2016.014: Gawker, Thiel, and the Future of Free Speech

 Posted on May 30, 2016 in Uncategorized

What I write is what I mean. I will not gertrude. If you read into my words support or opposition for something other than I explicitly support or oppose, you are a fool.

The revelation that Hulk Hogan's lawsuit against Gawker was bankrolled by Silicon Valley billionaire Peter Thiel, who had a hardon for the media company because it outed him as gay, has prompted some interesting discussions.

If you love free speech, a billionaire's successful bankrolling of a company-killing lawsuit over the nonconsensual publication ((There seems to be some debate whether one or more of the participants knew that the tape was being made.)) of a sex tape is not cause for celebration. While one, especially one on the right, might reasonably find joy in the destruction of a leftwing media company publishing pornography without its subjects' consent, broader principles dictate wariness of covert financing of lawsuits punishing speech.

This is not about the social consequences of speech, but rather about the legal consequences. Thiel did not organize a boycott or fund Gawker's competitor. He used the coercive power of the state to destroy his enemy. The First Amendment applies not only to state action in the form of prosecutions and regulation, but also to state action in the form of civil lawsuits.

If you love free speech, state action punishing the nonconsensual publication of pornography should concern you.

But it's just a civil suit.

The Supreme Court has not distinguished between the free speech applicable in a civil suit and the free speech applicable in a criminal prosecution (except to mention in dicta that the free-speech rules might be laxer in the latter where procedural safeguards are stricter). The procedural stature of civil cases reaching the Supreme Court is very different than the procedural stature of criminal cases: the former have made it past a jury, and the latter are (or should be) as-written challenges independent of the facts. But if it's constitutionally okay for a jury to punish a defendant for saying something, there is nothing to stop the government from making it illegal to say the same thing.

But Gawker is the press.

The free-speech rules are not different for the press than for ordinary folks. The press thinks so-it has historically expressed little interest in the plebes' freedom of speech, as long as the government isn't going after the organized media. And the ordinary folks think so-they generally believe that the media has special privileges and special responsibilities-but in fact the Washington Post has no more right to say a thing than you or I have. If it's constitutionally okay for a jury to punish a media defendant for saying something, there is nothing to stop the government from making it illegal for you to say the same thing.

But I would not say such things.

The Supreme Court has recognized certain categories of historically unprotected speech and allowed liability (civil and criminal, against the media and individuals) whose speech falls into those categories. No yet-recognized category of historically unprotected speech includes Gawker's speech in this case - the nonconsensual publication of a sex tape. All speech within an unprotected category is unprotected. The First Amendment is not a scalpel, and the Supreme Court has not shown a willingness to micromanage freedom of speech. The narrowest category of unprotected speech yet recognized is "child pornography," and that is arguably a subset of "speech incident to criminal activity" because the distribution and possession of child pornography are so entwined with child sex abuse.

So while you would not say such things, there is no guarantee (and it is quite unlikely) that a newly recognized category of unprotected speech would include only things that you think should not be said. Unless you make the category very narrow (something that the Supreme Court has not shown a willingness to do) I can describe a case in which, at least arguably, the speech should be protected. That's the thing about the unprotected categories being categories - no defamation should be protected, no child pornography should be protected, no solicitation of a crime should be protected.

For example, suppose that you propose the obvious category: "images of a person engaged in sexual conduct, published without that person's consent." I would describe a case involving a high-ranking government official and her Russian spy boyfriend. But wait, you say, while the fact of that video's existence is important, showing it is not. Somebody, I would reply, has to see it, and for someone to see it someone must publish it. So even if it isn't widely published, someone has engaged in unprotected speech (incurring possible liability) by sending it to CNN.

Yeah, but that'd be newsworthy, and the Hulk Hogan tape was not.

"Newsworthiness" is not a criterion endorsed by the Supreme Court. It applies only in privacy tort cases, and the Supreme Court has never signed off on liability for speech violating privacy. Further, "newsworthiness" is in the eye of the beholder. Hulk Hogan found a jury in Pinellas County, Florida that thought the video of his having sex with his best friend's wife was not newsworthy; a jury elsewhere might have disagreed. A jury in Norfolk, Virginia in 1971 might have found the Pentagon Papers not to be newsworthy. The power to decide whether speech is newsworthy is the power to censor.

There are people on the left who want government censorship. They want to criminalize revenge porn, and satire, and criticism. They are playing a long game, whose end includes a state veto over all speech, and despite their being blue and Gawker being blue they cheer Gawker's destruction because it is a step toward Blue Team's victory in the long game.

Most of those who cheer Peter Thiel for shutting down Gawker, on the other hand, are playing a short game, thinking no further ahead than Gawker's destruction, which feels good to them because they are red and Gawker is blue and they feel that Red Team is winning and that feeling is all that matters.

The short game here is for dolts and losers with no imagination. Red Team doesn't need to decry Thiel's destruction of Gawker - it feels too good to them for that - but Red Team ought to think twice before joining the authoritarian left Blue Team in cheering it.