We've already made it quite clear where we stand on Peter Thiel financing
a number of lawsuits against Gawker Media as some sort of retaliation for some articles he didn't like. Lots of people who really hate Gawker don't seem to care how problematic Thiel's actions are, but you should be
concerned, even if you dislike Gawker -- in part, because many of the lawsuits Thiel appears to be backing are clearly bogus
and just designed to bankrupt the company, which happened
a couple months ago.
This week is the auction to see who ends up with Gawker, and Thiel is taking a weird victory lap with a silly and misleading oped in the NY Times where he argues that this was really all about making a stand for privacy
and has nothing to do with shitting on the First Amendment. There's a lot in the article that's bullshit, and it deserves a thorough debunking, so here we go.
First off, positioning himself as a champion of privacy seems laughable. After all, this is the guy who put the first money into both Palantir and Facebook. Palantir, of course, is the datamining operation used by governments and law enforcement around the globe to snoop through various databases and try to find magical connections. Palantir is rumored to be in trouble
lately, in part because its technology isn't that good, and it may have built a multi-billion dollar business on convincing clueless government officials that by sniffing through a variety of databases, it could magically find important "connections." But Palantir is an entire business based on the idea of helping governments undermine citizens' privacy. And then there's Facebook.
As for Facebook, I actually think the company has something of an unfair reputation as a "privacy destroyer," but it is true that the FTC dinged Facebook for a series of "unfair and deceptive practices"
around respecting the privacy wishes of users, and the company is required to go through regular FTC privacy audits for a 20 year period over it. Whether this was due to carelessness or malfeasance (I believe the former, though many believe the latter), Facebook isn't exactly known as a paragon of protecting people's privacy wishes.
Thiel remains on the board of both companies. If he were truly about standing up for people's privacy -- why not start with those two companies?
From there, he talks about the Hulk Hogan lawsuit, Thiel insists that Gawker's editorial decision in publishing a heavily edited clip of a sex tape involving Hogan was "beyond the pale." Personally, I agree. I wouldn't have done it. But there were editorial reasons why Gawker did so, and as I've stated, I have tremendous concerns about juries retroactively determining if editorial decisions were appropriate or not. That seems to go very much against the First Amendment -- as a few courts have already found in the Gawker/Hogan case (though, yes, the judge and jury in the current case disagreed -- but if the case actually makes it to appeal, there's a fairly high likelihood of the original ruling being overturned).
Sure enough, in October 2012 Gawker did something beyond the pale: They published a sex tape without the consent of the people in the video. Unfortunately for Gawker, they had targeted someone who was determined to fight back. Terry Bollea is better known as the wrestler Hulk Hogan, a fact that Gawker claimed justified public access to his private life. Mr. Bollea disagreed. At first he simply requested that Gawker take down the video. But Gawker refused. It was getting millions of page views, and that was making money.
A few things on this. I think that Hogan would have a legitimate legal gripe against whoever filmed
the sex tape, if it were truly done without his knowledge (there's some dispute on this), and possibly with whoever leaked it. But the decision to publish
a few clips from it is protected by the First Amendment. Whatever privacy violation occurred, if there was one, was done by whoever filmed the video.
Second, the reason that Hogan was willing to "fight back" was that he didn't have to pay for the lawsuit, and instead had a vindictive billionaire with an axe to grind to help him finance it. Not only did Hogan reject a supposed $10 million settlement offer from Gawker, his lawyer (who an organization owned by Thiel was paying regularly) deliberately made decisions designed to bankrupt Gawker, including dropping a specific claim to get an insurance company out from covering the lawsuit (which is the opposite of how these things normally work, where plaintiffs want
the insurance company involved in order to get more money).
Third, it's ridiculous to argue that Gawker kept the video up solely because it was making money. I'm sure that was part of the calculation, but it's pretty clear that they kept it up based on the principle of the thing -- which is that we live in a country that values freedom of the press, and you don't back down when someone doesn't like your coverage. It's the same thing we do
when we receive bogus legal threats. We don't keep stories up because of "the clicks" but because we don't give in to bullies demanding we take down stories.
Four years later, the financial calculus has changed. Gawker Media Group has put itself up for sale (bids are due Monday afternoon) in part to satisfy the legal judgment of a unanimous jury that ruled against Gawker and assessed damages of $140 million, proving that there are consequences for violating privacy. Mr. Bollea could not have secured justice without a fight, and he displayed great perseverance. For my part, I am proud to have contributed financial support to his case. I will support him until his final victory — Gawker said it intends to appeal — and I would gladly support someone else in the same position.
Yeah, the calculus has changed due to a deliberate gaming of the judicial system by Thiel. As for Thiel being "proud to have contributed financial support" that's again misleading in the extreme. Thiel specifically had a law firm basically on retainer and told to go searching for lawsuits to bring down Gawker. It was not about "securing justice" for anyone. It was about destroying Gawker.
And it's odd that someone so proud of funding such lawsuits hid that fact for many years until some reporters finally broke the story that he was behind it.
As for the "gladly support someone else in the same position," Thiel has already noted that he's funding other lawsuits against Gawker, and as we've noted, if you look through all of the other lawsuits against Gawker, most of them are absolutely ridiculous
including the patently silly lawsuit by Shiva Ayyadurai
against Gawker for accurately
reporting that Ayyadurai did not invent email
, no matter how many times he insists he did.
As a site that has regularly reported on Ayyadurai's ridiculous claims ourself, the fact that Thiel may be supporting his lawsuit against Gawker certainly hits home for us. And how the fuck does that have anything at all to do with "protecting privacy"? Ayyadurai has basically been a publicity hound for the last decade or so, effectively demanding
credit for something he did not do.
From there, Thiel shifts tone and pretends that he's a supporter of press freedoms -- despite the fact that he's funding a series of cases designed to destroy a media outlet.
The defense of privacy in the digital age is an ongoing cause. As for Gawker, whatever good work it did will continue in the future, and suggesting otherwise would be an insult to its writers and to readers. It is ridiculous to claim that journalism requires indiscriminate access to private people’s sex lives.
This is ridiculous on multiple levels. First off, it's crazy for Thiel to suggest here that Gawker's writers will "continue" to do what they do in the future when he's actively working to bankrupt them. Just last week, in the Hogan lawsuit, the reporter AJ Daulerio told the court that he was down to last $1,500
and Hogan (via Thiel funded lawyers) was trying to get whatever they could from him. Because of Gawker's bankruptcy, Daulerio could no longer rely on Gawker's lawyers, and he admitted that he could not afford to get his own. It appears that Thiel is doing the same thing to Sam Biddle
, who worked at Gawker and is now at the Intercept. Personally, I think Biddle is one of the absolute worst reporters on the tech beat. He frequently confuses some basic things, draws connections that don't exist, exaggerates fiercely and misleads readers consistently. And yet, I'd side with him every day on the Thiel-funded lawsuits against him. And that's because that's how press freedom works. Even if I think Biddle is a terrible reporter, he should have every right to publish his terrible reporting without fear of being driven into bankruptcy by a vindictive billionaire.
And, again, if this were just about "sex lives", why do so many of the other lawsuits against Gawker, that appear to be funded by Thiel (using the same lawyer, Charles Harder), have absolutely nothing to do with privacy or sex lives? And, also, the claim that this is about "indiscriminate access to private people's sex lives" is simply false. It's a false statement that Thiel has every right to publish because of the freedom of the press that he's currently spitting on. Gawker made it clear that they published the story because
Hogan -- a very public person -- had a history of bragging publicly
about his sex life. That's what made it newsworthy. Nowhere did Gawker claim that it would publish just anyone's sex tapes.
A free press is vital for public debate.
That must be why he told a law firm to find lawsuits with the specific goal of bankrupting a media company he disliked.
Since sensitive information can sometimes be publicly relevant, exercising judgment is always part of the journalist’s profession. It’s not for me to draw the line, but journalists should condemn those who willfully cross it.
Wait. Thiel is totally
claiming to draw the line in this very article
. And he put his money behind his line drawing. Shouldn't we all be a little
concerned when a billionaire gets to decide which reporting is on which side of the line?
The press is too important to let its role be undermined by those who would search for clicks at the cost of the profession’s reputation.
I'd argue that the press is too important to let its role be undermined by a petty and vindictive billionaire who would then totally misrepresent the truth later (after hiding his involvement). This is why
we have anti-SLAPP laws.
And, from there, Thiel makes a weird pivot into backing an almost certainly unconstitutional
anti-revenge porn bill put forth last month by Rep. Jackie Speier.
The United States House of Representatives is considering the Intimate Privacy Protection Act, a bipartisan bill that would make it illegal to distribute explicit private images, sometimes called revenge porn, without the consent of the people involved. Nicknamed the Gawker Bill, it would also provide criminal consequences for third parties who sought to profit from such material.
First of all, it's not nicknamed the Gawker Bill. I've been following both the Gawker lawsuits and various efforts to get revenge porn bills passed for years
and until reading this article, I've never once heard anyone refer to it as the Gawker Bill. Even Rep. Jackie Speier has denied
that anyone has called it the Gawker Bill.
On top of that, as mentioned, the bill is almost certainly unconstitutional. In the last few months we've seen a few state revenge porn bills dumped
as unconstitutional, and should Speier's bill actually go anywhere, it too would almost certainly be declared unconstitutional too.
So now we have Thiel not just pretending to support the First Amendment, but he's both suing to kill a media property and supporting a law that is unlikely to live up to First Amendment scrutiny.
This is a step in the right direction. Protecting individual dignity online is a long-term project, and it will require many delicate judgments.
Those "delicate judgments" include suing a publication for accurately calling out a guy for pretending to invent email? Really? And for personally destroying the lives of reporters? Those don't seem like very good judgments. And, again, this sudden concern for "individual dignity" is coming from the guy who put the first money into both Palantir and Facebook.
We can begin on solid ground by acknowledging that it is wrong to expose people’s most intimate moments for no good reason. That is the kind of clear moral line that Gawker and publishers like it have sought to blur. But they can’t do it if we don’t let them.
I think it's wrong to try to stifle a free press. I think it's wrong to misrepresent the reasoning behind editorial decisions. I think it's wrong to pretend you support privacy when you're responsible for funding two multibillion dollar businesses built on doing the opposite.
Here's the thing: until all of this came out, I had a lot of respect for Thiel. I thought he was one of the more interesting and principled entrepreneurs out there. I thought that his views on investments and entrepreneurship were a lot more intriguing and insightful than many gave him credit for. But these actions and this bogus after-the-fact justification for his actions are just a bunch of cowardly bullshit. Thiel should just admit that he set out to destroy Gawker because he could. There's nothing principled or honorable about it.