1) “Every news organization makes mistakes.” Yes, the point of the First Amendment is to grant leeway to erroneous statements. (After all, truth was a defense even in Shakespeare’s time). But the trial court saw and the public knows this was not an “innocent mistake”: Gawker has intentionally violated privacy many times and it is part of their business model. By way of example, outing the Conde Nast executive, and airing video of a woman being raped and when she pleaded with them not to air it, they told the rape victim “don’t make such a big deal out of it.”

2) Trials are held on their merits. Whether there was error in excluding evidence, etc. was an error that will be sorted out on appeal. But having studied this law quite extensively and having litigated many of these cases, there is absolutely NO entry point for the jury to hear about the motivation of anyone’s backer. The fact that a plaintiff’s sponsor had animus toward the defendant is simply NOT relevant or a defense to the elements of the tort. I also find Felix’ argument silly: millionaires have been threatening libel suits for decades. I defended a case brought by Khodorkovsky in the UK, and frequently fought off Trump, Michael Milken, Adelson, Frank Quattrone and many other well-heeled heels. I do agree that SLAPP laws are the best solution, though.

Fair enough. I have gathered that anti-SLAPP has more teeth in CA than elsewhere. And, in fact, I brought a lawsuit against Viacom years ago for a meritorious plaintiff (a Minnesotan whose claim arose from an event n CA) and defendant threatened my client with an anti-SLAPP motion (that had no merit)…a downward spiral into anti-anti-SLAPP litigation?

Because they have been around for decades, we have a LOT of field data about how anti-SLAPP laws actually work, and I think they work extremely well for most purposes. Even if they don’t deter billionaire abuse, they will still provide much-needed compensation for defendants. And at least in California, I would strongly disagree with the characterization that anti-SLAPP laws are applied “rarely” or “unevenly.”

If you think about why Rule 11 fails, and then compare it to how judges deal with anti-SLAPP laws, you’ll see how anti-SLAPP laws fix some of the structural problems with Rule 11. Eric.

I was at a presentation by Gawker’s counsel to a media law group, and although we all were sympathetic as well as worried about the impact of the huge verdict (and the home-towning that Gawker faced), it was hard to see legal error.

The real story here is not liability, it’s damages. I would be shocked if Hulk suffered any actual economic loss, and although he may have been entitled to at least SOME money for his “distress”, the incredibly poor quality of the video (you simply can’t see anything) and Hulk’s track record of engaging in attention-seeking behavior should have made the damages award de minimus.

So, regardless of any other issues, I see this case as being important solely because a jury awarded $140 million to a guy who really wasn’t that injured. This is overwhelming evidence of how deeply broken our jury system is. That’s the issue we should be talking about, not the strange-but-probably-meaningless difference that Thiel’s money had.

This question is being debated on my Facebook post and I understand why it’s a vexing question. I can make up some obvious differences–it’s being done by an individual billionaire instead of an advocacy group; it’s targeting a single company and not an industry; and it raises way more free speech issues than the tobacco/oil examples. However, I’m still not sure how much those differences are meaningful. That’s why solutions like anti-SLAPP laws could help here without affecting other types of activism litigation.

I like the sentiment! I assume that fee-shifts are functionally irrelevant as deterrents to billionaire plaintiffs. It’s true that a broke plaintiff with a wealthy benefactor could still stiff a defendant for fees. We run into the same risk with NPE litigation. Personally, I’d love to see plaintiffs post a bond under certain circumstances (I mention that here https://blog.ericgoldman.org/archives/2011/12/umg_v_shelter_c.htm). If we could get the bond requirement without slowing down a federal anti-SLAPP bill, I’d love that! Eric.