Why the mighty US media is backing Gawker
A Trump presidency and Hulk Hogan’s bankrolled lawsuit bodes ill for the freedom the press currently enjoys.
SHUMA RAHA explains
Screen shot of Thiel from patheos.com
The First Amendment of the US Constitution states that “Congress shall make no law … abridging the freedom of speech, or of the press”. However, this cornerstone of democracy in the US could be under threat if Donald Trump, the presumptive Republican presidential nominee, keeps up his almost surreal election campaign and actually manages to get to the White House. Among the many outrageous and deeply disturbing remarks Trump has made so far is his promise earlier this year that if elected President, he would “open up our libel laws so when they (newspapers) write purposely negative and horrible and false articles, we can sue them and win lots of money”.
That prospect may not be as farfetched as it seems. Recently, tech billionaire Peter Thiel, founder of PayPal and a big supporter of Trump, disclosed that he had funded former pro wrestler Hulk Hogan’s invasion-of-privacy lawsuit against media gossip and celebrity watch website Gawker. In April this year a US court asked Gawker to pay Hogan $140 million in damages for having published a sex tape featuring him and a friend’s wife. But what could have been dismissed as yet another case about the tussle between the public’s right to information and the individual’s right to privacy, has taken on a sinister twist now that one knows Thiel paid around $10 million to bankroll Hogan’s lawsuit and go after Gawker. The billionaire is not an uninterested party, of course; he has a personal grudge against the website, which outed him as a homosexual in 2007.
"Thiel paid around $10 million to bankroll Hogan’s lawsuit and go after Gawker. "
Today, practically the entire body of US media is standing with the embattled website. Last week Jeff Bezos, Amazon CEO and owner of The Washington Post, too weighed in on Thiel’s battle with Gawker and implied it was ill-advised. Indeed, journalists and media professionals may or may not approve of what Gawker published, but they are vociferously defending its right to publish it.
Here’s why.
The US has one of the most robust free speech models in the developed world and it is based primarily on a unanimous verdict by the country’s Supreme Court in the New York Times Co v Sullivan case in 1964. The court had ruled that any public figure suing for libel must prove that the statement was made with “actual malice”, “that is, with knowledge that it was false or with reckless disregard of whether it was false or not”. In other words, the burden of proof for defamation arising out of actual malice is on the plaintiff, making it damnably hard for any private individual to win a lawsuit against a media organisation.
However, when a tech mogul like Thiel throws his financial might behind the effort to win such a case for one or more parties, free speech standards begin to look vulnerable. Simply because, even if Gawker wins the Hulk Hogan case on appeal, Thiel can continue to back a series of revenge lawsuits by other Gawker “victims” and bleed it white. Basically, Gawker is staring at the possibility of being put out of business because, unlike Thiel, it doesn’t have the wherewithal to fight so many expensive lawsuits.
Thiel has gone on record to say that his attempt to crush Gawker was an act of public service. In an interview with the New York Times, he said it was "one of the greater philanthropic things that I've done. I think of it in those terms”.
" If the super rich are able to use their money power to destroy media outfits they believe are hostile towards them, media as a whole may become increasingly leery of investigative journalism"
His assertion portends a chilling scenario, one in which phenomenally rich people may decide to annihilate media organisations which annoy them, all the while conflating an act of personal vengeance with the bizarre notion that it was being done in public interest. Apart from the incredible hubris of such a proposition, it has the potential to destroy the very pillars on which free speech stands. For obviously, what’s at stake here is not just a gossip blog’s right to publish a sex tape featuring an abundantly mustachioed, ageing wrestler. If the super rich are able to use their money power to destroy media outfits they believe are hostile towards them, media as a whole may become increasingly leery of investigative journalism and of serving citizens’ right to information about public individuals.
The US media has rightly lambasted Thiel for his philanthropy comment, finding it at once offensive and dangerous. Writing in the New York Times, Canadian writer and Esquire columnist Stephen Marche made a few telling points about Thiel and his entitled ilk: “Mr Thiel meanwhile seems to want a world in which he, personally, encounters no resistance, whether it comes from government or the free press or anyone else for that matter…The new breed of technologists who are taking control of the news media do not feel they should pay taxes or submit to regulation or offer anything more than disruption to their employees. They need to be challenged. And Gawker, at least, has challenged them.”
India is, of course, at a vast remove from the free speech debate that’s convulsing US media right now. Though Article 19(1)(a) of the Indian Constitution guarantees freedom of speech and expression to all citizens (with certain “reasonable restrictions”), the law against defamation is fairly draconian. In fact, “damaging the reputation of a person” is not just a civil offence in this country — it could also be a criminal one under Sections 499 and 500 of the Indian Penal Code.
It is often argued that criminal defamation is at odds with free speech rights. But so far the courts have refused to see any merit in that argument. Last month the Supreme Court, ruling on a petition filed by BJP leader Subramaniam Swamy, upheld the constitutional validity of defamation as a criminal offence. “One is bound to tolerate criticism, dissent and discordance but not expected to tolerate defamatory attack,” the court said. “Reputation of one cannot be allowed to be crucified at the altar of the other’s right of free speech,” it added.
Right now Swamy and other high profile politicians such as Rahul Gandhi and Arvind Kejriwal are facing criminal defamation suits. But the ones most frequently at risk from the law are, of course, journalists and media organisations.
The Thiel-Gawker duel in the US will be watched in media circles around the world, including here in India. Not least because Thiel’s action is in tune with what the incredible Mr Trump has been threatening to do should he become President — stiffen libel laws so newspapers can be made to sweat for doing their job. If that happens to journalism in a country that’s supposed to be the “leader of the free world”, it bodes ill for freedom of speech everywhere.
Shuma Raha is a senior journalist based in Delhi
The Hoot is the only not-for-profit initiative in India which does independent media monitoring.
Subscribe To The Newsletter