January 19, 2020

Gawker and lawsuits: Press freedom faces a double threat

One of the most dangerous trends in American life is the increasingly successful attack on the already weakened news media, a trend heightened by Donald Trump’s threat to sue journalists and a billionaire’s in shutting down the scandal site Gawker. 

It’s a threat to media outlets large and small, particularly those with limited financial resources, including community newspapers and ethnic publications, such as this very publication, the Jewish Journal. 

Trump, the Republican presidential nominee, made his intentions clear in a speech to a rally in Fort Worth, Texas, in February: “One of the things I’m going to do if I win, and I hope we do and we’re certainly leading, I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace, or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”

What Trump is advocating is weakening the constitutional First Amendment protection of freedom of speech. Specifically, he’s against the Supreme Court’s 1964 decision in New York Times vs. Sullivan. That momentous ruling greatly increased media freedom by demanding that public officials fighting a critical story must prove actual malice. Malice means a story was published with the knowledge that it was false and that the publication recklessly disregarded the truth. Later, the decision was expanded to include lawsuits by public figures. 

For more than half a century, Sullivan remains the great protector of freedom of the press. Trump’s threat to dismantle it, presumably with his new Supreme Court, is one of the great dangers of his presidential campaign.

Peter Thiel, the successful rich Silicon Valley investor, came at press freedom from another angle. Gawker was an uninhibited internet site that ran gossipy scandal stories on the famous and the little known, humiliating many of its subjects but sometimes striking its version of gold, as it did by pushing the Bill Cosby story. In one story, it wrote that Thiel was gay. His preferences were known in Silicon Valley, but Thiel, who happens to be a Trump supporter, said Gawker had “ruined people’s lives for no reason.” He began an all-out underground campaign against Gawker.

His chance came when Gawker ran a video of well-known wrestler Hulk Hogan having sex with a woman. Thiel hired an aggressive and talented lawyer for Hogan, whose real name is Terry G. Bollea. The wrestler sued Gawker for invasion of privacy. A Florida jury awarded Bollea $140 million, a judgment that put Gawker out of business.

What, you might ask, does a sensation-mad gossip-scandal site have in common with respectable journalism, including publications like this one? Quite a bit.

The Jewish publication The Forward provides a possible example. The Forward, founded in 1897 by socialists, including famed editor and novelist Abraham Cahan, has long focused attention on slumlords, dating back to the packed tenements of New York’s Lower East Side. In 2010, Rabbi Jill Jacobs wrote an opinion piece, “When The Slumlords Are Us,” in which she named three of them from a list first published by The Village Voice.

Let me play law professor for a moment and ask a hypothetical: What if the new Trump Supreme Court wiped out the Sullivan press doctrine and made it easy to win a libel suit? Or what if more deep-pockets Peter Thiels appeared, ready to finance lawsuits against publications they hated. 

In other words, what if one of those slumlords wanted revenge against The Forward, as Thiel did in the Gawker case?

Think of today’s media proprietors or the owners of the thousands of websites and small community papers around the country, which play watchdog in their towns and cities. Before they go after a rich big shot, they might very well ponder these words by Nick Denton, the Gawker founder:

“Peter Thiel has achieved his objectives. His proxy, Terry Bollea, also known as Hulk Hogan, has a claim on the company and my personal assets after winning a $140 million trial court judgment in his Florida privacy case. Even if that decision is reversed or reduced on appeal, it is too late for Gawker itself. Its former editor, who wrote the story about Hogan, has a $230 million hold on his checking account. The flagship site, a magnet for most of the lawsuits marshaled by Peter Thiel’s lawyer, has for most media companies become simply too dangerous to own.”

With Trump determined to overturn the Sullivan decision, and more rich people emboldened by Thiel’s success, the news media faces a dangerous threat. That is particularly true for outlets large and small that practice accountability investigative journalism — finding out who is to blame for misdeeds by government, businesses, charities, religious organizations and other powerful institutions.

With staff reductions due to plummeting circulation and advertising, media outlets are already pulling back from this kind of journalism, as comedian John Oliver pointed out recently on his TV show in his devastating satire on how newspapers are chasing stories about cute animals rather than scandals at city hall. 

An editor or owner, looking fearfully at the bottom line when a reporter races in with evidence of a scandal, is likely to say, “It’s not worth it.” That will be the new credo of journalism, replacing the still-stirring words that journalist-humorist Finley Peter Dunne wrote more than 100 years ago: “The job of the newspaper is to comfort the afflicted and afflict the comfortable.”

Bill Boyarsky is a columnist for The Jewish Journal, Truthdig and L.A. Observed, and the author of “Inventing L.A.: The Chandlers and Their Times” (Angel City Press).