Peter Thiel’s Attack On Gawker Is Not an Abuse of Wealth

And Thiel’s tactic is more subtle than Rupert Murdoch’s. Where Murdoch buys the Wall Street Journal to turn it to his ends, Thiel just pays to put Gawker out of his misery. Ultimately, it is hard to tell the difference.

The thing about this is, it’s in the public interest if Thiel is funding cases like this – especially, for targeting a news outlet – and so, this should have been known publicly from the outset, not revealed later on.

A bad case to hang the argument on.

The better example is Vandersloot vs Mother Jones, which MJ won, and were nearly bankrupted, and Vandersloot is still looking to fund cases

http://www.motherjones.com/media/2015/10/mother-jones-vandersloot-melaleuca-lawsuit

Gawker is not a journalistic endeavor. Their work and acts are not sacrosanct, not worthy of protection. Why anyone would care who either Thiel or Hogan is putting their willie in is unfathomable.

It’s really quite simple: Rights are limited when they diminish another’s.

In one sense, the whole of western law is predicated on the thesis that there is a putative moral or ethical equation that underpins the relative quality of acts in the expression of rights and, so long as the exercise of one’s presumed rights does not diminish another’s no cause for tort arises. Daughters to this proposition are the premise of a hierarchy of rights and a mechanism to adjudicate dispute. Within that presumed hierarchy, the question can be framed thus: is the right to salacious self-enrichment based on the non-consensual exploitation of private, consensual sexual acts greater than the right to enjoy consensual sexual acts free of molestation in the public eye in service of the salacious self enrichment of non-participants? Seems bloody obvious to me. Maybe I’m not a douchebag.

I can understand why Thiel wants to obliterate Gawker’s pathetic, narcissistic editors. The douchebags at Gawker assert a right to publish what ever rot they can get their grubby hands on without regard to either the infringement of the natural rights appertaining to personal conduct or the harm caused by that publication. They rely on a corrupt (in the biblical sense) judicial system to defend their presumptive right to publish knowing that the judicial system is systemically biased in favor of wealth. Whether they know where the limits of their rights are is moot in the eyes of the law. Favorable outcomes in the judiciary are not equivalent to justice.

So the cause of action in tort is one consideration. The other thing to think about is the harm Gawker inflicts on the body public by asserting the right to cause harm in the service of greed under the guise of free speech and journalism. This is where I think Thiel is completely justified in his vendetta. I don’t respect Thiel generally but I totally support him in this.

“I’m richer that you, ergo, bend over, it’s my right to ruin you” turns out to be one of the fundamental flaws of our uncivil society and if it takes the serene irony of a pissed off billionaire to teach that lesson to a handful of wannabe billionaires, then pass the popcorn. amen.

I’m not sure I agree that your analysis applies in this case, because, as I understand it, Hogan had the opportunity to access justice in the form of a nontrivially large cash settlement without Thiel’s help — lawyers work on contingency on these sorts of cases in the USA. However, that would have been over much faster. What Thiel did was compensate the lawyer for taking a risk that the judgement might have been be smaller than the settlement, as well as ensure that Gawker’s insurers won’t pay its legal costs. ie, it was intended to inflict greater damage on Gawker rather than merely compensate Hogan/Bollea for damages.

So it’s not a case where Hulk Hogan, a wealthy man, couldn’t access justice as such — because settling at such large sums of money is one of the success modes in the US justice system. It was merely that Thiel enabled Hogan to position the case in a manner than lowered Gawker’s chances of survival as an entity. And while I have no particular love of Gawker’s “journalism” and scandal-mongering, the practice of institutional destruction, for whatever reason, bothers me more, especially when it wasn’t a case where Hogan couldn’t have been compensated. So I do think it’s an abuse of Thiel’s wealth because of the specifics of the circumstances.

If it were the case that Hogan simply could not have afforded a lawyer or expected to get any compensation at all, then Thiel’s actions might have been philanthropic. But not in this case. It’s all vendetta.

There are no grounds for supposing that had Bollea’s legal expenses not been underwritten by Thiel that he would have received adequate compensation for proved loss of earnings to say nothing of loss of reasonably expected earnings or punitive damages.

The same lawyer could still have represented him, on a contingency basis, and the facts of the case would have been the same. The difference is that the insurance would have been involved.

http://sfist.com/2016/05/24/gawker_media_suspects_silicon_valle.php

So I don’t see the reason why you don’t think that Bollea could not have received adequate compensation without Thiel’s help.

Nor are there reasonable grounds for criticising Thiel for subsidising Bollea. Thiel is entitled to spend his money as he sees fit. He saw attacking Gawker as an action in re publica, I’m inclined to agree.

It is possible Thiel is doing the world a public service by shutting down an online gossip rag. The issue is not that. The issue is, as usual, the consequence of very rich men manipulating the system to exert this type of power. Now, Gawker and Nick Denton are not at all sympathetic defendents. But now we know that this might be happening in less “flashy” situations, clandestine SLAPP behaviour, if you will.

You *can* use the US system to litigate and pay little or no up-front costs, that’s where the ambulance-chaser lawyer stereotype comes from in the USA. That’s the role of contingency lawsuits. The catch is that you have convince a lawyer that the case is strong and the potential payout after winning is worth the cost, ie, you have to present the lawyer with an opportunity with what s/he judges is a high enough expected value. There are nontrivial numbers of such cases in US courts, in my observation when I lived there and followed local news.

That means that what is reserved for the rich are the “dicey” cases, where there’s a substantial chance of failure before the law. Risk-taking is expensive in the USA. But Hogan/Bollea’s case is not one of them, because a large settlement was possible. However, Thiel and Bollea decided that what they wanted wasn’t a payout to make up for what Bollea suffered from revealing his private activities, but rather destruction of the organization. As I said, that in itself might be a mitzvah, because by all accounts the main Gawker site was run by awful human beings (as opposed to some of the other Gawker properties like io9 which I was more likely to read). But that doesn’t necessarily make this a positive trend overall.

(Another model is one followed by (some?) European countries, in which contingency and class action don’t exist, but lawyers fees are regulated according to a schedule. This can get quite expensive, but lawyers don’t have discretion to charge whatever they want and e.g. stick impoverished losers with the legal costs. But yes, civil law is first and foremost a pastime of the rich.)

And just to expand ever so slightly on Mandos’ observation, it is plain that *any* payout would be lessened by maneuvers to exclude the insurer.

Of course Thiel is entitled to do whatever he wants with his money but there ought to be (and there aren’t) restrictions on what the legal system will tolerate. Beyond the problem with SLAPP litigation, there is also the potential that a business competitor (and it isn’t clear that isn’t the reason for Thiel’s participation) could use a device like this to bog down his competitor in the enormously expensive and stressful burden of defending, regardless of the merits of the case. Thus, even if plaintiff loses, the defendant would have been seriously compromised as to reputation as well as financially (enormous defense legal fees) and emotionally.

And yes to everyone’s observations that this is a seriously compromised legal system. Let me count the ways…

“Thiel can (is entitled to) do whatever he wants with his money.” Presented as a common sense proposition, with an unwritten provision if it is reasonable, presents a really big problem that goes to the core of a system that produces extreme wealth. And poverty.
Whatever billionaires want to do with their money has proven a dangerous privilege.
Evict old ladies? Foreclosure robotics signing? Color revolutions? Contract murder? $90,000 hepatitis drugs? Laundering cartel cash? Capturing educational institutions with Koch, Gates money and Ayn Rand books? Flooding the planet with banned WMD?
Everything they touch turns to ash.
The power to destroy institutions, or individuals, will be employed against the ACLU as easily as gawker. By people that promoted “tort reform.”
“Theres a fine line between a business success and a prison sentence.”
If only it were still true.

cripes: Yes, exactly. Peter Thiel’s idea of philanthropy is not the idea of philanthropy of any of the regular readers here. That he demonstrated his power by doing something of no material benefit to himself that many here may happen to agree with, against a very unsympathetic defendant, does not make this form of philanthopy any less problematic as a general concept.

And the tort reform point is an important one. In point of fact, the USA has one of the friendlier civil law systems for small plaintiffs. I myself have been party to one or two successful financial-industry class action lawsuits as a plaintiff class member, and received small payouts commensurate with the financial damages I sustained from questionable conduct. The contingency system allows pretty much anyone to sue so long as they can find a lawyer who believes them and believes s/he won’t have to carry the case to the Supreme Court to win it. It’s the borderline and path-breaking non-class-action suits that are the ones that are truly reserved for the rich. The ease of access for ordinary people to the US court system is precisely why the US right is constantly baying for tort reform. (And of course criminal law is just awful, especially in comparison to civil law.)

In many European countries, you don’t even get a first free consultation with a lawyer which is standard in the USA.

The path-breaking cases will always be expensive to litigate in any system. That’s why, for example, Canada used to have a robust Court Challenges Programme. Under the previous Harper government in Canada, it was cut. But that sort of program is the right way to go for closing that gap.

The courts are increasingly closing the door on the type of meritorious class action law suits you speak of. They’ve shut the door on most employment suits involving thousands of employees of huge multinationals, they’ve shut the door on class action suits with mass marketing corporations like cell phone providers who simply foreclose the possibility of class action suits by having mandatory arbitration clauses, etc. On the other hand the door is wide open to class action suits against small local businesses that haven’t been able to afford to lawyer up to comply with the enormous number of conflicting, difficult to parse regulations. For example, I know of a multi-million dollar class action lawsuit with the class representative being a local competitor against a local bagel maker for having faxed menus to local patrons without a properly worded opt out clause.

This is typical of this totally compromised legal system. An exception to our normal rules of pleading is created giving access to the courts to persons who otherwise couldn’t afford to seek redress from large entities able to absorb enormous legal fees to fend off legitimate claims for their various acts of fraud and undue enrichment. The purpose for such an exception is quickly forgotten as the courts undermine its intended purpose while claiming to support its existence by redirecting the resources intended for the weak and powerless to the class-action troll part of the brotherhood.

There is a little dance being danced in the U.S. Supreme Court and a number of states between the “liberals” and the conservatives. The conservatives whittle away at the liberal intendment of earlier law, and then the “liberals” come to the rescue by preserving “this important principle” as applied in cases like the bagel baker case I mentioned. The same sort of dance happens in virtually every area of the law.

Not to mention the regulatory capture that results in regulations and regulatory actions redirected from the initial justifications for their existence to methods of repression for those who can’t afford a seat at the table, etc.

An so on…