How the Supermarket Tabloids Stay Out of Court (1991) | Hacker News Reader

How the Supermarket Tabloids Stay Out of Court (1991)

nytimes.com

49 pointsexolymph53 comments

What's ironic about Thiel attacking Gawker for, supposedly, being bad tabloid journalists is that as a Trump delegate he is supporting someone that has frequently polluted our highest political discourse with tabloid-level internet conspiracy theories. To Thiel personal smears are more troublesome than a well functioning democracy. But then he has in the past already expressed his contempt of democracy so I guess it should not come as a surprise.

Thiel's approach is scary. He is basically proving that he doesn't have to win - he just has to consume enough of a media company's money to force them out of business.

Many major stories that made it big in the national news start off as a local or small paper doing the initial reporting. (For example the Flint, Mi lead water) These papers have such tiny budgets that they can easily be silenced.

> He is basically proving that he doesn't have to win - he just has to consume enough of a media company's money to force them out of business

That's theoretically true - after all, it's the same way patent trolling works. But he hasn't actually proven that yet, since he did win a juried verdict (with punitive damages, on top of that).

That's about as clear-cut a decision as our legal system can provide (before getting to the appellate level).

To be fair, this is the only one of his suits against Gawker that he's disclosed having funded, so it's quite difficult to judge their overall merits.

Did you read the article? That is how tabloids end up printing false stories about people and defending themselves.

How is this any different than Gawker using the legal system as a defense strategy? They print whatever they want, and good luck suing them, they'll wear you out in long legal battles with their deep pockets.

The only difference this time is they picked on a bully with bigger pockets.

I've seen this question asked about a dozen times now on HN and nobody is even attempting to answer it.

It's all handwaving madly so the flaws in their reasoning aren't spotted. That remains my position until a good argument gets presented that isn't all over the place with logic leaps.

That is the whole point of punitive damages though. The big awards are a punishment of the person or company which lose.

Plenty of environmentalists would be happy if an oil company got sued into bankruptcy over a spill.

It's the way of the courts, really.

I don't get people's need to constantly bring up Thiel's support for Trump, as though it singularly defines him and everything else he does. In this case, his suing Gawker has nothing whatsoever to do with him supporting Trump. Those are 2 completely independent issues, and should be treated as such. Someone could support Trump for a whole bunch of (stupid) reasons that have nothing to do with libel lawsuits, and it's time we stopped conflating these 2 unrelated topics.

Thiel suing Gawker has is absolutely related to his Trump support. Trump is the presidential candidate who wants to "open up those libel laws" to make it easier to sue the press. It is certainly notable that one of Trump's prominent supports has pushed the boundaries of existing laws in the service of similar goals.

In the other direction, Thiel's Trump support suggests that his funding of Gawker lawsuits isn't just about Gawker and his history with them (which is how many people defend Thiel's actions, describing Gawker as an unusually bad actor that is reaping what they sowed). Instead, it suggests that the Gawker lawsuits are indicative of his broader attitudes about how the press should behave and what consequences there should be for press that doesn't.

> Thiel suing Gawker

I think this tends to be papered over too much with "yeah yeah, it's the same thing", but Thiel is not suing Gawker.

Thiel is bankrolling a lawsuit against Gawker related to its publishing videos of someone being naked without their consent, an issue that in the case of Erin Andrews led to a $55 million award and widespread public sympathy (http://abcnews.go.com/US/erin-andrews-jury-set-deliberate-75...).

Whatever you feel about the Hulk Hogan lawsuit against Gawker is wrong, ask yourself if you would you would feel the same way in the Erin Andrews case.

It has been hypothesized that our brain's moral systems are a highjack of systems related to hygiene.

I think this phenomenon shows it nicely. Since Thiel has "touched" Trump, he is now "unclean" in the minds of people who perceive Trump through their morality circuits.

Yes. And they will proceed further along those lines later on by monitoring all his associations.

Nick Denton said as much "The details of your involvement will be gruesome if you continue suing us".

Sounds like a threat to me.

Thiel surely knows this but he's no coward. If I was him I'd have kept everything a secret. He must have weighted the probability of getting his funding discovered and then attacked by the Media Tribe against the (positive) deterrence factor plus being researched by (negative) private investigators i.e. blackmail efforts.

It is ironic that the chilling effects argument would push him into more clandestine arrangements (it's a sinister cabal!). You can't make people happy these days. Far from a billionaire having more rights than the average person, the Media is really arguing they have less rights than the average person i.e. He shouldn't have funded Hogan openly or privately; that is not at all. Presumably if the average person decided to pull together a public fund for their hero Hulk Hogan it wouldn't be a problem.

Nick Denton is not a very astute person. Just like in an ecosystem the foxes can't meaningfully 'win' against the rabbits. Some of the rich and powerful I know of would just have outright killed him for toying with them. Denton is depending on the morality of the people he attacks and that is not a very smart thing to do in the long run. That's not me being bombastic or making weird implicit threat. It is an observation of the reality for journalists around the world, the CPJ knows that very intimately. The irony is that if Thiel wasn't a supporter of the CPJ, didn't have strong convictions, then perhaps he'd be less likely to get attacked by the likes of Gawker.

If Gawker ever went after real targets Denton would be joining something like the Ecuadorian Embassy. That is a fact.

That's why we should be supporting real journalists and not this poser.

Thank you for the psychoanalysis. However, I made a specific, logical point about how in another context Thiel is OK with the use of false facts to manipulate the public. It was not a moral or emotional argument.

> I don't get people's need to constantly bring up Thiel's support for Trump, as though it singularly defines him and everything else he does.

It's an ad hominem fallacy: Thiel supports Trump, ergo his assistance to Hulk Hogan is foolish.

I made a point and you guys chose to ignore it in order to say my argument was a fallacy.

The point was that as a Trump supporter Thiel is OK with using false conspiracy theories to manipulate the public.

> Trump ... has frequently polluted our highest political discourse with tabloid-level internet conspiracy theories.

If I'm reading your statement correctly...

I've listened to some of Trump's speeches, and also the mainstream media's constant misrepresentation of them.

Would you mind sharing how Trump is polluting our "highest political discourse"?

http://www.huffingtonpost.com.au/entry/9-outrageous-things-d...?

http://www.businessinsider.com.au/donald-trump-birther-obama...

http://www.theguardian.com/us-news/2015/jul/02/donald-trump-...

http://edition.cnn.com/2015/09/18/politics/trump-obama-musli...

http://thehill.com/blogs/ballot-box/gop-primaries/268472-tru...

http://www.businessinsider.com/donald-trump-conspiracy-theor...

The tabloid CYA trick that jumped out the most to me -- sometimes directly visible on the covers -- is to attribute an allegation to "Source" (often in much smaller print than the allegation itself, unsurprisingly). For all I know, that "source" could be an anonymous letter from one of their own employees.

If you read Ryan Holliday's book, you'll see that "source" is often the target's own PR team.

I think another trick of longstanding tabloids like the enquirer is that they almost deliberately undermine their reputation by publishing a lot of crap (aliens, etc) while mixing the better sourced stuff that causes celebrities fits. I think this is how they have been able to exist for so long - celebrities with thicker skin can laugh it off, hah, those crazy tabloids - and far less often we see someone actually try to sue the tabloids for an article.

example of "real" news being broken by a tabloid:

https://en.wikipedia.org/wiki/John_Edwards_extramarital_affa...

With regards to the Gawker case - I'm of the opinion that it doesn't matter that Peter Thiel funded the lawsuits. If it were a more "noble" cause (litigation against polluters, cigarette manufacturers, civil rights etc) then no one would question massive outside funding. And, Gawker did lose the case in court, on the case's merits. Gawker seems to be hoping they can have it overturned on appeal if they change the subject to Peter Thiel instead of their own scummy behavior. Not to mention Nick Denton's shady tax evasion while criticizing tech businesses for the same:

https://pando.com/2014/07/25/gawker-no-longer-even-trying-to...

I can't believe the standard for libel is so high. You can publish anything you want as long as you are stupid or ignorant enough to believe it?

I believe that's the concept of "free speech" in a nutshell.

That's NOT exactly the legal standard. Before the separation of the American colonies from Britain to form the United States, there was already a defense of truth to libel claims. Say what is true, and libel is not much of a worry to you. (But you can say true things and still be civilly liable for disclosure of trade secrets, or for harming a person's "right to publicity," depending on the facts of a case, and you can be criminally liable for espionage or the like.)

After the independence of the United States, United States law on defenses against libel claims developed some more, so that press reporting about public officials (especially) and even "public figures" (people who are already well known in public activities) can be protected even if reporters make false statements by mishap. For public officials, since my early childhood, the standard has been that "actual malice" (which doesn't exactly mean malice, but complete disregard for attempts to check the factual statements) has to be shown for a journalist to be liable for libel. In some other countries (notably Singapore), libel law can be used to suppress dissent. United States courts have not wanted libel law to work that way.

The practices of tabloid journalists, of course, are despicable, and they are examples of abusing legal precedents originally meant to protect more factual and more fair journalism.

http://www.medialaw.org/topics-page/defamation-faqs

My very limited experience with regular journalism and tabloid journalism is that tabloid journalists are scrupulously factual and accurate, while regular journalists more or less write whatever they want without much regard to whether it is true or even coherent. This makes a great deal of sense if you think about the environment of legal risk in which the respective categories of journalists exist: regular journalists are essentially engaged in stenography for the powerful, flattery for everyone, and providing readers with the cheap illusion that they understand things they don't; meanwhile, tabloid journalists are engaged in viciously attacking the famous.

In short, where you write "protect more factual and more fair journalism", you should have written "protect less factual and more favorable journalism".

>tabloid journalists are scrupulously factual and accurate, while regular journalists more or less write whatever they want without much regard to whether it is true or even coherent

Do we exist in the same universe? When I visit the National Enquirer website, the current headline is "Hillary Clinton Caught With Lesbian Lovers". Meanwhile, the headline on the New York Times is "Cam Trump Win? Here Are the Decisive Battlegrounds".

> "Hillary Clinton Caught With Lesbian Lovers".

Isn't that just like her? And of course she didn't come out for gay marriage until 2013. What a hypocrite.

In the span of about 3 weeks the National Enquirer said that Prince died of Suicide, Accidental Drug Overdose, Aids, and Suicide because of Aids. The Same publication declared 3 separate causes of death for the same person in back to back to back issues, and yet people still read and believe this fucking garbage.

Perhaps parent comment was thinking of a different tabloid, or a different country with stronger libel laws.

I was eventually able to find the story you mention, although I couldn't get the Enquirer's site to deliver it to me; I had to depend on the Google cache. There's a possibly more stable copy of the article at http://www.ronpaulforums.com/showthread.php?495943-National-..., followed by the kind of worthless tripe comments you'd expect from the kind of people who read gossip tabloids; there's more background at http://gawker.com/why-is-the-internet-obsessed-with-photos-o....

It might turn out that the Enquirer is wrong, but I see no reason to assume that they are; they've been right about a lot of apparently implausible gossipy stories in the past. I also feel kind of dirty for even considering the question, since obviously whether Clinton has sex with women (lesbians or otherwise) is a private matter.

> Before the separation of the American colonies from Britain to form the United States, there was already a defense of truth to libel claims. Say what is true, and libel is not much of a worry to you.

I had never heard this before. Consider this summary of the Zenger trial of 1735 here ( http://law2.umkc.edu/faculty/projects/ftrials/zenger/zengera... ):

> The trial opened on August 4 on the main floor of New York's City Hall with Attorney General Bradley's reading of the information filed against Zenger. Bradley told jurors that Zenger, "being a seditious person and a frequent printer and publisher of false news and seditious libels" had "wickedly and maliciously" devised to "traduce, scandalize, and vilify" Governor Cosby and his ministers. Bradley said that "Libeling has always been discouraged as a thing that tends to create differences among men, ill blood among the people, and oftentimes great bloodshed between the party libeling and the party libeled."

> After a brief statement from John Chambers, Zenger's court-appointed attorney, Andrew Hamilton rose to announce that his client--sitting in an enclosed box in the courtroom--would not contest having printed and published the allegedly libelous materials contained in the Weekly Journal and that "therefore I shall save Mr. Attorney the trouble of examining his witnesses to that point."

> Following Hamilton's surprise announcement, the prosecution's three witnesses (Zenger's journeyman associate and two of his sons) were sent home, and there was a long silence. Finally, Bradley spoke: "As Mr. Hamilton has confessed the printing and publishing of these libels, I think the Jury must find a verdict for the king. For supposing they were true, the law says that [sic] are not the less libelous for that. Nay, indeed the law says their being true is an aggravation of the crime." Bradley proceeded to offer a detailed and generally accurate account of the state of law on seditious libel of the time, supporting his conclusion that the truth of a libel is no defense.

> Hamilton argued that the libel law of England ought not to be the libel law of New York

> His arguments might have been well-received by jurors, but Hamilton had almost no law to support his position that the truth should be a defense to the charge of libel. Not surprisingly, Chief Justice Delancey ruled that Hamilton could not present evidence of the truth of the statements contained in Zenger's Journal. "The law is clear that you cannot justify a libel," Delancey announced. "The jury may find that Zenger printed and published those papers, and leave to the Court to judge whether they are libelous."

(all emphasis is mine)

There's not much common ground between your position that "there was already a defense of truth to libel claims. Say what is true, and libel is not much of a worry to you" and the more conventional position that under English law of the time "a libelous statement's being true is an aggravation of the crime".

Zenger's case is the case I was referring to, and it happened well before the independence of the United States.

And you'll notice that the law was very clear that truth was not a defense to libel. Evidence of truth wasn't even admissible in court, because it wasn't relevant to whether libel had been committed.

Zenger's lawyer explicitly asked in court for jury nullification. That he got it didn't change the law.

It's intentionally high for a reason. It keeps someone from litigating against you because they don't like what you said and they have money.

The best defense is that these are published in tabloids. The publications are known for being garbage and no one should believe them.

I suppose the notion of press freedom has changed between 1991 and Gawker's case.

there's a difference between publishing gossip and publishing someone else's sex tape.

"Mr. Chieffo, a veteran entertainment lawyer, usually responds with what he calls "the facts of life" in the never-ending battle between these publications and the famous people". Why

1. That Hogan had sex with his friend's wife

2. That he was taped

are not "facts of life"?

Don't think the issue is that Gawker reported that Hogan was taped having sex with his friend's wife.

No, the issue is that they literally wrote a headline bragging about ignoring a court order to take it down[0].

Whether or not the lawsuit itself was justified (though the jury ultimately did thing so), it's pretty stupid to ignore a court order. It's even more appalling to brag about it the way they did. Quite frankly, they kind of got off easy, since the consequences could have been a lot worse. People literally go to jail for behavior like that. Look at Kim Davis, who was jailed for contempt.

[0] http://gawker.com/a-judge-told-us-to-take-down-our-hulk-hoga...

I don't understand. Why did gawker fight for this? Was there any big ideal behind it or just for the lulz? I can understand if it was the President instead of hulk Hogan, but it's just a private individual in his private premises doing perfectly legal things. Why would you publish this and then fight the judicial system over it?

I'm very glad that a lot of people here have zero chance to have any political influence, ever.

The biggest reason is that Gawker had a court order not to release the tape, and then did anyway.

That's a very different issue than publishing a story.

No, they had a court order to take down the post, including the excerpt of the video that they posted, and they only took down the video (and, on appeal, was found to be in the right).

Yeah. The sex tape is verifiably true.

You might have a point if they published an article saying hulk hogan had sex with whoever was in the tape.

I struggle to understand how they could possibly have not met that standard?

From their "we're not going to take down the article, only the video" post, linked elsewhere:

> the Hon. Pamela A.M. Campbell, a circuit court judge in Pinellas County, Fla., issued an order compelling Gawker to remove from the internet a video of Hulk Hogan fucking his friend's ex-wife, as well as a 1,400-word narrative of the video written by former Gawker editor A.J. Daulerio and 466 user-submitted comments

(my emphasis)

So, they did publish an article saying Hulk Hogan had sex with the person in the tape, and substantiated it with an excerpt of the tape.

They posted the video and didn't take it down when ordered by a judge.

What are you talking about? They did take down the video when ordered by a judge. They refused to take down the accompanying 1400-word article.

http://gawker.com/a-judge-told-us-to-take-down-our-hulk-hoga...

> Despite her misapprehension that the issue at hand was "only about the tape," Campbell has seen clear to order us to disappear a 1,400-word article—words composed and published by Gawker Media editorial employees—simply because Hulk Hogan didn't like it.

> A lawful order from a circuit court judge is a serious thing. While we vehemently disagree with Campbell's order with respect to the video itself, we have chosen to take it down pending our appeal.

> But the portion of the order compelling us to remove the entirety of Daulerio's post—his words, his speech—is grossly unconstitutional. We won't take it down.

> I suppose the notion of press freedom has changed between 1991 and Gawker's case.

Press freedom doesn't mean freedom from being sued by individuals. Gawker's case has nothing to do with Press freedom. It isn't the american government who is suing Gawker.

While it doesn't protect them from being sued, it's not true that the First Amendment and press freedom has nothing to do with civil cases.

http://www.lexology.com/library/detail.aspx?g=1b0cef82-2385-...

You can sue anyone for anything. It's easy when an angry billionaire is paying the bill.

This is two private parties slugging it out. The government adjudicates but does not have a specific law that is broken. That is by definition freedom of the press.

The danger is when the government starts setting laws that the press has to follow, or has the power to drag the press through kangaroo courts where the process is the punishment.

When you have an essentially private dispute between parties like this it is interesting but has little relevance to actual freedom of the press. The only issue would be if the government of the day started weighing in on the case.

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