I just started reading this Buzzfeed article about Facebook board member and Trump backer Peter Thiel’s relationship with racist fringe groups. Thiel seems like an outlier in Silicon Valley because of his high profile support for Trump. But he is actually part of a rising tide of neo-authoritarian thought in the tech world which argues that democracy has failed and must be replaced. This reminded me of something I’ve been coming back to again and again with greater clarity and understanding its greater significance as the years have gone by.
At some point in 2015 I was sitting at my desk in TPM’s New York office’s talking with a good friend who worked at Gawker. The Hulk Hogan lawsuit had been on the horizon for a long time before it actually came to trial. In preparation Gawker founder and owner Nick Denton had recently cut some deal with a Russian oligarch to give Gawker deep enough pockets to withstand an adverse judgment which they anticipated and hoped could be reversed on appeal. My friend was walking me through all of these developments. He was very much preaching the Hulk Hogan lawsuit gospel. The future of freedom of the press, he told me, was on the line with Gawker’s fate.
I nodded in agreement with each point. As a publisher and strong supporter of press freedom, I supported Gawker’s position publicly and privately. And yet tucked away in my head part of me was saying, “C’mon. You published a sex tape.” Publishers see every libel suit and think there but for the grace of God. In this case, I knew to a certainty that this particular libel situation was not one TPM ever would have found itself in.
This was part of the strange beast that Gawker – and the stable of sites it created – was. At various points founder and owner Nick Denton defiantly insisted that no one should confuse what Gawker did with journalism. Yet it eventually produced some of the most path-breaking journalism of the early 21st century and spawned a vast community of journalists who have continued to produce work of the same quality. It was loud, invasive and often shameless. Frequently it just published things about the rich and famous just because it could and they wanted to. That was the background to the story that eventually led to its downfall. If I remember correctly they later argued that Hogan sexual prowess and penis size became newsworthy when he bragged about them publicly.
This isn’t some recantation or statement that I was wrong because my position was always in support of Gawker’s cause and case. But I did not realize that this case – comic and absurd in so many ways – would be the most damaging and important press freedom case in decades. When my friend said that the freedom of the press was on the line in this case, he was 100% right. Just how right he was only became fully clear to me over time.
As you may know, Gawker lost the suit – something that was not unexpected given the judge and the venue. There’s a good chance Gawker would have won on appeal. But they had to come up with the money immediately. The site didn’t have the money – I was never quite clear on what happened with the Russian oligarch’s deep pockets. So it declared bankruptcy and the company and sites were sold at auction. The sites have lived on in an increasingly zombie existence under a succession of increasingly sharkish owners.
What we learned later was something people at Gawker apparently suspected, or had some inkling of: that Hulk Hogan was just a stalking horse for Peter Thiel.
It was Thiel who funded and controlled the lawsuit, bankrolled with his limitless cash, to drive Gawker out of existence.
He’d been embarrassed by Gawker’s reporting in the past. He wanted revenge.
He got it.
You may not have cared for Gawker but its demise has cast a pall over many publications you do care about. All that stuff about a chilling effect? All true. Other publications like Rolling Stone have seen major libel or defamation judgements – often for genuinely deeply flawed reporting. But very, very few have been driven out of business over it.
If the case really had just been Hogan suing out of anger and embarrassment perhaps it would have ended there with impact and significance not much beyond Gawker itself. But Thiel had greater ambitions. And Donald Trump had a lifetime of secrets to hide, money and starting only a few months later unimaginable power.
So of course it didn’t end there. The lawyer Thiel found for the job was Charles Harder. It was Harder who adopted a novel legal strategy which destroyed Gawker, an end-run around much free speech jurisprudence. Before the Hogan suit, Harder’s gig had been representing wealthy celebrities in invasion of privacy suits – ones in which the defendants are seldom terribly sympathetic characters. The Hogan suit was also nominally an invasion of privacy case. But the formal similarity betrayed a critical difference in purpose. And from Gawker onward Harder shifted his business to helping the very powerful overawe and destroy news publications. And he found a new number one client: Donald Trump.
And not just Donald Trump but Melania Trump, Jared Kushner, Roger Ailes. Harder became the go-to lawyer for the Trump family and coterie around him threatening ruinous lawsuits and trying to prevent the publication of books. It was Harder who went to court nominally on behalf of Trump’s late brother Robert Trump to prevent the publication of niece Mary Trump’s recent memoir about the Trump family. Notably, the Trump campaign’s biggest legal expenditures hasn’t been to campaign or campaign finance lawyers – how campaign’s normally spend money on lawyers. It’s been to Harder’s firm – to sue publications as part of an organized strategy of disciplining critical coverage.
Has all of this had any real effect? Many of these suits and threats of suits – some against The New York Times and CNN – have been obviously frivolous. Some never progressed beyond high profile threats and press releases. But is it more than that?
I can tell you: yes. It’s made a big, big difference, a veritable sea change in First Amendment law. How do I know this? Partly just as someone who follows the journalism because but much more as the owner of a news publication and as someone who frequently talks to libel lawyers to evaluate risk.
In the libel, journalism and risk world there’s the pre-Gawker suit world and the post-Gawker suit world. Some of difference is actual changes in case law. But it’s not mostly that. It’s also the climate of uncertainty created by the outcome of the Gawker case – a major publication really was sued out of existence without even the ability to appeal the judgment or get a review on the law. The case was funded by a billionaire who wanted to retaliate for coverage he didn’t like. It is also because of novel legal strategies and the increased willingness of the extremely powerful to use the courts to get the press to heel.
It is the willingness to do it, the growing social acceptability of doing so and the proof of concept that it works. It is all these things combined with the social sanction and proof of concept of the President of the United States leading the way bringing these suits, while serving as President. It is a mission Harder has eagerly embraced, mostly on behalf of Trump but others too. Before Trump it goes back to Peter Thiel, a man of immense wealth and power who embraces far right white nationalist groups and global authoritarianism generally.
These particulars all fit together into a broader story that is central to the politics of our time: Trump, Thiel, the ocean of NDA that flows through the Trump world and has begun to infiltrate the government itself, the faltering jurisprudence of free speech. It overlaps with the another phenomenon we’ve discussed: the belief that the very powerful need not more scrutiny in public life but more protections from scrutiny. It is part of the cultural apparatus of wealth inequality: the hyper-rich and hyper-powerful need greater protections from public scrutiny precisely because their outsized power invites so much of it. We get a glimpse of this in cases of like that of legendary Silicon Valley venture capitalist Tom Perkins who in 2014 called the rising critique of income inequality as the beginning of a “progressive Kristallnacht” against the 1%.
Trump, Thiel, Harder, Perkins, white nationalist fringe groups, authoritarian intellectuals – they’re all together for a reason. They fit into a common story, a common set of aims. They are a central element of the politics and political culture of our times. Thiel is at the center of it and his victory over Gawker has a significance and impact far greater than many realize.