There’s a lot of dumb, bad discussion on the internet. A big part of what makes said discussion dumb and bad is the confidence with which one or both parties to the conversation state their claims. In the bowels of the gargantuan, rage-filled paragraphs with which these digital combatants typically bludgeon one another, it is often difficult to find a single sentence inflected with self-doubt. Everyone is an expert, and everyone’s opponents are drooling idiots.
And in American internet discourse, on no topic are Americans more confident than – well, aside from sports and movies – and television and video games, I suppose, and religion, and parenting, and specialty diets, and jet contrails, and vaccines…
Well, this rhetorical framing isn’t working at all.
…And in American internet discourse, We the People are confident about many things, but particular, we are very, very confident about What Our Constitutional Rights Are. This, taken as a whole, is a very, very good thing. A free people should think about their liberties often, and be rightfully skeptical of policies which would infringe them. Fierce debate over where to draw lines when rights conflict is an essential element of good governance in a system of government like ours.
But the unfortunate side effect of this laudable hashtag fierceness is that people and pundits will often frame assertions about their Constitutional rights in the following, overly simplistic way:
“[Enemy person or entity] is [gerund form of violent action verb] on the [not my, THE] [Ordinal form of a number between 1 and 27] Amendment.”
This is almost always a dumb way to talk about rights for a few reasons, but the most important reason is that our rights, as cherished as they are, are basically never absolute. All of our fundamental rights come with qualifications and limitations that have been hammered out over the last 238 years.
Our freedom of speech is certainly no exception. The example everyone knows is that you can’t shout “Fire!” in a crowded theater. Well, technically this is wrong – you can’t make speech which “incites imminent lawless action,” and simply shouting “Fire!” might not per se…
… Anyway, more recently, people such as Nate Silver and Josh Marshall, who I normally agree with on a lot of things, have made a bold and alarming claim. They assert that by funneling ≥$10 million into Hulk Hogan’s invasion of privacy lawsuit against Gawker Media, a guy named Peter Thiel is trampling on the First Amendment. You see, in 2007, a Gawker article outed Thiel as gay against his will. Consequently, Silver et al see his shoveling metaphorical dump-truck-fuls of money into the Hulkster’s suit as both vindictive retribution against Gawker and, more broadly, a direct attack against the freedom of the press.
After all, if a billionaire can use his functionally unlimited finances to successfully sue a news organization into bankruptcy, haven’t we created a slippery slope where in the not-too-distant-future, the rich can use the courts to crush dissent and silence whistleblowers to protect their wealth and influence?
In a word, nah.
Now, Mr. Thiel, Silicon Valley billionaire and Donald Trump delegate is, by some accounts, an unpleasant individual both personally and in his politics. And the influence of wealth in politics and litigation is a worthy topic for discussion. But to turn a phrase from one Aragorn, son of Arathorn:
There may be a day when the freedom of the press comes crashing down, but it is not this day, and not this case. If this were the end of Se7en, the severed head of the free press would not be in the box. The slippery slope exists, but this case is not the run down which the bobsled of our civil liberties crashes and burns, with no charismatic Jamaicans to carry it home.
Seriously, this isn’t the case.
What Silver, Marshall, and others are missing in their analysis is a concern for the privacy rights of individuals. In other words, they miss the Constitutional conflict entirely. This lawsuit is not just about a rich person potentially suing a media outlet into oblivion. Like many others before it, this case represents a conflict between two fundamental liberty interests: the right of an individual to privacy, and the right we all have to free expression and a free press.
As applied, the “Hulkamania in the sheets” case is one that I would actually consider to be a pretty straightforward application of the “public interest/concern” test; that is, the standard which the Supreme Court promulgated to balance the rights of privacy and free press. A good law review article summarizing this complex, nuanced area of law can be found here. But to make a long and complicated story short, in its current form this test balances two main factors:
1) Whether the individual injured by the publication is a public or private figure, and
2) Whether the (true and factual) information published is of public concern.
Public officials and figures have a diminished sphere of privacy compared to private citizens, and matters of public concern have stronger Constitutional protections than matters of private concern. This makes sense – a public figure has assumed some responsibility/risk of public scrutiny, and the public has a strong interest in pursuing associated truths. For example, if a politician who campaigned as a social conservative is found to have had a series of torrid affairs (e.g.), a court would likely find that the public has a legitimate interest in the information, despite the fact that the offending behavior occurred in private. Indeed, given that the personal integrity of our elected officials is an important and necessary quality for voters to consider, any politician would likely not be protected in this scenario. The politician is a public figure, and the affairs are a matter of public concern.
In the case of Terry Gene Bollea, it seems equally clear that while Hulkster may be a public figure, the matter at hand is decidedly not a matter of public concern. For the uninitiated, these are the facts:
Bollea sued Gawker for uploading segments of a sex tape to their website for general public consumption/titillation/what have you.
That sex tape was recorded without Bollea’s knowledge by his “ex-best friend” with the apparent intent of blackmailing and extorting him.
Now, the public may have an interest in knowing that Bollea was being extorted, but this case doesn’t concern writing – it concerns the publication of the video itself, a non-consensually filmed sex act. I can imagine few scenarios in which a person has a greater right to privacy than this one. If Hulk Hogan had consented to the filming, you might have a shred of an argument that in doing so, he assumed some risk that the recording could become public. But he didn’t. I actually don’t know how it can get any clearer than this.
As Erwin Chemerinsky, legal scholar and patron saint of law students cramming for Constitutional Law put it:
I can imagine a clear rule: No videos of people having sex should be made public unless all of the participants consent. I think the media will survive the restriction.
So as reprehensible as I might find Peter Thiel’s politics or Hulk Hogan’s sexual indiscretions, the bottom line is that the First Amendment has never been interpreted (and never should be interpreted) as completely preventing the government from ordering the payment of damages to plaintiffs whose privacy has been tortiously interfered with.
Public figures do not give up their right to privacy always and forever – they give it up when the private, true facts being publicized are of public concern. It’s not a perfect, unabusable rule (there is no such thing), but it’s the right and necessary balancing test to protect liberty when two fundamental rights are in conflict.
The real problem with a case like this is not about attacks on the First Amendment, but rather the disparity that wealth has on the outcomes of litigation. It’s a problem we see all the way from traffic infractions and tenant eviction proceedings to massive class actions against environmental polluters and a hundred areas in-between. It is entirely possible, and a lot more intellectually responsible, to decry, e.g. the ability of obscenely-lawyered parties to drown less financially capable or unrepresented parties in discovery requests and motions, or the obscene gutting of the public defender system, without piggybacking specious claims about the death of the freedom of the press.
Nate, Josh: this is an area of law that deserves thoughtful consideration and truly case-by-case analysis. Saying that Peter Thiel is waging a war against the First Amendment is the opposite.