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.
After wading through the thousands of angst-ridden words, you’ll notice the case boils down to two objections: Thiel’s motivations and Theil’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.
For starters, 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 is teeming with ridiculous decisions and hyper-litigious troublemakers, 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 won the case. The precedent Thiel probably set was the end of news sites posting private sex tapes without permission anymore. What a bully!
The only question that needs answering here is this: 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?
Now, whether Thiel was compelled to engage in this crusade because he was “slighted” by Gawker is immaterial. Some rich people are motivated to get involved because they are slighted, others because of ideology, or empathy or…