I don't think Thiel is being unethical and I think the decision in this case was valid.
That said I do in general have a problem with all this. I mean what does it say about our justice system when a millionaire needs a billionaire to help seek justice for himself. Is that how it's going to be in the future? If you find yourself wronged by some massively wealthy or powerful entity you now have to find an equally massively wealthy or powerful entity to back you in seeking justice?
We've all known money has far too much power in the legal system. But this just lays it out plain as day. How can anyone look at this and think, "Yea that's a good way of handling things".
I really doubt whether any just society exists in today. Rich and powerful will always bend the rules. These days the rule ~breaking~ bending is more subtle than the previous. To quote Thucydides[1] "... right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must."
The challenge still exists for us to find a way to build more just and egalitarian societies.
I cannot speak for other European countries, but in Switzerland, much less of the cost of the judicial system is on the individual. Also for minor the there are dedicated judges appointed to quickly resolve disputes without huge processes. And finally, there's insurance you can get that will pay a lawyer for you if you really get into some nasty situation ever, something I haven't found in the U.S. where it would actually make even more sense, given the litigation trigger happiness here.
The US also has a small claims court, every country does.
The problems is that people have very skewed view of the US legal system mainly because of big cases that are sensationalized by them media.
Most law suits in the US don't end up as multi-million dollar cases.
Donate to the ACLU if you want things to change but don't blame a good thing for being done. Hopefully this will lessen the likelyhood of lawsuits needed to be brought in the future.
> what does it say about our justice system when a millionaire needs a billionaire to help seek justice
> "Yea that's a good way of handling things"
That's my view in a nutshell. Despite our reputation as supposed money grubbers perpetually on the side of Big Business I've yet to meet any libertarian who thinks the poor are less deserving of justice, or as we say here: 'a fair shake'.
I wonder whether Hogan/Bollea was advised by "his" counsel about the ramifications of dropping one of the pieces of litigation - a piece that would have increased the ability for Bollea to collect that damage award.
As it happens the particular tort that was dropped was the only one that would allow Gawker to use their insurance to cover the liability of the verdict awarded.
Thiel's goal is to destroy Gawker. A Gawker that is less able to pay out a verdict (because the verdict was $100M, but Gawker's revenue is only around $40M/yr) is going to go bankrupt, versus potentially staying in business if their insurer pays out.
What's Bollea's goal? To destroy Gawker? Or achieve recompense? Or indeed both?
Given that the counsel used by Bollea in this case is the same lawyer/law firm that Thiel is also channeling significant other money - and clients - to, for exactly the same thing, how clear is it exactly who the firm's client _really_ is - Bollea, or Thiel?
And if Bollea and Thiel's goals are not the same (because as Thiel says, Bollea couldn't afford to do this himself), whose is going to take priority? Was Bollea briefed on the consequences of dropping this part of the suit (thus risking the ability for him to be paid/paid as much)?
If so, was he okay with it? Is he expecting external compensation? Do the lawyers have a conflict of interest here? Is Bollea a knowledgeable/willing partner, or a semi or wholly uninformed pawn?
However reprehensible Gawker is in this, there absolutely a wide crevice where there are perfectly valid ethical questions about Thiel's involvement and motivations in this whole debacle.
>...there are perfectly valid ethical questions about Thiel's involvement and motivations in this whole debacle.
Your post basically reads like a law school ethics question/answer. You did a great job issue spotting. Law being one of the most highly regulated industries there are rules on point, so I can answer some of your questions.
Here is how the Florida Rule of Professional Conduct reads "Rule 4-5.4(d): Exercise of Independent Professional Judgment. A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services."
In other words, under the rules Bollea is the Client. As such has full decision making power with the attorney-client relationship. Not only would funny business result in the disbarment of the lawyer, there are also a lot of practicalities to law that prevent the undue influence on the lawyer.
For example if Bollea wants to settle its not like Thiel could direct the firm to trial for a chance at a bigger judgment over Bollea's wishes, there would be record and it would be grounds for a malpractice claim and disbarment. Lawyer's can't even withhold settlement offers from clients, without there being a record, and again grounds for malpractice and disbarment. Your issue about dropping the claim against the interest of Bollea's ability to collect is interesting, but again if it can be shown Bollea suffered damage (lost ability to collect full judgment through insurance) because the lawyers breached their duty to the client that is grounds for malpractice.
Right, I'm not saying "this is cut and dried -wrong-" but that it does raise what I feel are valid questions about the influences, both conscious and subconscious that surround this whole situation.
Like you say, Thiel could not direct the firm to change strategy, but on the other hand (and I realize that this may come across as an accusation where one isn't intended), no doubt Thiel is talking to the law firm, and directing multiple people to this particular firm, and given that he has been vocal about his goals, it's also possible that such things creep in to decision making processes.
Bollea and Thiel's interests may also be perfectly aligned.
>but that it does raise what I feel are valid questions..
I totally agree, and the Bars that regulate lawyers agree. Not just valid, but serious enough issues for the Bars to create Rules to try to guide lawyers when confronted with these exact scenarios. Notwithstanding the Rules and severe punishments, they can still be broken, and as you suggest violations can be intentional and unintentional only clouding these ethical issues.
Just don't under estimate how archaic the Bars Rules are in practice. For example, the power of Admonishment wherein lawyers are dragged in front of groups of their peers to be publicly ridiculed, a record of the event is made and distributed among the community. Even if not disbarred, punishment is not only humiliating but can potentially ruin a career anyhow.
>Bollea and Thiel's interests may also be perfectly aligned.
I haven't confirmed, but I think the gist is that separate and apart from the firm's representation of Bollea, the firm represents Thiel in various unrelated legal matters. If true, coincidentally we know that at minimum Bollea and Thiel don't have adverse interests[1]. Moreover, before a firm represents a client (Bollea) they must perform a conflict check against all existing clients, which coincidentally would have included the payer, Thiel.
Funny enough I don't think such a conflict check is required of someone who pays the lawyer for another (Thiel if he wasn't a client of the firm) and such a rule would seem to make sense. Though it would be burdensome in the instance of crowdsourcing lawsuits which will probably begin to become more of a thing. It would also be a strange analysis in the criminal justice context where the tax payer is paying the judge, the prosecutor and the defense (in the instance of public defender cases), or even insurance cases where opposing parties are both insured by the same company (e.g. my insurance company is representing me and paying for my litigation, and they are also representing and paying the opposing litigation...a conflict).
Other people get to 'decide' at appeal time: I were the judge / on a jury on a case were the complainant was tactically dropping charges with the aim of bankrupting the other party rather than seeking justice, I'd probably decide against them. I find using the justice system in pursuit of revenge at the cost of actual justice rather perverse.
You are misunderstanding the system, I think. If Bollea can win the case, and that judgment would bankrupt Gawker, then under our legal system Bollea has the right to bankrupt them. He also has the right to settle with them if he finds an offer they make advantageous. But that is completely up to him.
Whatever he chooses, for whatever reasons he chooses, is justice. By definition. To be honest, if anything is a perversion of justice, it's a settlement. Because a settlement prevents a verdict from ever being reached and the legal 'truth' of the situation from ever being found.
> I find using the justice system in pursuit of revenge at the cost of actual justice rather perverse.
Its major function, crudely, is to prevent Hulk Hogan from visiting Nick Denton in character.
It isn't to prevent the pursuit of revenge. It is to prevent violence and vendetta by having a neutral third party arbitrate. The pursuit of revenge for wrongs committed is the notion and motivation behind the elaborate social institution we call justice.
No, the only person with a cause of action here is Bolea himself. Until and unless he asserts that something happened which violated his rights, the entire argument is bogus.
He is the only one who can decide that his lawyer somehow wronged him here. The question is simply not before the court. They decide the arguments presented to them, they can't simply invent one to decide. And Bolea is the only person who can make such an argument here.
Also, it's going to be hard to argue that his lawyers bungled things when he won a huge pile of money.
"Also, it's going to be hard to argue that his lawyers bungled things when he won a huge pile of money."
And then made a decision that meant that in all likelihood he will see either none of, or a tiny fraction of that money, when he could have seen nearly all or all of it by virtue of a liability insurance pay out.
That depends on the bankruptcy court. Maybe he has enough money and is happier this way? Like I said, anyone other than Bolea arguing this is full of crap. He's the only one who gets to decide what is or is not in his interests.
Until and unless Bolea says otherwise, the uninformed speculation to the contrary is simply absurd.
These are reasonable questions but there is no evidence that Terry Bollea was an unwilling participant. Obviously Thiel wasn't in it for the money but (higher potential) compensation was not necessarily the main motivation for Bollea either. He's already a wealthy man by most standards and probably more concerned about his (Terry) honor and causing his character (Hulk) to lose face because if that hurts the macho public image he's deliberately developed then he loses both future income and public presence.
Some people will find the idea of Bollea having a moral code or honour to be facetious but I'd like to remind them that people have very different definitions of what that means.
No, and that's a fair point, these are only the questions that come to my mind when reading this, certainly not "something that happened".
By all intents, though, Bollea is (at least to his own words) "near bankruptcy", due to divorce. So it seems odd that he'd also - after being awarded a large sum - which is all he'd sought before - _then_ decide to drop the claim which offered him his only real chance at seeing any noticeable part of that award.
Certainly there is more to life than money, though, as you point out, moral codes and honor.
I also am curious as to whether he would have gotten the award he did if the jury felt that it would bankrupt Gawker, rather than cause an insurance liability payout - that seems a little bit unusual.
This is an admittedly contrived example, so bear with me - there are some analogies, and some discrepancies, and this is the best I can do:
I am driving negligently. Setting aside any criminal charges that may cause me to face, I come careening through and have an "accident". Subsequent to that, your property is destroyed, perhaps as part of a chain reaction, me coming through the fence. Perhaps as a result, you're injured. You lose your livelihood, you lose your house.
You sue me, for damages related around this whole messy incident. Medical costs. Lost livelihood. The loss on your house when foreclosed, damages etc.
The jury says hey, you're absolutely right, he was negligent and we're going to award (say) $2M in damages.
Here I am, I'm a careless and reckless driver. But I do have good insurance. It has a whole bunch of third party, property, and liability coverage. So it sucks for everyone, but you have the ability to be "made whole" (as far as is reasonably possible). I on the other hand am out of business. The vehicle I drove was my truck I used for my own business. My fault, consequences of my actions, etc, etc. I'm probably done for.
Then you decide, at the last minute of the court case, to drop any claim of damages explicitly about the accident. "Nope, we don't want to pursue the damages claim directly related to the accident itself. We are still going to pursue all claims related to any of the fallout, the loss of house, livelihood, but the accident itself, we're waiving that".
This has the curious effect of 1) meaning my insurance company says "Well, sorry, pal, we no longer have an interest. You're not being sued over damages due to your accident, you're on your own", and 2) which you realized, also realistically means you have near zero chance of collecting any of the moneys awarded, because this is putting me out of business.
I would certainly be asking questions of you there, were I the judge: are you aware of the consequences of this decision? what motivated the change, certainly at this point in proceedings, and I'd be asking the jury how that would affect the award, because in most cases there is going to be -some- (not the only) element of the likelihood of payment of the award.
So the judge could use discretion such that all the damages related to the fallout be paid. Otherwise it's a bit like being somebody in debtor's prison to pay their debts. This means the side affect of killing Gawker should be taken into account by the judge.
There are at least three confounding issues though. The first is that this guy who crashed into your house has repeatedly done the same thing to other people's houses. He's a habitual drunk who shouts mean things while shaking his fist at other cars as he drives. Public menace. Maybe having him off the road entirely isn't such a bad solution. He can catch the bus or get a new line of work and pay off his debts gradually.
The second is that this guy has other coworkers that could lend him money to pay the damages. He's not homeless just yet. The question is whether his support network exists for doing so. (i.e. Gawker could just about scrape by, it's not dead yet)
The third is that the man could just declare bankruptcy. Then all his assets are gone but he won't owe the remainder for covering the problem he caused. A new start is underrated. (i.e. Gawker cannot pay what it does not possess, I assume here Gawker is a LLC of some type) A harsh punishment by the judge but we have to send a message to these drunks driving crazily on our roads.
Great post. However, most of the people I've seen come out against Thiel have not taken this argument. They've painted it as a billionaire shutting down a news outlet and silencing free speech. Which is very far from the truth.
Since you cannot put the genie back in to the bottle, but you can 'get revenge' by ending the business, I can see how it would be both logical and in the clients best interest to point that out.
Which also happens to align with the overall interests of the lawyer's patron.
At no point have I said that Thiel acted unethically, either. I think it's natural, and valid, to ask questions, or discuss why someone might act in a way that on the surface appears deleterious to their own interests, particularly when there is someone behind the curtains who does have a different, or tangential interest.
It's unethical because (a) Thiel was funding an unrelated case merely to exact a personal revenge, (b) he appears to be behind the decision to drop a certain charge from the lawsuit only so that Gawker wouldn't have insurance cover - it shows vindictiveness, (c) Thiel's goal seems to be to bankrupt and shut down Gawker.
Most of all, if this was indeed above board and ethical, why did Thiel feel the need to do this surreptitiously until outed by the NYT (is he going to fund someone to sue them too?).
> (a) Thiel was funding an unrelated case merely to exact a personal revenge
That would be unethical if the case were frivolous, or designed to bankrupt Gawker through "court fees" defending themselves against unreasonable complaints, or so on.
Gawker's going bankrupt, if they do, because they lost the case, for what I think were correct reasons. It can not be unethical to help someone get justice they were owed. If there are more cases like this one, I hope the plaintiffs win those cases too.
Would Gawker go bankrupt if the damages were set at $10 million? What about $20 million? $100 million? Why not $1 billion.
Hulk Hogan is already a very wealthy man. Did he truly need many many millions more? Is that just and fair?
Let's say you do something, ANYTHING, that someone takes issue with and brings you to court with a fully staffed legal team. You lose the case. You have to pay millions in damages. Would you keep true to your word that you hope more cases like this happen and that the plaintiffs win those cases too?
> Hulk Hogan is already a very wealthy man. Did he truly need many many millions more? Is that just and fair?
Yes, it is. Much of the damages were economic. He lost his job with WWE due to Gawker's publication. That's how much his job was paying him. It is a good thing that people can get economic damages from courts, even if they are rich. (Though it would be much better if everyone could receive the same level of justice as Hogan did, regardless of how rich they are.)
> Let's say you do something, ANYTHING, that someone takes issue with and brings you to court with a fully staffed legal team. You lose the case. You have to pay millions in damages. Would you keep true to your word that you hope more cases like this happen and that the plaintiffs win those cases too?
I'm so confused by this argument. The reason I hope more people in Hogan's situation win their cases is that I think the jury verdict was correct, and achieved justice for him, as it would for them too.
I expect I would be personally unhappy about losing millions, as anyone would. But it would only be wrong if it was for an unjust reason. That's not the case here. There is no hypocrisy in wanting just cases to succeed and unjust cases to fail.
Wealthy people tend to have a lot of income. He lost a lot of income due to Gawker. Yes, it's just and fair. Bollea was making millions and millions a year in roles and endorsements, and that dried up after Gawker went after him. Gawker makes millions too. What Gawker did in the Bollea case has nothing to do with journalism. They wanted to create a sensationalist tabloid story with stolen footage of a private and embarrassing encounter to make money. Like any business endeavor, there's the possibility that you lose money. When you're a non-essential business that costs someone millions, be expected to pay millions.
Being able to use the courts to sue for defamation is pretty widely accepted as legit by most if not all strains of libertarianism. It's actually a clear example of a valid case in which governmental authority is necessary.
It is, but that's not what Thiel is trying to do. He is backing an unrelated lawsuit in an effort to squash them. The action that he had a problem with, them outing him, is in no way illegal, so he got into a proxy war against them. That is unquestionably unethical. The ethical thing for him to do would be to come at them head on in the public arena.
Especially when you champion yourself as taking the moral high ground. "The right to face your acccuser" as opposed to "having them bankroll your opponents behind the scenes".
Libertarianism: "All the parts of government that benefit rich folks are legit/necessary/essential. All the parts that benefit poor folks are illegitimate/aggression/tyranny."
That's right-wing libertarianism. Libertarianism was first formulated by a French anarcho-communist named Joseph Déjacque in the late 1800's, who lambasted Proudhon (of "property is theft" fame) for not being sufficiently focused on liberty.
Right-libertarianism on the other hand was basically an attempt at reformulating the theories of Ayn Rand and von Mises to something that would allow a common from on many issues with liberal groups on the left.
despite the somewhat narrow notion of what "libertarian" encompasses in US politics, even there they aren't equivalent to zero-government anarchists.
> to crush free speech
i'm increasingly believing that the notion of "free speech" has asymptotically zero meaning in general discourse. that said, an interesting counterpoint is in the article: "Mr. Thiel has donated money to the Committee to Protect Journalists and has often talked about protecting freedom of speech."
it certainly appears to me that he sees gawker as a particularly hostile and unethical enterprise. the cases wouldn't exist without gawker's behavior, and the judges ostensibly render judgement according to the law.
Not sure why you were downvoted for this. One of my bigger criticisms of Thiel would be that he seems to have a very hypocritical sort of "libertarianism" - e.g. founding Palantir, basically another spy agency for the US gov. But hey, I guess if you can make a buck...
That aside, I don't think this is the best example. Litigating through courts is pretty fundamental to anarcho-capitalist ideas, so this seems fairly consistent with that worldview.
I know how it seems at first but you should probably hear out his explanation.
First I take it you accept the necessity of gathering intelligence and analyzing it i.e. You don't believe the world is a John Lennon song.
He says that Palantir is a very targeted approach to surveillance. It was founded at a time when dragnet surveillance proposals were being thrown up. The 'greater good' in this sense is preventing a more Orwellian world by the method of being effective and flexible in a way that sprawling govcomplexes tend not to be.
When Snowden came out Thiel was alongside Binney in criticizing the NSA for being overwhelmed in irrelevant data. The basic point they both make is that an effective government isn't a cruel one or has the potential to be less likely to cudgel large numbers of innocent people. No need to send the village to the gulag if one of them is the culprit.
libel and slander are defined as writing or saying _false_ things that damage a person's reputation or property. if the damaging statement is _true_ its not libel or slander.
if its a trial by jury then the verdict is whatever the jury renders. the ambiguity, however, leaves lots of room open for appeals, which is exactly whats going on in Terry Bollea v Gawker right now.
I'm not going to make a judgment about whether it crosses over into being unethical, but a rich man trying to shut down a news outlet because he doesn't like what they said about him at least raises questions.
A rich person acted out his retributive fantasies by paying a law team for years to trawl through everything Gawker put out in search of litigable offenses. That's unethical on the part of the lawyers, probably, and on the part of Thiel, certainly. He never had a chance to win any personal verdict, so he went nuclear. There's no way that won't have a chilling effect on other media companies who consider whether or not to cover the stupid shit that rich people do.
And it was cheap for him - around $10mm to bankrupt his mortal enemy. There's no way that other rich folks aren't going to do it as well, especially now that he's framing it as a philanthropic act.
Trade "rich person" for "powerful media outlet" and Gawker is the bully. And it's been cheap for Gawker over the years with their 40 million in revenue to throw any hapless victims to the wolves if they thought that it would sell advertising. And guess what it was cheap for them. How many people didn't have the money or resources to take Gawker on?
The question was about whether or not it was ethical for Thiel to do what he did. Saying that Gawker did something bad to other people does not mean Thiel has an obligation to do anything, nor does it say that he acted ethically to do what he did.
You make him sound like someone who is filing frivolous lawsuits. The Hogan case involves an outrageous invasion of privacy of extremely dubious newsworthiness, nothing at all like, say, outing a lesbian congresswoman who supports traditional marriage legislation. He's not going through looking for possible gotchas; these cases are pretty clear cut.
He didn't file a frivolous lawsuit. He decided to not file a frivolous lawsuit, and instead to fund every viable lawsuit he could purely so he could bankrupt a media company that had covered him very unfavourably in the past. He'll probably keep doing it, if more such cases pop up.
He isn't on Hulk Hogan's side. He's on his side, and he won. Making this about the particulars of Hogan's case is deliberately eliding the fact that Thiel didn't give a shit about Hogan's case other than that it could bankrupt Gawker.
If in fact there are other viable cases, in the absence of Thiel the injustice would then be that Gawker can behave badly indefinitely because most of the victims will not pay the necessary amount to litigate.
If Gawker hadn't published anything litigable, they wouldn't have had any problems. If there is a litigable claim, there should be at least the possibility that the person who is being litigated against has done something wrong. Who cares about the motives of the person exposing the wrongdoing as long as it's accurate?
1. You have a moral obligation to litigate moral wrongs, whether or not they happened to you. Since rich people have more money and hence more things are litigable to them, they have a moral obligation to litigate more things. In this view, Thiel obviously did the wrong thing: he avoided litigating moral wrongs for years while waiting for the right case to come up strictly about Gawker. He failed to act ethically, under this model.
2. It is morally permissible to litigate moral or even legal wrongs that were not committed to you. It being permissible means it's a supererogatory feature of your moral life, in that you don't have to do it. It goes beyond the call of duty to sue Gawker for what they did to Hogan. But without a moral obligation to do so, you can't say that it could ever override your other obligations to behave ethically. Retribution, which this clearly was, is not an obviously ethical motive that would mean we should wholesale excuse what Thiel did—even though it may have been a good act to punish Gawker for Hogan, it was morally wrong to use the legal system strictly for retribution.
3. It is your moral obligation to litigate all litigable acts. This is absurd, prima facie: all our money and time should go towards litigation? Nah.
In other words, yeah, the motives matter. Thiel went above and beyond the call of duty and acted unethically, in an especially egregious and self-serving way available only to billionaires, along the way.
Another way to look at it is this: It happened. For the most part, everyone is better off because it did. If that weren't the case, we would have done something to stop it.
"Moral obligations" are made-up. Obligated by whom? What happens if someone doesn't fulfill their moral obligation? Nothing, right? Maybe someone writes a comment on the Internet saying they should be ashamed, but that's pretty much it.
Feel free to pontificate all you like about the morality of it. That won't change the fact that it did happen and will happen again unless a force powerful enough to stop it chooses to do so.
Ultimately, the whole point of having a justice system is to sort out these questions. Anybody can sue anyone else for any reason. We depend on the courts to sort out the ones that are valid from the ones that are invalid. In this case, the courts deemed this a valid lawsuit. If you disagree with the validity of it or feel the methods by which the courts make these judgments is flawed, then that's one thing, but the rules of the system allow any lawsuit to be brought for any reason.
If the only way you can argue against them is to refer to some rules you made up, I agree.
In any event "retribution" is an overly simplistic way of looking at what Thiel did. It could also be interpreted as protecting future victims of Gawker.
Suppose someone stabs me, and I live. For whatever reason, they get away and continue to run around stabbing people. If at some point in the future, they attempt to stab someone else and I stop them, killing them in the process, is that killing in retribution or protection? Maybe both. It doesn't really matter so long as we can stop people from getting stabbed.
What I find funny about this example is that at first I thought the "it happened" argument was going to be used in defense of the person doing the stabbing. Which, of course, it could.
Whether anybody thinks people "should" or "shouldn't" get stabbed is irrelevant. People do get stabbed. When it becomes enough of a problem, other people do something to stop it.
Gawker went and made a powerful enemy for no good reason. Outing someone who didn't want to be outed helped no one. Thiel used the considerable means at his disposal to ruin Gawker in a way that didn't harm anyone other than the owners of Gawker. Since nobody else really benefited from Gawker's existence it's unsurprising that nobody else really cares if they stop existing.
If Gawker had been exposing powerful people doing something illegal or otherwise harmful instead of just being gay or having affairs, they would have had the justice system and the public on their side and they wouldn't have lost the lawsuit.
I think it boils down to a conflict of interest and hence Thiel shouldn't have been involved in the legal process at all. That's the unethical element about it (to me).
I think it's also about transparency.
Thiel should have been front and centre during the legal process and open about his involvement instead of manipulating from the background.
Now, Thiel has not only undermined his own reputation (would you want to deal with a man who, if you got on the wrong side of him, might use considerable economic might to bring you down?) and the reputation of the legal system (now perceived to be a football game for billionaires).
You can argue day and night whether or not this is ethical or unethical, or how important the original legal cases were. However, Thiels' approach failed the smell test (to me) and has done more overall harm than good in the cold light of day ... just so one man could have a "fuck you" moment in the sunshine.
Disclaimer: if half of the things written about Gawker are true, I'm obviously not in their camp. It's possible to criticize both for different reasons.
