It didn't have to come to this.

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Attention, Media People: Peter Thiel Changes Nothing

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”
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To read the Internet as a journalist over the past 48 hours is to conclude that the media is on the verge of a holocaust. Not the boring old holocaust of falling ad revenues and clickbait-oriented business models, but a brand new holocaust, in which rogue billionaires are going to sue us all out of existence.

The proximate cause of the sky falling is the revelation that Silicon Valley billionaire Peter Thiel has been funding lawsuits against Gawker, apparently with the intention of destroying the company. These included the Hulk Hogan sex tape lawsuit, an invasion-of-privacy case which appears to have been strategically designed to cost Gawker as much money as possible. (A Florida jury awarded the former wrestler $140 million after it published the video, which he says happened without his consent. Gawker plans to appeal.)

Felix Salmon lays out why he thinks this is a profound threat to freedom of speech. “Thiel’s tactics in going after Gawker are very, very frightening for anybody who believes in freedom of speech” he writes; they’re also “extremely effective, in an evil-genius kind of way”:

Investing in Gawker right now is a very unattractive proposition, since any investor knows that they will be fighting a years-long battle with a single-minded billionaire who doesn’t care about how much money he spends on the fight. And if Gawker can’t raise any new money to continue to fight the Hogan case, then its corporate end might be closer than anybody thinks. … It gets worse. If Thiel’s strategy works against Gawker, it could be used by any billionaire against any media organization. … Very few companies have the legal wherewithal to withstand such a barrage.

I find myself in agreement with the basic sentiment -- powerful folks using their power to shut down speech they don’t like is deeply worrisome. That’s true whether those folks are Silicon Valley billionaires going after low gossip, or state attorneys general trying to shut down climate change advocacy they don’t like, or politicians using the power of the Federal Elections Commission to keep critical movies about them from airing during election season.

However, I don’t think this is an existential threat to journalism. I don’t think there’s an easy way to stop this sort of thing without stopping a lot of other stuff we’re rather fond of. And I think that journalists who have suddenly, belatedly discovered that harassing lawsuits funded by deep pockets might be a bit of a problem should ask themselves if it’s also a problem when they’re aimed at people other than them.

Let me start by laying out my position on the Hulk Hogan sex tape on the table: It’s vile and prurient, it has no news value, and its publication should have been stopped -- not by fear of lawsuits, but by common human decency. Yeah, I’m a buzzkill. But I’m far more sympathetic to Gawker’s victims than to Gawker on this point, as I so often am when they self-righteously cloak repulsive clickbait in the proud trappings of First Amendment principle.

But my more considered reaction is that it’s actually pretty hard to establish a principle which protects important speech, but not the publication of the Hulk Hogan tape. Not impossible (obviously), but not all that easy. Journalists invade folks’ privacy all the time -- that’s sort of our job -- and drawing lines about whose privacy may be invaded, and when, is not easy for people with a strong commitment to free speech norms. Slippery slopes are real, and when they’re well-greased, you’d be amazed at the kind of acceleration you can get.

So while Hogan may indeed have the legal right of things, I don’t agree with any law that gives him this power. I want Gawker legally protected -- not because I approve of what Gawker did (I strenuously don’t), and not because I believe that the press has special rights that other people don’t, but because I want everyone to have the right to speak without fear of censorship. It doesn’t matter whether that censorship comes from the government or deep-pocketed plaintiffs using the power of the law.

However, whatever the merits of Hogan’s case, it’s also pretty hard to come up with a good principle with which to stop Peter Thiel from doing this sort of thing. The press seems to have suddenly discovered the troubling power of deep-pocketed third parties to make “the process the punishment.” This is particularly surprising in the case of Felix Salmon, who must surely be familiar with some of Eliot Spitzer’s antics against the financial industry. Those occasionally had a similar “Who cares if I’m right; you’ll go out of business long before I run out of filings” flavor to them.

Nor did people show quite this much outrage when states’ attorneys general started organizing a massive campaign against energy companies for having the temerity to oppose their public policy ideas about global warming. That campaign has included subpoenaing advocacy groups, a move that seems quite clearly designed to chill speech the government doesn’t like.

On Tuesday, Chris Hayes tweeted “A billionaire secretly suing a publication into oblivion is a million times bigger threat to free speech than ‘safe spaces.’” In the long run that’s debatable, but leaving that aside: Elected officials using the power of their office to try to shut down speech through lawsuits is, like, a million times bigger threat to free speech than a billionaire secretly suing a publication into oblivion. Yet the reaction to those subpoenas from the left, and indeed the media, has been kinda muted compared with the full-on meltdown we’ve seen over Gawker.

In fact, there is a very long history of third parties using lawsuits to achieve public policy ends. As Eugene Kontorovich points out at the Volokh Conspiracy, if you’re a fan of legal aid societies, ACLU and civil-rights suits, or massive class action litigation, you’re a fan of third parties financing lawsuits -- often, yes, with carefully hand-picked test cases. And while much has been made of Peter Thiel’s revenge motive, it is also not unheard of for people with a personal stake in an issue to donate money to advance that cause through lawsuits. If someone who was a victim of racial oppression by the state of Mississippi later funded lawsuits aimed at fighting racism in the state, we’d be clapping, not wringing our hands.

Peter Thiel can legitimately argue that he believes Gawker shouldn’t be allowed to publish gossip, and that he would like to advance the public interest by curbing this sort of thing through lawsuits. I disagree with his goal, as I’ve said, but it’s hard to come up with an actual principle that would justify stopping him -- other than “People I disagree with shouldn’t have the same rights as people I like.”

And that matters because -- as we so rarely seem to remember these days -- a vast, diverse country needs to be governed under broad and neutral principles. We can’t choose the winners and losers first and then jerry-rig a system that will produce the outcomes we want. Unfortunately, that’s what most people are doing when they talk about both Gawker’s journalistic standards and Peter Thiel’s lawsuits. My position on both is the same: I don’t really approve, but I also don’t see a way to stop it without endangering a lot of really important civic processes. So we’ll have to live with it.

Fortunately, I also don’t think this is the End of Journalism As We Know It.

It’s actually really hard to sue a media organization in America (and before you think this is special pleading for my industry, it’s hard to sue anyone over their speech). Gawker is particularly vulnerable because it was sued not for libel, but for invasion of privacy. That’s an easier case to prove, but it’s not the kind of suit to which, say, the New York Times routinely makes itself vulnerable. And judges have many tools at their disposal to fight back against suits that they think are abusive.

So while I can easily agree that this is an existential threat to Gawker, and may even have a chilling effect on other gossip sites, I’m not particularly worried that it’s a profound threat to the media in general. Most media do not traffic in material which has no obvious news value besides pointing and laughing at someone’s private life. Adam Smith famously remarked that there’s a lot of ruin in a nation. There’s a lot of ruin in a national press corps, too.

  1. Disclosure: My husband worked at the Competitive Enterprise Institute, which was subpoenaed, before we met, and his current employer, the Reason Foundation, was also targeted. However, the column I wrote was written before the subpoena dropped on Reason, so I only disclosed the CEI connection in the original.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Megan McArdle at mmcardle3@bloomberg.net

To contact the editor responsible for this story:
Tracy Walsh at twalsh67@bloomberg.net