real name Terry Bollea), and financed by Peter Thiel. “Bollea v. Gawker” is a case that began in late 2012 when Gawker.com published an excerpt from a 2006 tape (created unknown to Bollea) between Bollea and a married woman during consensual sex.

“Bollea’s claims included invasion of privacy, infringement of personality rights, and intentional infliction of emotional distress … while Gawker’s lawyers asserted that the case could hurt freedom of the press in the United States,” according to Wikipedia.

In March 2016, a jury awarded Bollea $140 million in compensatory and punitive damages, and soon after Gawker Media filed for Chapter 11 bankruptcy.

It is important to know that Thiel, the case’s financier, has a serious dislike of Gawker.com, mostly because they revealed that he was gay in 2007. Thiel has paid around $10 million to finance several lawsuits against Gawker Media. He has also donated to and supported the press generally, but he’s very critical of gossip and tabloid journalism that, he says, involves “massive privacy violations.”

The insightful Ken White, lawyer and primary blogger behind Popehat, has written about the case for both the Los Angeles Times and Popehat:

Spite arose from partisan hostility to Gawker’s reliably left-of-center sensibilities. It was also a reaction to Gawker’s routine degradation of its targets, and to how sharply that behavior contrasts with Gawker’s progressive pieties. Gawker Media attacks anti-gay politicians and celebrates advances in gay rights. At the same time, its writers smugly and self-righteously out gay men. Recently, Gawker transmuted blackmail into clicks when it participated in a male escort’s extortion of a married executive from a rival media empire. Gawker also champions feminist values, particularly through its site Jezebel, even as it humiliates women for traffic. Gawker paid a young man to describe a sexual encounter with a candidate for U.S. Senate, including critique of her pubic hair, because Gawker didn’t like her politics. A reliable critic of objectifying women out of one side of its mouth, Gawker publishes hacked and leaked nudes out of the other. Gawker offers nihilistic hypocrisy as clickbait.

…

So, yes, Gawker got what was coming in a karmic sense. Nevertheless, when a jury verdict bankrupts a media company for what it has published, we ought to examine meticulously whether the company received due process, whether the court applied the correct 1st Amendment principles, whether the verdict was based on mere antipathy rather than law and fact, and whether the damages are proportionate to the alleged wrongdoing.

…

The scary part of the story isn’t that the occasional vengeful billionaire might break the system and overwhelm even a well-funded target with money. Such people exist, but getting sued by them is like getting hit by lightning. No, for most of us the scary part of the story is that our legal system is generally receptive to people abusing it to suppress speech. Money helps do that, but it’s not necessary to do it. A hand-to-mouth lunatic with a dishonest contingency lawyer can ruin you and suppress your speech nearly as easily as a billionaire. Will you prevail against a malicious and frivolous defamation suit? Perhaps sooner if you’re lucky enough to be in a state with a good anti-SLAPP statute. Or perhaps years later. Will you be one of the lucky handful who get pro bono help? Or will you be like almost everyone else, who has to spend tens or hundreds of thousands of dollars to protect your right to speak, or else abandon your right to speak because you can’t afford to defend it?

I believe White is entirely correct to be critical of this case. It is unacceptable that journalists can be shut down from reporting because all of their time, energy and money is spent protecting themselves in court. This is the case in any industry: A plaintiff can bleed a defendant out by pushing case after case against them.

But, I also think White has failed to discuss the occasional, and legitimate, conflict between free speech and the right to privacy, as well as the history of yellow journalism in the United States.

Yellow, or sensationalist, journalism has a long and influential history in America, and it has been very important to the creation of privacy laws.

“However, with the advent of yellow journalism in the last quarter of the nineteenth century, the idea that the government should step in and address the issue of privacy began to take root,” wrote Marybeth Gaudette in “Playing Fair with the Right To Privacy.”

Samuel Warren and Louis Brandeis wrote “The Right to Privacy” as a response to the rise in this sort of tabloid and gossip journalism. They noted that “the press is overstepping in every direction the obvious bounds of propriety and of decency,” and condemned the industry of insignificant and petty journalism. “The Right to Privacy” quickly received strong reception and was influential in the creation of privacy rights over time.

I believe myself to be a defender of intellectual freedom and freedom of the press, and I’m honestly not happy with the loss of Gawker.com — a site I was not even a casual visitor of. But, Gawker.com and their journalistic style was unrepentantly yellow, and they swung in every direction with no discretion. Their ethics had absolutely no interest in the right to privacy. I do enjoy this in some ways: They show that it is not only the politicians or celebrities on high that commit humiliating acts, but these acts are a normal thing that many people do. I find myself, like many, conflicted about the outcome of the case. That it may set a precedent, or may be a symptom of a systemic issue, is of concern.

The Freedom of the Press foundation has posed some questions to the people that celebrate Gawker.com’s demise:

• Does it give you pause that, even if the Hogan post was offensive and should never have been published, that a federal judge and federal appeals court both ruled prior to the jury verdict that the post was likely “newsworthy” and protected by the First Amendment?
• If you think “but Gawker outed Peter Thiel in 2007 and they posted other distasteful stories over the years too,” do you also think they should be punished for those posts in the court of law, even if they are considered protected speech?
• Do you agree with the variety of other lawsuits and legal threats that Gawker has endured from Peter Thiel’s lawyer that have nothing to do with the Hulk Hogan tape? Does it matter that those are garden variety libel suits that any first year law student can tell you are clearly protected by the First Amendment? Those cost Gawker millions in legal fees as well. If the Hogan suit failed, what if Gawker died by a thousand cuts instead, despite clearly being protected by the First Amendment?
• Do you think that because Gawker’s demise is something you agree with that the same thing won’t happen to newspapers you like in the future? Donald Trump has readily admitted to suing a former New York Times reporter – knowing he would lose – just to try to bleed him of money. Mother Jones spent millions in legal fees just to win a case against a vindictive billionaire in the early stages of litigation last year, only to see the billionaire turn around and start a million dollar fund for other people to sue members of the “liberal press.”
• Do you think it’s fair and just that more than a half dozen individual reporters are still being sued by Peter Thiel’s lawyer in those non-Hogan related cases, and that Thiel’s legal team is attempting to prevent Gawker paying for the legal defense of those individuals as well? Should individual reporters face serious threat of bankruptcy for posts their employer assigned, sanctioned and published (and again, are protected by the First Amendment)?

Gawker Media has been sold to Univision Communications, and all blogs and websites except Gawker.com are planned to be continued.

Journalists’ professional defensiveness and navel-gazing (introspection) rivals that of even library workers’. There are no shortage of news articles about the demise of Gawker.com, and I am unable to list all of the articles I have read and would recommend here. More information, especially concerning Bollea and Thiel, can be found elsewhere online. Also, please feel free to reach out to me.

Finally, to all the amazing OIFamaniacs: Say your policies, give your all, and you will never go wrong.

 

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Ken Sawdon is a Footage Curation and Metadata Specialist at Dissolve Ltd., a startup stock footage and photo company. He is a recent MLIS graduate from the University of Alberta, where his activities included co-chair of the Forum for Information Professionals student conference and community activist and blogger for the Future Librarians for Intellectual Freedom. He has been a volunteer librarian for the Aero Space Museum of Calgary as well as a Collections Assistant at Fort Calgary. He loves wading through policy and legislation, especially intellectual property issues and professional association rhetoric. You can find and connect with him at @kainous on Twitter.