Goliath vs Goliath: Not a David In Sight
So, in the event that you have been living under a rock for the last couple of weeks, you have read that Silicon Valley icon Peter Thiel was financing former wrestler and probable 2020 Republican presidental nominee Hulk Hogan’s lawsuit against Gawker, the verdict of which was a whopping $140,000,000. I thought this was an interesting piece of trivia. Apparently, though, it’s the End of Free Speech as we know it! Or, at the very least, concerning. As a matter of free speech.
The nature of the concern is that such litigation allows the wealthy to abuse the legal system to squelch free speech. One similar story, wherein Idaho millionaire Frank VanderSloot filed a frivolous lawsuit against Mother Jones that ended up costing the liberal publication and its insurers millions of dollars just to defend itself. That case is concerning because, as any physician (or physician’s spouse) can tell you, you can lose a lawsuit even if you win it, just by ending up in court. That’s certainly a concern, but I see very little that’s particularly alarming in the Gawker story itself, assuming that we’re okay with our litigious culture in the first place.
Whereas VanderSloot sued on his own behalf, Thiel helped others finance lawsuits. Is that a problem? Litigation critic Walter Olson thinks so:
Olson argues that if you went back a century or two and talked to British or American legal scholars, “they’d say of course these things would be used by the rich and powerful if you allowed them.” Under doctrines called champerty and maintenance, 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.
But states have loosened these laws over the past 50 years, in part because lawyers began to see easy access to the courts as being in the public interest. This was driven in part by the rise of public interest litigation — think, for example, of an environmental group finding a third-party plaintiff to sue a company to stop an environmentally sensitive development project.
“Awards are constantly being given to projects in which some wealthy person decides that someone needs to be sued, finds someone who has standing as a plaintiff, and generously funds their litigation,” Olson says.
Sounds ominous. But what is the alternative? The alternative is that nobody but the plaintiff can fund lawsuits. The environmental litigation is one example, but another would be the ACLU. Apart from contingency lawsuits, it would limit access to the courts to those with deep pockets. Now, maybe it is the case that we should rely on lawyers to filter out cases by way of their willingness to take them on contingency, but what a lawyer is willing to spend on a contingency case is likely to be considerably less than what they would spend if they had a benefactor. Again, access to the courts would be even more restricted by money than it already is.
I don’t honestly have very strong feelings one way or the other on this. Apart from Burt Likko and a few other folks around here aside, plaintiff attorneys mostly exist in our life as a predator in the shadows. Sonny Bunch has a list of such arrangements that liberals should like, and I am pretty pleased with the results of some of them. The argument in favor of these tends to be that David needs a Goliath to battle Goliath. In any event, the law is the law, and whether we agree with them or not there are reasons that we have these laws on the books. They are not to protect the Peter Thiels of the world. Maybe that should change.
Thiel may not be a good dude, but Gawker’s own history here is highly relevant. They do what they are accused of doing here, and not just to Hulk Hogan. Should they be allowed to under the umbrella of free speech? Should they not be allowed to under the umbrella of a right to privacy? Is a sex video with a celebrity “news”? What about a video in which a woman claims she was being raped? These are good questions that have nothing to do with Peter Thiel, except insofar as he made sure that Gawker wasn’t going to be able to spend plaintiffs into the ground or intimidate contingency lawyers with its largesse.
I don’t know whether Thiel was justifying in doing what he did here. It does seem clear to me that whether this can be considered “philantropic” or not, he is doing this for his own sense of justice. If he were merely looking to intimidate, nobody would have had to dig to find out he was behind it because he would have wanted everyone to know about it. This was in retaliation for Gawker having officially outed him. It’s been said that Thiel’s closet was a glass one, or that he had no right to be in a closet to begin with. Silicon Valley is pretty liberal, after all! Thiel in turn claims that this sort of thing hurt him with overseas investors who are less tolerant, and that he had a right to his privacy. He obviously didn’t have a legal right to his privacy, since he didn’t or couldn’t sue for his outing, but some degree of pissed-offedness seems understandable. Some of the other cases he’s pursuing, including suing individual lawyers, are discomforting.
At the end of the day, though, the Hogan’s lawsuit that threatens to destroy Gawker was not frivolous. He won. Maybe we think the jury got it wrong, or that the basis on which he one is a law that needs to be changed. Gawker lost in good part because it felt invulnerable precisely because it believed it was the Goliath and that it could act with impugnity. Anger at Thiel for funding the successful lawsuits are hard to separate from anger that Hogan got his day in court to begin with.