How Billionaire Lawfare Threatens Free Speech

How Billionaire Lawfare Threatens Free Speech May 30, 2016

Money

I didn’t have a strong opinion on Hulk Hogan’s lawsuit against Gawker Media for posting his sex tape, until I found out that Peter Thiel was secretly funding it. (You may remember him as the billionaire libertarian who’s against democracy in general and women’s suffrage in particular.) Thiel has held a grudge against Gawker since it outed him as gay a few years ago, and ever since then, he’s been quietly looking for a lawsuit to back that could destroy the company. With this case, he may have found it.

Whatever you think of Gawker – and I’d agree they’re not the most sympathetic defendant imaginable – this case raises troubling questions. It’s worrisome for democracy when billionaires can squeeze the arteries of free speech. And I think Thiel recognizes that as well. After all, if he thought his cause was righteous, as he claimed after being found out, then why did he try to conceal that he was taking a hand in the case? Why didn’t he speak up about it until after his involvement was discovered by journalists?

Even if you believe Hogan’s lawsuit is meritorious, there are other, more blatant examples of billionaires using the courts to try to crush the press for annoying them. One big one is Frank VanderSloot’s lawsuit against Mother Jones. It happened last year but wasn’t reported nearly as widely. VanderSloot, a major Republican donor, sued the liberal magazine for defamation after it criticized his history of anti-gay-rights activism:

This is the culmination of a lengthy, expensive legal saga that began three years ago when the 2012 presidential primaries were in full swing. On February 6, 2012, we published an article about VanderSloot after it emerged that his company, Melaleuca, and its subsidiaries had given $1 million to Mitt Romney’s super-PAC. The piece noted that VanderSloot had gone to unusual lengths to oppose gay rights in Idaho, and that Melaleuca had run into trouble with regulators.

…What we do know is that the take-no-prisoners legal assault from VanderSloot and Melaleuca has consumed a good part of the past two and a half years and has cost millions (yes, millions) in legal fees. In the course of the litigation, VanderSloot sued a former small-town Idaho newspaper reporter whose confrontation with him we mentioned in our article. His lawyers asked a judge to let them rifle through the internal records of the Obama campaign. They deposed a representative of the campaign in pursuit of a baseless theory that Mother Jones conspired with Obama’s team to defame VanderSloot. They tried to get one of our lawyers disqualified because his firm had once done work for Melaleuca. They intrusively questioned our employees — our reporter was grilled about whether she had attended a Super Bowl party the night she finalized the article.

Although Mother Jones fought back and won the lawsuit, it cost them over $2.5 million, money that wasn’t reimbursed to them. Despite his loss, VanderSloot announced that he was setting up a $1 million legal fund to pay for people who wanted to sue Mother Jones or “the liberal press” in general.

And other billionaires, as well, are cheering on Thiel’s lawsuit or even looking to copy his tactics:

“Click bait journalists need to be taught lessons,” said the billionaire Vinod Khosla, whose efforts to close off public access to a beach on his property were covered by Valleywag.

And let’s not forget, as Rachel Sklar points out, that Donald Trump has said he wants to “open up” libel laws to make it easier to sue the media for writing stories that powerful people don’t like.

Once upon a time, tactics like this would have been illegal. Taking a hand in someone else’s case used to be called maintenance – “the intermeddling of a disinterested party to encourage a lawsuit” – and it was a crime under the old common law.

I’m not saying we should resurrect this law. After all, a blanket prohibition on uninvolved parties supporting lawsuits would also prevent, say, the ACLU or the FFRF from stepping in to lend a legal hand when someone’s rights are violated. It’s undoubtedly a net good for society that we have rights groups to protect people who’d otherwise be too poor or inexperienced to seek redress through the legal system. But the distasteful flip side of that is billionaires funding legal search-and-destroy missions against the already-beleaguered media as a vanity project.

The real problem isn’t that one-percenters can secretly fund someone else’s lawsuit. The problem is that defending against a lawsuit, even if it’s meritless, is almost always a ruinously expensive ordeal. This is true for small independent companies just as much as for individuals. A rich person willing to spend for the sake of spite can make it even worse by dragging the case out and burdening the other side with endless subpoenas, motions, and demands. The costs and lawyer fees can rise to tens of thousands, hundreds of thousands, even millions.

What I’m worried about is that, the next time a journalist discovers a misdeed by some vindictive billionaire, they may decide not to publish so as not to risk a lawsuit that would ruin them personally and professionally. The precedent set by the Gawker case and the others like it is that wealthy people can wield the legal system as a weapon to silence their critics. The religious right has no shortage of thin-skinned millionaire televangelists; what if one of them sued Patheos over something I wrote criticizing him? Don’t think it couldn’t happen.

The only real solution I can think of is reforming the court system to streamline the process and give more protection to defendants. A strong anti-SLAPP statute in every state would make it easier to dismiss abusive suits before they ever came to trial. It could also help to have sunlight laws requiring anyone who uses the courts to disclose if a third party is taking a hand in their case. But it’s hard to imagine a one-size-fits-all solution to this. As long as there are vast disparities in wealth and power among people, there will be those willing to exploit the courts for their own grudges.

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