It's now clear that President Trump poses unprecedented threats to freedoms of speech and press. Take Care and Protect Democracy have teamed up to host a forum in which leading scholars consider how we can use the law (and litigation) to protect against Trump's use of the "bully podium." This is the latest entry in that forum.
Let’s say a billionaire — one who donated more than $1 million to President Trump’s campaign and participated in the Republican National Convention — led a vendetta to destroy a lefty news organization through a personal injury suit. As a result, a publication with 14.5 million readers is shuttered, and an individual reporter’s paltry personal bank account is frozen under a $115.1 million judgment for which he is jointly liable. That’s what happened to Gawker at the whim of Silicon Valley billionaire Peter Thiel, who successfully shut down the news site after scouting plaintiffs and secretly funneling around $10 million into litigation against Gawker after he claims the site outed him in 2007. Don’t like Gawker? In 2015, Mother Jones won similar litigation — financed by another billionaire and major Republican donor, Frank VanderSloot — but was reportedly stuck with a $2.5 million bill payable by it and its insurer (and another $650,000 in out-of-pocket expenses for the publication).
To bring down Gawker, Thiel engaged in Kafkaesque impact litigation. He used a familiar method — bankrolling a test case to target a perceived bad actor — to achieve an unfamiliar end: The destruction of an independent publication chiefly serving the public. The tactics he used were designed to avoid settlement and prevent Gawker’s insurer from bearing litigation costs.
Finally, perhaps to stave off an appeal of the potentially legally vulnerable judgment for Hogan in the case, Thiel’s attorney Charles Harder made Gawker Media CEO Nick Denton — who filed for Chapter 11 bankruptcy after the judgment — an offer he couldn’t refuse. The case settled for a reported $31 million, and Denton and Gawker apparently waived rights to appeal the judgment. Harder is the lawyer behind several more suits targeting former Gawker Media sites Jezebel and Deadspin, as well as a suit against TechDirt.
Harder has multiple ties to litigation threats involving the Trumps, as well as other spectacularly wealthy clients: On Oct. 6 he announced that he reportedly threatened litigation on behalf of Harvey Weinstein, the wealthy Hollywood producer accused of decades of sexual harassment, against The New York Times, despite Weinstein’s statement to the paper stating he “cannot be more remorseful about the people I hurt[.]”
Harder’s campaigns targeting media organizations is a public problem with constitutional implications. As Professor Sonja West has noted in this forum, the Free Press Clause is something special: Madison specifically labeled it “inviolable” and “one of the great bulwarks of liberty,” and arguably considered it as important as all the other “rights of conscience” enumerated in the Amendment put together. Yet for years the freedom of the press has been under sustained attack from wealthy corporations and individuals, not to mention from the presidency. In this context Gawker’s destruction isn’t the canary in the coal mine; it’s Centralia. (And speaking of coal. Or maybe don’t.)
Commentators have understandably jumped to defend the type of third-party funding that Thiel used to effectuate Gawker’s demise. Many plaintiff-side public-interest organizations, long under assault by monied interests, rely on such funding. At Slate, for example, Mark Joseph Stern suggested that we can’t “draw a legal distinction between what Thiel is doing and what the ACLU does,” and suggested that Thiel’s legal action aimed at annihilating a news site “exists on the same continuum of free expression” as suits like NAACP v. Button.
I disagree. We don’t need to resurrect doctrines of champerty and maintenance to stop those who would seek to destroy any news organization that dare write about them unfavorably. There are plenty of legal and nonlegal distinctions between organizations like the NAACP and the ACLU, which litigate in the public interest, and Thiel’s litigation on behalf of Hulk Hogan. To name just one, I think calling Thiel’s litigation “public-interested” is intellectually dishonest. (Thiel would disagree; he has characterized it as part of a broader campaign to protect online privacy.) For another, the goal here is limiting the financial impact of suits that target the institutional press because those suits run afoul of the free press clause, rather than limiting the free speech of individuals who finance litigation. There are a number of methods far short of a wholesale ban on third-party litigation finance that courts could use to protect the press.
All of this can (and must) be achieved while vigorously protecting public-interest litigation funding. Here are a few possible solutions to better protect media companies before and during defamation suits, as opposed to post-litigation, where — as Gawker’s experience shows — intervention may well come too late:
1. Fully finance legal help for news organizations.
An easy place to start? Harder’s targets. Throw money and resources to news organizations large and small that are defending against these suits, and continue to use existing free press organizations to connect other targeted organizations with legal help. We can’t expect the legal teams at The New York Times and The Washington Post to vicariously protect the whole of the free press; we have to provide more news organizations with more, and more vigorous, legal defense.
Yet money alone will lose a fight that is chiefly defined by how much of it sits on the other side of the equation. We need substantive legal changes, too.
2. Limit state power to end news organizations: Strengthen state and federal anti-SLAPP legislation and take steps to limit anti-press strategic litigation effectuated through tort suits.
Many of the most damaging claims against news organizations are brought in state court for the same reasons impact litigation is often more successful in those forums: Hometown plaintiffs, sympathetic juries, and if you’re lucky, as in the Gawker case, sympathetic judges. HBO is currently defending a similar suit in West Virginia state court after trying and failing to remove the case to federal court. Many states have enacted statutes that would quickly stop so-called Strategic Lawsuits Against Public Participation (SLAPP), but even where such statutes exist, they may not be enough. Cases like the one against Gawker may go forward despite an anti-SLAPP shield because the law imposes too high a bar on defendants to prove that the litigation brought against them is frivolous and aimed at silencing them, or otherwise provides insufficient defenses against suits designed to destroy news organizations.
Anti-SLAPP laws sometimes provide for fee-shifting where a defendant wins a SLAPP motion, so news organizations aren’t forced to shoulder massive legal costs to protect against malicious suits. These fee-shifting rules could be made stronger: One solution would be a fee-shifting rule that imposes the defendant’s fees and costs on the plaintiff not just where the defendant publication wins an early SLAPP motion, but also where the publication wins on the merits at trial or on appeal.
Awards to plaintiffs alleging personal injury torts might also be explicitly limited in cases brought against publications and involving published content. This might prevent strategic shopping for plaintiff-friendly forums, like those that helped kill Gawker and threaten HBO in West Virginia. Such a rule might limit judgments to a certain percentage of a news organization’s net worth or provide automatic stays of judgment on appeal in such suits so that news organizations can stay open while appeals are pending.
3. Yes, consider changes to litigation finance rules to protect the institutional press.
There is a simple, constitutional limiting principle to stop bad actors from financing these suits while protecting public-interest litigation from harm: limit any rule to the protection of the institutional press. Here the real challenge would be defining “the institutional press,” but I’ll leave that for another day. The definition would certainly encompass large, long-running news sites like Gawker. The challenge lies in defining a rule that would also protect proliferating online-only news organizations and solo journalists engaging in public-interest reporting.
Among other solutions, Professor Lili Levi proposed a litigation finance limitation in a recent article, “The Weaponized Lawsuit Against the Media.” Her rule would give judges discretion to require disclosure of third-party funders of litigation in discovery. Professor Levi also proposed a deterrent rule that would permit news organizations to pursue “litigation misuse” claims in cases targeting the media. But as she notes, “even though the threat of damages for litigation misuse theoretically could be worrisome for some third-party funders, billionaires with a mission like Thiel are hardly to be counted among that group.”
These solutions aren’t meant to be comprehensive nor to encompass all of the challenging questions these cases present. And admittedly, some of these solutions are dependent on a court willing to read in the First Amendment an explicit and unique protection for the institutional press. To the extent it is relevant, and perhaps it is to some Supreme Court justices, an originalist reading points in that direction. In the meantime, taking steps to ensure that lawyers and donors step in to defend not just free speech but a free press in suits like Thiel’s will challenge Trump’s promise to “open up the libel laws” and protect the press against attacks that threaten to destroy news organizations we need now more than ever.
The best solution to the fake news panic is real news, and real news is under assault. Vigorously defending suits like these with cash, legal help, and policy change should ensure freer journalists and more news organizations. Such change would indirectly challenge the public’s impression of a monolithic press, and hopefully increase the public’s confidence in their news — another resource left sorely wanting in Trump’s America.