Welcome to the post-Gawker world

One of the reasons why things got as fucked up as they are today is that the establishment, particularly the parts of the establishment that are supposed to stand watch have become corrupted with complacency and arrogance. No where is this more true than with the New York Times.

Gawker and the publications it spawned were a gang of bomb throwers who took great pleasure in in calling out bullshit and afflicting the comfortable, whether it Silicon Valley billionaires with god complexes or venerable institutions like the NYT.

When the comfortable came for Gawker, the New York Times decided it was important that Peter Thiel had a chance to tell his side of the story. In case you've forgotten, Thiel is a reactionary so extreme that he has argued against women's suffrage.

We can't say for certain but if the respectable mainstream media had put aside the times Gawker had hurt their feelings, had instead stood in defense of journalism, things might be different today.

Here's Josh Marshall (one of the journalists who actually did stand up):

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.

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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.