By David Harsanyi
Thursday, May 26, 2016
We recently discovered that Peter Thiel, libertarian (?)
billionaire co-founder of PayPal and early investor in Facebook, has been
bankrolling lawsuits against the gossip site Gawker.
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.
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