Why the Gawker case could set a dangerous precedent

gawker1-1Gawker’s prob­lems began in October 2012, when the gossip site ran a por­tion of a sex tape fea­turing wrestler Hulk Hogan, which Hogan claimed vio­lated his pri­vacy and infringed on his publicity rights.

It was later revealed that Sil­icon Valley bil­lion­aire Peter Thiel—an out­spoken critic of the website—provided finan­cial backing for Hogan’s suit, which came to a close ear­lier this year, when a Florida court ruled in Hogan’s favor and the jury handed down a $140 mil­lion ver­dict that ulti­mately doomed the media company.

Here, Dan Kennedy, asso­ciate pro­fessor in the School of Jour­nalism and a nation­ally known media com­men­tator, weighs in on the effect of shut­tering the gossip site on the broader media land­scape and the “trou­bling” mechanics behind the suit that served as its demise. Its ter­mi­na­tion, he says, could empower “wealthy inter­ests” to use the legal system to drive media orga­ni­za­tions out of business.

Read the rest at news@Northeastern.

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Why the case against Gawker threatens free speech

Hulk Hogan versus Andre the Giant. Photo (cc) by Luis Colás.
Hulk Hogan versus Andre the Giant. Photo (cc) by Luis Colás.

Previously published at WGBHNews.org.

Does Hulk Hogan’s invasion-of-privacy suit against the news-and-gossip site Gawker threaten the First Amendment? No. But the way his case is being paid for might.

Last week we learned that Peter Thiel, a Silicon Valley billionaire, had provided about $10 million to help fund Hogan’s case. Such third-party financing is legal, and it proved to be a sound investment: in March, a Florida jury found that Gawker had invaded Hogan’s privacy by publishing a video of him and a friend’s wife without permission and awarded him $140 million.

Now, first things first. If you care to immerse yourself in the details of the case, you will find all kinds of contradictory statements as to whether Hogan (real name: Terry Bollea) and his paramour, Heather Clem (wife of Bubba the Love Sponge Clem; and yes, that’s his real name), knew or didn’t know they were being recorded and did or didn’t expect that the video would somehow become public.

But the law involving invasion of privacy is reasonably clear. It can be traced back to an article that future Supreme Court justice Louis Brandeis and his law partner, Samuel Warren, wrote for the Harvard Law Review in 1890. The principle is explained succinctly in this warning to journalists published by the Reporters Committee for Freedom of the Press:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person; and (b) is not of legitimate concern to the public.

Hogan’s status as a public figure makes (b) a little iffy, and Gawker tried to argue that Hogan’s boasts about his sexual prowess made the sex tape newsworthy. That strikes me as the sort of issue that a jury could legitimately decide either way. As First Amendment expert Erwin Chemerinsky told the New York Times when the verdict was handed down, “I think this case establishes a very limited proposition: It is an invasion of privacy to make publicly available a tape of a person having sex without that person’s consent. I don’t think it goes any further than that and I do not see a First Amendment basis for claiming that there is a right to do this.”

There matters stood until May 24, when Ryan Mac of Forbes revealed that Thiel, a PayPal cofounder and “an eccentric figure in Silicon Valley who has advocated for teenagers to skip college and openly supported Republican presidential candidate Donald Trump,” was the money behind the Hogan suit. Thiel, Mac wrote, had been harboring a grudge against Gawker Media and its publisher, Nick Denton, since 2007, when Denton’s Valleywag site outed Thiel as gay.

The next day Thiel came clean in an interview with Andrew Ross Sorkin of the New York Times, saying, “I refuse to believe that journalism means massive privacy violations. I think much more highly of journalists than that. It’s precisely because I respect journalists that I do not believe they are endangered by fighting back against Gawker.”

As I’ve argued, Hogan’s case against Gawker was well within the bounds of existing privacy law. Moreover, it’s perfectly legal to finance someone else’s lawsuit. Yet numerous free-speech advocates have expressed horror at the Thiel revelation.

Washington Post media columnist Margaret Sullivan compared Thiel’s actions to the Edward Snowden affair and to Senator John Thune’s thuggish (my word, not hers) demand that Facebook account for perceived liberal bias in its Trending Topics feature.

Technology pundit Mathew Ingram of Fortune added that the Hogan case has now “become more about an attempt to bankrupt a publication that a billionaire investor dislikes for personal reasons. And that has disturbing implications for freedom of the press.”

Nick Denton himself, in an open letter to Thiel oozing with self-justifying obnoxiousness, wrote, “The best regulation for speech, in a free society, is more speech. We each claim to respect independent journalism, and liberty. We each have criticisms of the other’s methods and objectives. Now you have revealed yourself, let us have an open and public debate.”

Ingram and other defenders of Gawker point to some troubling aspects of Thiel’s involvement that do, in fact, have some important First Amendment implications. For instance: Hogan’s lawyer apparently insisted on a provision that Gawker Media’s insurance company not be allowed to pay the award, which strongly suggests that the motive behind the suit was to put Denton out of business rather than receive just compensation for the site’s transgressions.

In addition, Ingram notes, Thiel has said he’s backing several other lawsuits against Gawker. Although he hasn’t identified those suits, that may include one brought by V.A. Shiva Ayyadurai, who’s going after Gawker for calling his claim to have invented email fraudulent. Really?

The $140 million awarded to Hulk Hogan seems absurdly high, and the case is under appeal. Meanwhile, numerous reports suggest that Gawker Media is in serious financial trouble as a result of the case.

So we are faced with the prospect that a billionaire may secretly use his money to drive a news organization out of business. Gawker Media may be a singularly unsympathetic defendant, but that strikes me as the sort of money-fueled power imbalance that the First Amendment ought to expose, not enable. Is there anything we can do about it?

As Timothy B. Lee points out at Vox, “the law used to bar unrelated third parties from paying someone else to engage in litigation and financing a lawsuit in exchange for a share of the damages.” Unfortunately, it’s not likely in the current political climate that such a ban would be reimposed.

At the very least, though, efforts such as Thiel’s should not be secret. Denton’s lawyer should have been allowed to present information about how the lawsuit against Gawker was being financed, and to have an opportunity to question Thiel in front of the jury about his activities and motives.

What Warren and Brandeis wrote 126 years ago seems, if anything, even more applicable today:

The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.

But Brandeis may yet come to Denton’s rescue. Whether Denton knew it or not, it was Brandeis he was channeling in his call for more speech. As Brandeis wrote in the 1927 case of Whitney v. California: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

So let Hulk Hogan sue. Let Peter Thiel finance that suit. But let it play out in the light of day so that all of us, including jurors, can weigh and assess everyone’s motives—not just Hogan’s, or Mrs. The Love Sponge’s, or Nick Denton’s, but Thiel’s as well. It’s not a perfect solution, but surely openness would help alleviate any free-speech concerns raised by Thiel’s surreptitious activities.

No, the Hulk Hogan verdict doesn’t threaten free speech

Hulk Hogan with a fan in 2008. Photo (cc) by Rene Passet.
Hulk Hogan (or more likely an impersonator) with a fan in 2008. Photo (cc) by Rene Passet.

Based on my layman’s understanding, it seems to me that the $115 million verdict against Gawker in the Hulk Hogan case fits neatly within existing privacy law. I don’t see how it sets any precedent or poses a threat to the First Amendment.

One question that’s worth asking: Will the verdict have a chilling effect on publishers? I don’t see how. In fact, I don’t think any reasonable person would have thought that he or she could publish a video without permission of someone having sex and not risk serious legal action. Gawker is an outlier. Even observers not familiar with Gawker should have understood that there’s something deeply dysfunctional at a news organization whose former editor jokes about child pornography at a deposition.

Our modern understanding of privacy law is rooted in Samuel Warren and Louis Brandeis’s 1890 Harvard Law Review article “The Right to Privacy.” It’s not that long, and it’s a good read. The first of Warren and Brandeis’s six principles—newsworthiness—is what Gawker hung its hat on in its defense. “The right to privacy does not prohibit any publication of matter which is of public or general interest,” Warren and Brandeis write.

Gawker sought to stretch the boundaries of “public or general interest” way past the breaking point. Yes, Hulk Hogan is a public figure, which means he has fewer privacy rights than most of us. And yes, he bragged about his sexual prowess. But it doesn’t follow that it’s therefore OK to post a video of him having sex without getting his and his partner’s permission, regardless of whether he knew he was being recorded.

Legal experts are all over the place, of course, but Daniel Solove, a privacy expert and George Washington University Law professor, begins a commentary in The New York Times with this:

Gawker’s posting of the Hulk Hogan sex video is not speech that the First Amendment right to free speech does or should protect. Sex videos, nude photos and revenge porn—even of famous people—are not newsworthy. They are not of legitimate public concern.

Gawker founder Nick Denton will appeal, and it’s possible that he’ll win. If the verdict stands, though, it should serve as nothing more than a common-sense reminder that though the First Amendment’s protections are vast, they are not limitless.

Note: A Media Nation reader writes: “I am 99.9 percent sure that is not Hulk Hogan in the photo.” She may be right, and I’ve edited the caption accordingly.

Stomp out clichés and aim for ‘austerity of language’

b_kirtzBy Bill Kirtz

If you feel under par, work your fingers to the bone, and know it’s time for a change, click on the Cliché Site to trade tired phrases for compelling images.

That was one of myriad tips from top nonfiction writers last weekend at Boston University’s annual narrative journalism conference.

Organized by BU journalism department writer-in-residence Mark Kramer, the conference drew some 400 writers and editors from around the world. They discussed everything from viral content to social justice reporting to humanizing even the worst criminals.

Kramer preached his well-known gospel of “austerity of language: elegant, taut” prose that convinces readers they’re in the hands of an engaging storyteller. “Go on a to be hunt,” he said. “Get rid of whens and as’s. Lose clichés and metaphors.”

Keynote speaker Jill Abramson, a former New York Times executive editor now teaching at Harvard, repeated the good writing mantra: “Show, don’t tell. Collect anecdotes and revealing detail.” She called Gay Talese’s 1966 classic “Frank Sinatra Has a Cold” the epitome of the narrative genre.

Abramson had good news and bad news as journalism faces a “rapid riptide of change.” The good: long, ambitious reporting is in high demand. She singled out BuzzFeed’s “wonderful” criminal justice series and former Times colleague Jeff Gerth’s exposé of Hillary Clinton’s private emails as exemplars of excellent coverage delivered over new platforms. Gerth, a two-time Times Pulitzer winner now with ProPublica, co-wrote the March 27 article with Gawker reporter Sam Biddle.

The bad news, according to Abramson: worldwide legal threats to freedom of the press. She noted that a study of corruption in Russia under President Vladimir Putin hasn’t been published in Britain because of fears of legal action.

Abramson sees storytelling platforms consistently shifting, with platforms such as Snapchat and Instagram giving nonfiction writers new tools and outlets.

One of those is BuzzFeed, where Mark Schoofs, a Pulitzer winner at The Village Voice, now leads an investigative unit as the site augments viral content with some 130 domestic and foreign news staffers,

Schoofs said social justice reporting hasn’t changed much since Upton Sinclair, Ida Tarbell and others started muckraking powerful institutions more than 100 years ago. As ever, he said, it is based on “the desire to change, to expose a wrong, to have your journalism matter.”

He said these stories may start with “outrage,” but you have to skewer sacred cows if their assertions are incorrect. “You’re not in the tank for any one ideology or group. Test your assumptions versus whatever you see on the ground.”

He loves immersive participatory journalism and stories that have wrongdoing at their heart, calling David Barstow’s Pulitzer Prize-winning Times series on Wal-Mart bribery one of the best in recent years.

Exposing wrongdoing? Fine. But why humanize evil-doers?

Beth Schwartzapfel examines the inner lives of rapists and murderers because “just calling someone a scumbag is lazy, way too easy. He’s a person” and understanding him can be a valuable way to examine what made him do it.

Schwartzapfel is a staff writer with the Marshall Project, a new nonprofit, nonpartisan news organization that covers the criminal justice, system; she is also a frequent freelancer. She tries to get beyond obvious good guy/bad guy distinctions, asking what if Truman Capote’s groundbreaking “In Cold Blood” had ignored the killers and concentrated only on their victims.

Profiling a man who’s served more than three decades for a murder he committed as a teenager, she doesn’t gloss over what he did. She includes graphic descriptions of the crimes and always details the victim’s family’s grievous loss.

“Don’t give [inmates] a soapbox,” she said. “Being sympathetic is not being their advocate. Let readers come to their own conclusions” about whether they deserve parole. “Show how they’re human, not how they’ve been wronged. That’s up to the reader to decide. I tell them ‘I see it as my task to make you human.’”

As an example of a profile that goes far beyond the image of a stock villain, she praised Albert Samaha’s Village Voice profile of a New York City detective who framed innocent men to boost his conviction rate.

Some dismiss memoir as an unreliable narrator’s narcissistic ramble through the past. But in “Big Little Man,” Alex Tizon created a highly praised blend of history, memoir and social analysis.

“Many people dismiss memoir as easy, and a lot of the time memoir is just a cheaper form of storytelling — but it doesn’t have to be,” said Tizon, who won a Pulitzer for investigative reporting while at The Seattle Times. “Report the hell out of your own story,” he advised, having interviewed about 40 people for his book’s exploration of Asian-American masculinity.

To write a memoir, he said, “you have to risk being a fool unless you’re writing public relations. Include the painful parts. I put my siblings at a certain risk — what to leave out? I had to ask, ‘Could I live with this if a sister never spoke to me again?’ The truth is impossible, but my aim is to be as truthful as possible.”

Bill Kirtz is an associate professor of journalism at Northeastern University.

The James Foley video and bearing witness to evil

James Foley
James Foley

Previously published at WGBHNews.org.

The horrifying execution of journalist James Foley raises an uncomfortable if familiar question: Is there anything to be gained by watching the video of his beheading at the hands of an ISIS terrorist?

It’s a question that I explored 12 years ago, when Wall Street Journal reporter Daniel Pearl was similarly murdered. I searched for the video online and found it at a website whose sick operators presented such fare for the entertainment of their disturbed viewers. I shared it with my friends at The Boston Phoenix, who — to my surprise — published several small black-and-white stills of Pearl’s beheading and provided a link to the full video. “This is the single most gruesome, horrible, despicable, and horrifying thing I’ve ever seen,” the Phoenix’s outraged publisher, Stephen Mindich, wrote in an accompanying editorial.

The Phoenix’s actions created a national controversy. I defended Mindich and editor Peter Kadzis, first in the Phoenix, later in Nieman Reports. (At the time I had left the paper to write my first book, though I continued to contribute freelance pieces. My departure turned out to be temporary. And Kadzis, my editor then, is also my editor now: he is the senior editor of WGBH News.) I wrote in the Nieman piece:

Daniel Pearl didn’t seek martyrdom, but martyrdom found him. The three-and-a-half-minute video shows us the true face of evil, an evil that manifested itself unambiguously last September 11…. We turn away from such evil at our peril.

I stand by what I wrote then, but I haven’t watched the execution of Jim Foley. In contrast to the Daniel Pearl footage, the Foley video is bright and clear, in high definition. I’ve watched a bit of it, listened to him speak while kneeling in the desert; but that was all I could handle.

Boston Globe columnist Jeff Jacoby takes a different view, writing, “The intrepid and compassionate reporter from New Hampshire didn’t travel to Syria to sanitize and downplay the horror occurring there. He went to document and expose it.”

I don’t disagree. But it should be a matter of choice. Gawker, among the first media outlets to post a link to the video, made sure its readers knew that what they would see if they clicked was “extremely disturbing.” By contrast, the New York Post and the Daily News published front-page images of Foley (I’ve linked to a Washington Post story, not the actual images) just before his beheading — in the New York Post’s case, barely a nanosecond before.

It’s a fine line, but I’d say Gawker was on the right side of it, and the New York tabloids were not.

At the time of his capture, Foley was freelancing for GlobalPost, the Boston-based international news organization. GlobalPost co-founder and chief executive Phil Balboni, in a tribute published in the Globe, wrote:

For those of us who knew Jim, the road ahead will be particularly long and trying. As a lifelong journalist, the path forward for me will be rooted in a renewed and profound respect for a profession that for Jim was not a job, but a calling.

And here is an interview with GlobalPost co-founder Charles Sennott, talking about Foley on WGBH Radio (89.7 FM).

We’ve learned a lot since the execution of Daniel Pearl. One of the things we’ve learned is that bearing witness does not necessarily lead to a good result. Years of war in Iraq and Afghanistan have not created a safer world.

Do we have a right to view the James Foley video? Of course. Twitter, a private company that has become a virtual public utility, is heading down a dangerous road by banning images from the video. Should we watch the video as a way of witnessing unspeakable evil, as Jeff Jacoby argues? That, I would suggest, should be up to each of us.

Above all, we should honor the bravery and sacrifice of journalists like Daniel Pearl and James Foley, who take risks most of us can scarcely imagine. Let’s keep the Foley family in our thoughts, and celebrate the safe return of Peter Theo Curtis. And let’s send offer whatever good thoughts we can for Steven Sotloff, a fellow hostage of Foley’s who was threatened with death last week.

On Greenwald, Kinsley is both right and wrong

Michael Kinsley
Michael Kinsley

A few thoughts about Michael Kinsley’s much-criticized New York Times review of Glenn Greenwald’s book “No Place to Hide,” an account of his role in the Edward Snowden leaks.

Kinsley is technically correct in asserting that the government has — and should have — the final word when it comes to deciding whether secret information should be made public. Thus I part company with the likes of Gawker’s Hamilton Nolan, who, in a post headlined “Michael Kinsley Comes Out Against Journalism,” fulminates: “Michael Kinsley does not believe that a free press should be allowed to [expose official secrets]. He believes that the decision to tell government secrets ‘must ultimately be made by the government.'”

It’s Nolan’s “should be allowed” that bears scrutiny. In fact, the Supreme Court has made it clear that the government may act to prevent secrets from being revealed if those revelations would cause a serious breach of national security. Here is how the Court put it in the 1931 case of Near v. Minnesota:

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.

The government may also prosecute both leakers and journalists post-publication, as a majority of the Court all but invited the Nixon administration to do in the Pentagon Papers case — and as Harvey Silverglate explains in this 2006 Boston Phoenix essay.

If you think about it, how could it be otherwise? It’s so easy to conjure up scenarios involving nuclear weapons, terrorism and the like under which censorship and prosecution would be justified that it’s not even worth the effort to spell them out (although Chief Justice Charles Evans Hughes tried to do just that in Near).

But I emphatically part company with Kinsley over his sneering, dismissive tone, and his shocking failure to understand the role of a free press (or even a press that’s not quite as free as Hamilton Nolan imagines) in a democratic society. Because if the ultimate authority rests with the government, there are nevertheless times when leakers, individual journalists and the institutional press must stand up to the government and risk its wrath in order to serve the public interest. That’s what The New York Times and The Washington Post did in publishing the Pentagon Papers, the government’s own secret history of the Vietnam War.

And I would argue that that’s what Snowden, Greenwald, Barton Gellman (curiously absent from Special Agent Kinsley’s arrest warrant), The Guardian and The Washington Post did in exposing the NSA’s practices.

I wrote more about the legal background for The Huffington Post last June.

Photo (cc) by the Aspen Institute and published under a Creative Commons license. Some rights reserved.

Gawker’s slimy hit on Christine O’Donnell

Christine O'Donnell

I will not link, though you’ll have no trouble finding it if you’re interested. But I want to join those who are calling out the gossip site Gawker for an item that was slimy even by its own consistently low standards.

On Thursday, Gawker posted a piece by an anonymous contributor who claimed to have had a one-night stand with Tea Party favorite Christine O’Donnell three years ago. There was no actual sex in his telling, but the details are pretty embarrassing. Two problems: (1) we have no idea if it’s true; and, more important, (2) whether true or not, it’s nobody’s damn business.

Yahoo! media columnist Michael Calderone has a great round-up of outraged reaction to the piece, along with Gawker editor Remy Stern’s pathetic defense.

O’Donnell, the longshot Republican Senate candidate in Delaware, is absolutely fair game for her public utterances, including her deservedly mocked statements about dabbling in witchcraft. But what Gawker did on Thursday was beneath contempt.

The sad irony is that this will contribute to public loathing of the media, even though Gawker’s relationship to journalism is approximately the same as that of the WWE to sports.

Photo via Wikimedia Commons.

Balloon dad hits the 14:59 mark

Richard_Heene_20091017Yes, we should all be skeptical about checkbook journalism, and Gawker is right up front about having paid Robert Thomas, a former friend and would-be business associate of balloon dad Richard Heene (photo).

But if Thomas can be trusted, the picture he paints of Heene is devastating. Thomas portrays Heene as an increasingly paranoid, frantic man who believes shape-shifting reptiles are running the government and who would do anything to get on television.

The two had even talked about perpetrating a hoax with the balloon, Thomas claims, though getting one of the kids involved was supposedly not part of the original plan.

This story in the Denver Post only adds to the sense that it’s all about to fall apart.

Photo of Heene is from his MySpace profile.