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Comment by darawk | Hacker News Reader

This is a poorly thought out argument. He isn't doing anything under-handed or illegal to destroy Gawker. He isn't fabricating evidence against them or paying off cops.

He's simply financing a non-spurious lawsuit, which the courts have decided was legitimate. This is exactly what I want the billionaires in our society doing.

He may be acting in his own self-interest, but it also happened to align with the public interest. And if the courts had decided against Hogan, it all would have been for nothing. There is no grand problem here. He isn't "destroying publications he wishes to silence", he's augmenting the resources of someone with a legitimate legal claim against the newspaper.

If you are putting forth the argument that merely financing a lawsuit is a corruption of the public trust, then we have much more serious problems with our legal system than Peter Thiel having it out for Gawker. Anyone should be able to fund any lawsuit that they want, and then the courts will decide if that lawsuit has merit. That's why we have courts in the first place.

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I don't know enough about the case at hand to comment specifically, but arguing that it is always fair to use "augmenting the resources of someone with a legitimate legal claim" as a tactic is not uncontroversial in the general case. Keep in mind that selectively punishing common legal violations is a common censorship tactic in many places. Consider this case in Mexico:

"On 12 March 2015, two journalists from MVS, Daniel Lizárraga and Irving Huerta, were fired after they used the station's brand name without permission in a newly-created website known as MexicoLeaks, which leaked reports on government corruption" - https://en.wikipedia.org/wiki/Carmen_Aristegui#Second_firing...

The legal case, of course, focused on "used the station's brand name without permission". But the actual reason for their dismissal was "a newly-created website known as MexicoLeaks, which leaked reports on government corruption".

Now, I am not saying the Gawker case is or isn't appropriate, but the intent of the parties matters, if not legally, then morally. When you are using a lawsuit, not to redress a wrong, but to attack a rival, the fact that the letter of the law is on your side doesn't make your actions ethical. This is specially true for governments, but there is no reason why it might not true for individuals as well (wealthy or not).

But what's the solution to this problem? Ban wealthy people from financing lawsuits? That's never going to happen. What about ban people with malicious intent from financing the lawsuits? You'll rarely be able to prove the intent.

We formerly had laws on the books banning this very thing.. Read into champerty:

http://qz.com/692312/billionaire-peter-thiels-attack-on-gawk...

Yes, that why I said "Ban wealthy people from financing lawsuits? That's never going to happen."

Reinstitution of maintenance/champerty laws will never politically happen. It means banning donations to the ACLU or EFF or NRA or union legal fund, etc. Good luck with that politically.

The kind of situation you mention is more likely to happen in situations where the laws are so numerous, anyone who is an enemy of the government can be legally imprisoned for something.

And while the US certainly is in that situation, this is clearly not such a case, because Bollea v. Gakwer was not arguing some obscure legal esoterica.

> arguing that it is always fair to use "augmenting the resources of someone with a legitimate legal claim" as a tactic is not uncontroversial in the general case.

In which specific cases is it illegitimate? The only answer I've been able to come up with is "when you don't like the person or cause."

I mean, if anyone wants to condemn the general case, please remember that you'll be condemning the EFF, ACLU and many similar organizations.

He could not have done anything at all to them if the cases were not meritorious. Now, there is a serious problem wherein access to the courts is effectively gated by wealth, but I don't think anyone can seriously argue that Gawker was unable to afford lawyers.

One can, however, point to their violation of court orders, along with their admission in court that they would publish sex tapes for anyone over 4, as evidence that they have no one to blame but themselves for their loss in court.

It depends why you are supporting the third-party lawsuit (which I agree is hard to prove one way or the other in court) and whether or not you do so openly versus secretly. In the case of the EFF and ACLU, their goal is not to swamp government agencies with lawsuits to the point they close down, or to hurt them economically, their goal is usually either: a) to help someone redress a wrong where they actually care about the wrong or b) to set legal precedent towards a particular policy they support.

I would say there is absolutely no problem if Thiel is funding the lawsuit because he considers Gawker publishing Hogan's tape to be unethical and wants to help Hogan redress that wrong. Although I would perhaps have wanted that disclosed as part of the trial. On the other hand, if Thiel would have funded any lawsuit against Gawker that had a chance, regardless of the other party or the particulars of the case, with the objective of forcing Gawker to shutdown or in order to punish them, then it can be a problem. As another comment pointed out, the hard thing here is that you cannot always tell one from the other. Perhaps strong funding sources disclosure requirements represent a reasonable improvement?

> It depends why you are supporting the third-party lawsuit

Right, so the real problem here is simply that people don't like him. The motive is something that exists only in his head--people can, and will, invent motives consistent with whatever their opinion of a person is.

Insofar as there's an argument that lawsuit funding should be open, well, I submit that perhaps the laws on that should be changed if this is truly at issue.

"Dear members of the jury, please be aware that the accuser is partly supported by third-party X, who has conflicts of interest Y, Z and W with the accused." is all I am asking for.

> Right, so the real problem here is simply that people don't like him.

For the record, I am far more pro-Thiel than I am pro-Gawker, although I base my judgement only on their public reputations. I am actually more concerned about the general idea than the specific parties in this case, and I think the result of the suit is correct, I just wonder about the means and the precedent that you can use a third-party's legitimate complaint to launch a punitive lawsuit.

That would tend to introduce biases in the case. Court cases are not supposed to be about the people, but the events that happened. Many aspects of the court system deliberately attempt to remove such information from jurors to avoid such biases.

That said, I tend to think it should be a public record outside of court at least.

In what way would that knowledge aid the jury in coming to an impartial verdict? Peter Thiel had and has nothing to do with the case itself. The facts and merits of the actual case are unchanged by his involvement and as such this information is immaterial.

Usually people bring civil suits in order to get justice for some wrong that has been done to them, not to get paid for being an instrument in the revenge fantasy of a billionaire. I think the jury certainly has a vested interest in knowing if the case is of the first type or the second. Society most definitely does.

In this case it's the first. What those of us who are looking at this case with more long-term consequences in mind are worried about is the second.

> Usually people bring civil suits in order to get justice for some wrong that has been done to them

The jury can decide whether some wrong has been done based on the facts of the case itself. If some wrong has been done, that's true regardless of who footed the bill. If no wrong has been done, that's true regardless of who footed the bill.

Judging cases based on who we do and do not like is something our justice system has been set up to avoid.

It's not about who we do and do not like. Civil cases have a very, very low standard of proof (not really proof at all - 50% + 1 means you just need to hint suggestively that a thing happened and collect your cash) and can be brought for essentially any reason. They are prone to abuse and often used vindictively, or as harassment, or as a tool for leverage in negotiations, or because a person was found not guilty. If we do as you suggest then the justice system is just acting as yet another mechanism for the wealthy and powerful to enforce their will upon the poor and powerless.

> He could not have done anything at all to them if the cases were not meritorious.

That's not true at all. One jury verdict (before appeals have been heard) plus a bunch of nascent suits is no proof of eventual merit. It could be that every single one of those cases eventually ends up getting dismissed, or being awarded negligible verdicts. But because Gawker may not be able to afford a full defense, they could well be out of business.

Long-time financial journalist Felix Salmon points out the issues here:

https://twitter.com/felixsalmon/status/735662530903826437

You also write like somebody who has never been on the receiving end of a lawsuit. They are a painful multi-year distraction and expense even if you win. My mom was on the receiving end of a lawsuit after a business deal gone bad. Eventually she won on all counts, and after he had finished reading his verdict, the judge gave both the plaintiff and the plaintiff's lawyer a royal dressing down for wasting the court's time. But the stress was incredible for the whole family, and we still had to pay the defense bills. It was not cheap.

And in Gawker's case, defending themselves against $10m worth of lawyering could well take them at least $10m no matter the outcome of the cases. News is not a business rolling in money; publishers go out of business every day even without being forced to burn unlimited millions. I can and will seriously argue that Gawker will be unable to afford defense lawyers long before Thiel will be unable afford lawyers playing offense.

> But because Gawker may not be able to afford a full defense, they could well be out of business.

They had lawyers. They had their defense. They can appeal, but they have no one but themselves to blame for going to court and asserting the right to publish stolen sex tapes of anyone over 4... and for violating a court order.

Inasmuch as there are problems here, they're with the legal system in general, not this suit specifically.

Rather, it reminds me more of the McDonald's hot coffee thing, where if they had been reasonable, they wouldn't have been hit so hard.

> Inasmuch as there are problems here, they're with the legal system in general, not this suit specifically.

To me that's like saying, "Inasmuch as there are problems with this massive data breach, they're with computer security in general, not the thief in specific."

Sure, there's a broader problem. But that doesn't mean that people willing to take advantage of a problem aren't also a problem. When many factors contribute to a bad outcome, it's worth looking at every factor when trying to fix the problem.

If that's the case, then everyone who presents a legitimate claim in court is part of the problem. It's not like there's some alternative to the legal system he could've used to address his grievances. Moreover, opting out of using the legal system does nothing to improve matters for others.

This was not some meritless nuisance suit, as should be evident by the fact that he won.

The broader problem is when people do things like spam settlement offers for less than the cost of defense, or the fact that the legal system is so expensive to operate to begin with. But none of these can rightfully be blamed on Bolea, so your analogy is simply faulty. There's no "abuse" here to begin with: he had a valid legal claim and won on the merits in court.

It is telling that as much as you wax poetic about abusing the court system, you failed to acknowledge that Gawker is the one who violated a court order here. I mean, if winning a meritorious case is what you count as "abuse" of the legal system, exactly how do you rate that?

I don't have an issue with Bollea. I have an issue with Thiel.

Thiel did not have a legitimate claim in court, but he is still using his billions to destroy a news organization he does not like.

I should say again that I am not interested in defending Gawker here; I think Denton's an ass. I think Nazis are terrible too, but I think it's worth defending both their and Gawker's First Amendment rights.

Right, but you'd have to rule against Bolea, who was wronged, to get to Thiel. All Thiel did was help Bolea. So if Bolea did nothing wrong, then you have nothing left to accuse Thiel of. You may not like his motives, but he didn't actually do anything but help someone wronged seek justice.

Inasmuch as this creates a chilling effect to keep people from publishing stolen sex tapes... oh well.

Thiel is willing to fund an effectively infinite number of lawsuits, and he is willing to lose large sums of money doing so. To destroy Gawker, none of the lawsuits have to win in the long term. The particular merits of Bollea's case are a red herring.

Also, this is clearly wrong: "All Thiel did was help Bolea." [sic] Thiel clearly imposed conditions. The suit was specifically structured to exclude the insurance company, reducing Bollea's risk-adjusted odds of a payout.

Bollea also turned down settlement offers, presumably at Thiel's behest. That clearly suits Thiel, whose goal is not helping anybody, but destroying Gawker. It's not clear it was really in Bollea's best interests; there are reasons most of these cases get settled. Far more of us now know about Bollea's adultery than if this had been quietly settled, which increases the reputational harm that's supposedly part of Bollea's reason for suing. And Bollea has had to actually go through a trial, which increases the emotional suffering that again was a putative problem.

Thiel doesn't care here about helping people. Or even helping people who have been harmed by tabloid journalism. If he did, he would have structured it as something like the ACLU: transparent donations to a group of independent lawyers with a stated purpose, who then get to pick their own cases on the merits. What he cares about is destroying Gawker. Which is why he spent a decade secretly plotting and executing a series of lawsuits aimed to driving the company out of business.

Bolea is the only one who could make all those choices. Those are his rights, and if he chooses to (or not to) screw Gawker over with legal strategy, that's his decision. Neither you nor I can make that for him and unless he complains about it, the entire discussion is pure nonsense.

I have no reason to believe that Bolea couldn't have funded the lawsuit himself. Bolea has no obligation (and no reason) to do things in a way friendly to Gawker. I find it highly believable that he himself asked his lawyers to screw Gawker over even if it got him less cash. More money != more justice. And inasmuch as this puts a chilling effect on publications that spy on people's private sex life, I honestly don't have a problem. There's no news here. Just perverts who want to spy on a celebrity.

You can't just go out and manufacture lawsuits--at least, not without getting yourself in trouble in court when they're found bogus. Someone has to have some kind of case or they get laughed out of court. He might be willing to fund suits, but they won't go anywhere and at least some of the time one can recover reasonable costs and attorney's fees on victory.

So call me when he funds something clearly meritless. The funding has no bearing on the rightness or wrongness of what Gawker did, therefore it should not affect the case outcome.

So yes, the merits of the suit are relevant. Funding tons of bogus suits is clearly different from helping Gawker's victims seek justice. And so far, evidence points to the latter.

You don't seem to understand that Thiel has funded more than one lawsuit. Of course, you also don't seem to know how to spell Bollea's name, so maybe you haven't been following this all that closely.

But yes, meritless lawsuits pursued because of personal agendas are an actual threat to First Amendment rights. Which is why anti-SLAPP statues have become necessary, and why 28 states have passed them in recent decades. As a NY Supreme Court justice wrote about strategic use of meritless lawsuits: "Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined." Thiel has found a new twist, where he can assault public participation without actually being a plaintiff. But he poses a very similar threat.

And yes, of course I can complain. Thiel is creating a systemic distortion around publishing the same way, e.g., tobacco companies funded systemic distortions of science. That the individual scientists have a right to free speech does not mean that I can't complain about how they use it. Or complain vociferously about the tobacco companies' damage to science, no matter how much they mewl about "fairness" and "seeing both sides". As a citizen, it's my job to make sure our democracy keeps working.

Have you watched any of the depositions or testimony in this trial? I feel like the lawyers and Denton were the only people from Gawker who were taking this case seriously. Time and time again the hostility and outright contempt coming from the Gawker side only served to undermine their case. AJ Daulerio specifically, but even his subordinates and Gawker management were trying to out draw the lawyers every time they were questioned. They did not speak plainly and they were evasive.

It's true that The Hulk had home field advantage here (and easily arguable that Gawker being from NYC hurt them even more than The Hulk being from Florida), but they did themselves no favors at all during the trial. It's like they gave up and sought to win in appeal.

Personally, I am definitely not interested in defending most of Gawker's behavior here. I think Denton is a heel, a reprobate, and frequently a fool.

What I do care about is that people recognize that using money to silence reporting, however lowbrow and however nettlesome, is a step on the road to oligarchy. The 1st Amendment is a cornerstone of our democracy. Thiel here isn't trying to litigate an issue of concern to him. His only goal is to destroy a publisher, regardless of the merits of plaintiffs' complaints.

Now there are plenty here who are fine with a little oligarchy, and some who would like quite a lot. If they want to openly argue for that, great. And plenty of people, me included, have contempt for Denton, and who will enjoy his eventual comeuppance. But as much as I'd like to see that, I don't want to see it come with a major chilling effect on our already-mostly-toothless tech press.

I'm not making a value judgement on the merits of the case... what I'm saying is they failed to defend themselves adequately.

This was a winnable case and if they had done a better job we wouldn't be having this conversation.

Ah, interesting. Sorry I misunderstood. Thanks for clarifying!

You're right that the lack of "loser pays" for legal fees in these cases is disturbing. But so far there's been precisely one case, and I subjectively claim (as have legal experts) that it raised important and non-frivolous legal questions that deserved to be answered, and my opinion is that the jury reached the correct verdict.

> On 12 March 2015, two journalists from MVS, Daniel Lizárraga and Irving Huerta, were fired after they used the station's brand name without permission in a newly-created website known as MexicoLeaks, which leaked reports on government corruption

They were fired. What does that have to do with legal cases?

He is very much doing something under-handed to destroy Gawker.

Gawker owns insurance to decouple financial harm from existential harm in the case of lawsuits like these. The civil system expects that victims who are harmed will try to maximize expected payout in case of a suit. If Hulk's legal case is indeed robust, he should have included every possible harm in the suit to maximize his payout.

The decision to structure the suit in a way that excludes Gawker's insurance coverage is an under-handed technique which turns a civil suit into an indirect tactic to destroy Gawker. It is underhanded because, at the very least, it violates an expected principle of the civil suit system. This signals that the goal of the suit is not to compensate Hulk for damages, but to put Gawker out of business.

Right, exactly - question is how aware of this was Hogan? If he was aware, it's still not great. If he wasn't, that raises significant questions about SLAPP from Thiel, if not malpractice from his lawyers (whose direction are they fallowing, their apparent client, or his financier?).

If a lawyer explained such a choice to me I'd likely choose to take the insurer out of the picture too. Principles.

"Your Honor, the actions of Gawker caused emotional distress and irreparable damage to the earnings capability of my client, and thus we seek an award to compensate him for this loss."

"Your Honor, we are dropping this claim here, but keeping all the rest intact."

"You realize that this means the defendant will have little to no ability to compensate you for the damages you claimed and sought and stated caused you duress?"

"... Yes... Your Honor."

If you state it's about compensation for lost potential earnings, and such, and say you need to be made whole, then waive away a large part of your practical ability to be made whole, at what point does that become disingenuous?

>It is underhanded because, at the very least, it violates an expected principle of the civil suit system. This signals that the goal of the suit is not to compensate Hulk for damages, but to put Gawker out of business.

I'm genuinely curious, where did you learn that the only goal of the civil suit system is to compensate the damaged party? It would seem odd to me that punitive damages would be a thing that exists, distinct from compensatory damages, if they're not meant to be a part of the system. I don't see how there was an "expected principle" of that at all.

>Punitive damages or exemplary damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. Although the purpose of punitive damages is not to compensate the plaintiff, the plaintiff will receive all or some portion of the punitive damage award.

Basically any influence by 'extremely wealthy' is automatically viewed as an attack on 'freedom'. It's a straw-man political argument.

I think the influence that money has on our judicial system is a big concern. The threat of frivolous legal action has a very real chilling effect on freedom of speech. The legal system in the US disproportionately favors the wealthy and this is a legitimate concern. I think that in this case Thiel is warranted here, but no I don't like that wealthy people get to sue people to get their way. The costs of litigation should be minimal and the outcome unbiased by money. However, that's not the case and it's a travesty. I don't think this is simply a case of hatred for the "extremely wealthy."

No one gave him the authority to control speech. He has money, but we didn't give him the authority to do this. I honestly hope you are wealthy and this viewpoint supports some sort of authoritarian self-interest. Or you're not American I guess.

he isn't "controlling speech". the courts are, by rendering judgement on whether gawker did something that warrants some penalty.

Man hours have a direct impact in court cases. Therefore money is a thumb on the scales of justice.

this is (if i take "man hours" to mean resources spent on case preparation) an emergent property of for-profit mercenary lawyering.

that being said, sometimes the thumb is doing good work - or at least, doing necessary work in pursuing positive outcomes.

Yes, influence of extremely wealthy should ideally be limited to financial, and in consumption, instead of in information and politics.

He isn't only funding lawsuits - but is asking to be judged by the standard of a philanthropist who supports libertarian values, freedom of the press and justifies his actions against Gawker as so.

That part is clearly bullshit.

Given that our courts are publicly funded and have limited bandwidth and throughput, your suggested solution faces serious resource constraints.

Additionally, Thiel is altering the normal course of how these cases would have gone and specifically notes that here: http://www.nytimes.com/2016/05/26/business/dealbook/peter-th...

It's one thing to say that funding a lawsuit is fine, and another thing to say that its fine to target an organization to ensure that every grievance against them does not settle out of court and goes to trial.

My issue is that by selectively choosing what he does and does not finance, he is influencing things in his personal favour.

I would far prefer the bllionaires in our society financing a big pool of money that then indescriminately funds the 'little guy' against the big corporation, so that the bias of money is removed from our legal system. Instead, this current process of being able to selectively target lawsuits means that the rich can indeed influence things in a biased fashion via their money.

I'm all for Thiel to have it out with Gawker, but should that not be on his own valid legal claims? By funding this lawsuit in particular, he's negatively impacting other suits by omission.

Basically, if money can't be kept out of the legal system then the money shouldn't be able to selectively enter it either, because either result produces a bias of the optimal situation where two equally strong legal teams debate a case in front of an impartial judge on its merits.

The moral problem I see with this, is that actually pursuing a lawsuit is so inordinately expensive, that someone like Hulk Hogan, who presumably earned some cash in his life, can't pursue it on his own.

> but it also happened to align with the public interest.

That is debatable and also the problem. What if it didn't align with the public interest? Is it ok then?

Yes. It is always ok to finance a lawsuit. The premise of our legal system is that optimal adversaries debating in front of an impartial judge produce the best possible outcome.

If Hogan wasn't able to finance the lawsuit on his own, that would be the perversion of justice. But if our court system operates as it should, and there is no indication to my knowledge that it has not in this case, then billionaires funding legal teams should only enhance the level of justice available to all.

If the above is not true, then that is a problem with the court system, not a problem with people funding each other's lawsuits.

It's not to say that this is what happened here, but our legal system disagrees that it's always OK to finance a lawsuit (see SLAPP).

Certainly, but a characteristic of SLAPP is the plaintiff hasn't got a solid case, their purpose is to drag legal procedures long enough to bankrupt their target.

Hulk Hogan won this lawsuit fair and square.

Of course, I was merely addressing the claim that it's always OK to fund lawsuits.

That is not true. Our legal system views some lawsuits as themselves being illegitimate attempts to silence people by forcing them to defend against frivolous, meritless lawsuits (see SLAPP). It does not view lawsuits as SLAPP-worthy merely because based on who's paying the bill.

Spending lots of money on lawsuits has the effect of increasing the demand on lawyers (making them more expensive for other people) and courts (making them more slow for other cases).

The resources the justice system spent chasing Thiel's personal vendetta could have been used for cases other people think are more important. That's why other people complain about it.

Larger crimes don't excuse smaller ones, which is also known as the Fallacy of Relative Privation. I'm also having trouble figuring out (or even learning) what public interest is served by this result? Does a rich guy shutting down a publication enter into it at all? I think it does.

The problem with this argument that this is asymmetric. Most ordinary people will not have problems like Peter Thiel had, since outing them has no entertainment value. This is sort of a rich-only problem. Most ordinary people have problems like being screwed by their health insurance (denied claims), bank, some other big company, etc. I had for example a case when my business accounts got suddenly frozen by Wells Fargo for "unauthorized access". They would not tell me who accessed them, what IP, any specifics. I had to renumber all 10 of my personal and business accounts (huge problem for a business with receivables and ETFs), and in the process they lost all transaction history which created a huge accounting burden. When I expressed concerns, they addressed me to their "legal department", that employs a couple of hundred lawyers full time. Would Peter Thiel fund this?

I'm certainly not rich or famous in any stretch of the imagination, yet Gawker felt inclined to personally slander me multiple times. So implying that only folks like Thiel have a reason in stopping the bullying that they do isn't accurate.

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