Now, as someone who considers himself a near-absolutist on free speech, I’m open to hearing arguments for why we need tort reform in these sorts of cases or why Hulk Hogan’s suit undermines free expression. But so far, the media’s hysteria about Thiel’s third-party legal funding has been unconvincing — especially when we consider who’s making the arguments.
And after wading through the thousands of angst-ridden words, I noticed that the case mostly boils down to two objections: Thiel’s motivations and Thiel’s money. And when I say Thiel, I mean Thiel. There is little anxiety over third-party funding when we’re talking about the giant apparatus the Left uses to implement their own will via the courts. Even more hypocritical is the fact that many of the same people so distressed about the future of sex tapes regularly advocate for policies that would allow the state to inhibit political speech.
Ezra Klein, for instance, writes that what’s “endangering Gawker is Thiel’s endless resources, and his apparently limitless appetite for revenge. Those tools can be used by anyone with enough money, against any media target they choose, for any slight they perceive.”
Josh Marshall says it’s a “Huge, Huge Deal,” and writes, “We don’t have to go any further than Donald Trump to know that the incredibly rich often use frivolous litigation to intimidate critics and bludgeon enemies.”
Thiel is “reinventing the concept of philanthropy so as to include weapons-grade attacks on America’s free press,” writes Felix Salmon, who goes onto say that Thiel’s success has essentially given other billionaires a blueprint on how to put critics out of business. Slate says Thiel is the bully here.
Which would all be very upsetting if true.
There’s a question that should not be lost in this debate: is it an invasion of privacy to make public a tape—not a news story about a sexual indiscretion or a snapped picture of a sexual indiscretion in some public place, but a movie of a person engaged in sex in private—without the consent of the person in it? In other words, was this lawsuit really “frivolous?” Not according to a judge. Not according to the jury that awarded Hogan more than $100 million. And not according to a circuit court judge that upheld that verdict.
There’s no doubt the judicial system has its share of ridiculous decisions, frivolous lawsuits and hyper-litigious troublemakers. So what precedent has Thiel really set? Well, we’ve probably seen the end of sites posting private sex tapes without permission. If you’re upset about the amount Gawker is on the hook for, let’s talk about capping awards. But the contention that Thiel is abusing the system because of a “limitless appetite” for revenge would be a lot stronger if he hadn’t actually won the case.
Now, whether Thiel was compelled to engage in this crusade because he was “slighted” by Gawker is immaterial. Some rich people are motivated to act because they are slighted, others because of ideology, or empathy or hate, or because there’s a media outlet that believes it’s okay to run sex tapes of people as long as they’re not under the age of four. So what?
Moreover, if Thiel’s motivation were a cause liberal pundits felt some moral or ideological affinity towards, they would be cheering him on. Vox asserts that Thiel “sees his lawsuit as a public-spirited attempt to enforce norms of decency and respect for personal privacy.” Or, in other words, he uses the judicial system the same way liberals have for decades when trying to enforce their own norms—including ones on abortion rights, gay marriage, and basically everything else they value.
Actually, every contemporary major lawsuit of any political consequence has probably been funded in some way by a third party. If Thiel is a problem, so is the pro bono legal work of wealthy lawyers who donate their time and resources to causes that move them. So is contingent litigation. So are class-action lawsuits. So is every advocacy legal group. Start with the ACLU, which is backed by hundreds of One Percenters and works to enforce its own norms of “decency and respect” when it comes boys’ and girls’ bathrooms and leads crusades to do away with the Free Exercise Clause.
By the way, Nick Denton is also a One Percenter. So are the owners of the New York Times and every other major media outlet you can think of. These One Percenters can just as easily destroy lives and abuse their powerful position and hire teams of lawyers. Sometimes the only way to fight back is to collectively fund an effort or find a third-party benefactor.
If press outlets feel that the sex tape case is worthy of a First Amendment fight, they could easily match Thiel’s $10 million investment. Otherwise, what do these critics propose? Should we pass a law capping the amount of funding people with the last names “Thiel” and “Koch” can provide for lawsuits? Ban billionaires from participating in the legal system?
But the most infuriating hypocrisy of the entire Thiel kerfuffle is that many of those wringing their hands have no problem with the overall deteriorating attitude regarding free expression on the Left. Some, in fact, actively argue for inhibiting free speech. I’m not only talking about the rampant illiberalism we see at institutions of higher learning or the abuse of government officials who are attempting to punish Americans who are skeptical of liberal doctrine. Some of them would be perfectly content handing over far broader and more consequential powers of censorship to the state, allowing government to literally ban movies and books with political messages. That includes the institutional position at almost every liberal publication lamenting the actions of Peter Thiel.