Schadenfreude Is Not A First Amendment Value

I've got an op-ed up in the LA Times.

Last 5 posts by Ken White

Comments

  1. Anon says

    I don't really buy this argument since Gawker is the definition of a speech-punishing bully. Its hard to care about something that feels like them getting a taste of their own medicine.

  2. Ronald Pottol says

    Damn it Ken, should we be worried (I mean, I don't want to live in England speech wise), or just happy (awful people got slapped down hard enough to bounce)?

    Sigh.

    Well, at least Prenda's getting theirs, but that's more like a slow mo video on the hydraulic press channel, but with the the 50,000 ton press http://boingboing.net/2012/02/13/machines.html

  3. Cactus says

    Its hard to care about something that feels like them getting a taste of their own medicine.

    The first amendment necessarily protects people who want to talk about how much they hate the first amendment. That's how you know it's working.

    I'm happy enough with how this has all turned out and with the tone of this article. It was freedoms like those Thiel used that allowed the NAACP and various gay rights groups through the years to support legal battles without drawing attacks and we should be grateful these options still exist. Gawker was tabloid trash and there's a hundred more sites like it anyway for those now in need of a job.

    I do get concerned at the payouts from cases like this though, where it appears to be more about damaging the guilty party than compensating the victims. Breitbart didn't get shut down after their Shirley Sherrod fuckup, yet an ex-wrestler still struggling with entirely unrelated scandals is somehow owed hundreds of millions of dollars. I get even more concerned in the context of Trump and his open desires to try and target media that doesn't flatter him enough, or with the liberals who'll now try and push to ban third-party legal funding regardless of it's true impact.

    As usual it's one of those cases that ends up causing both "sides" to try and make things worse in different ways and you end up grateful that people are too apathetic to carry it forwards.

  4. C says

    "What Thiel did wasn’t illegal."
    I'm not so sure about that. At common law it was called "maintenance" (if he just paid for the suit) or "champerty" (if he also took a contingent stake in the proceeds), and it sure as heck was illegal. Now, most states have limited or abolished — or forgotten about — maintenance and champerty, but some states still have them. Does Florida? I have no idea. But I wouldn't let Thiel off the hook until I checked it out.

  5. Gorshkov says

    Its hard to care about something that feels like them getting a taste of their own medicine.

    Isn't that the very definition of schadenfreude that Ken was referring to?

  6. says

    So, did you notice that every single one of your "free speech triumphant" examples was "Left wins, Right loses"?

    Here's some free speech issues:

    A baker refusing to produce a cake with a pro-SSM message.

    A wedding photographer refusing to produce pictures glorifying SSM.

    Guess what? Engaging in that free speech gets you destroyed in public, sued, fined, etc.

    So
    1: Schadenfreude absolutely is A First Amendment Value
    2: Until the response to things like "shirtgate", or the Timothy Hunt smears (she lied about what he said, it's known she lied, her career hasn't been destroyed, his has), or the fight over Halloween costumes is to publicly crush and humiliate the anti-freedom SJWs, then there's no such thing as "Freedom of Speech", there's just "Left wing privilege". And I can't see any reason why any rational person should care about that.

    So I'm happy to see Gawker destroyed, and I can't wait to see this kind of thing repeated over and over again.

  7. Anon Y. Mous says

    Ken, I liked the article as far as it went, but I think there are important 1st amendment issues you failed to address. First, is there a first amendment exception for speech that invades the privacy of a public figure, such as Hogan. Obviously, the trial court thinks there is. But, as you pointed out in your piece, trial courts sometimes get the issues wrong. What about the court's ruling in this case?

    Secondly, Marc Randazza did an interview at Danger & Play stating that was was unlikely that Gawker would be able to appeal based on the law requiring them to put up 10% of the money first. Since the judgement was so large, they would not be able to come up with the money to even file an appeal.

    Is that kind of rule legitimate if it denies someone their first amendment rights?

  8. Gorshkov says

    A baker refusing to produce a cake with a pro-SSM message.

    Depends on the context.

    The baker (a person) refusing to talk to or associate with somebody or a group of somebodies is free speech.
    The baker (a business) refusing to serve a customer because of who or what he/she is, is a civil rights violation.

    A wedding photographer refusing to produce pictures glorifying SSM.

    Again – context.
    The photographer (person) refusing to attend a gay wedding is legal.
    The photographer (business) refusing to take wedding photos BECAUSE it's a gay wedding is a civil rights violation.

    See the difference?

  9. Sok Puppette says

    Although I agree that it's kind of weird to protect the "privacy" interests of an outragous public figure, what bothered me most about the Hogan/Gawker case wasn't actually the First Amendment part but the ridiculously disproportionate damages. There is no way Hogan was damaged $100 millon or even $10 million.

    I actually think it'd have been nice if the Constitution had banned punitive damages, or any awards of any kind that didn't serve to directly redress actual damage sustained. That way we'd not only avoid crazy awards like this, but we wouldn't see back-door attempts to avoid due process by disguising criminal fines as "statutory damages" or "civil forfeitures".

  10. OrderoftheQuaff says

    Schadenfreude is one of life's little pleasures which mitigates the awful darkness, and its expression is thankfully protected by the 1st amendment in this country. Ken's editorial was sound for what it said, and it raised the interesting question of whether Thiel could take down Popehat if he budgeted x amount of money for it.

    The $140 million verdict may have been based on a single question/answer at a deposition. IIRC, Mr. Denton was asked, approximately, what is the lowest age of a female in a sex tape at which you would refuse to publish the sex tape out of (morality/principles/conscience/whatever), and he said something like "Oh, about five." I am submitting this as a candidate for the single worst deposition answer in American legal history. The jury was not amused.

  11. Quiet Lurcker says

    @Gorshkov —

    The right of an individual to associate or not with someone as he/she sees fit is a red herring here.

    The right to refuse service does *not* equal discrimination. Let me repeat that:

    The right to refuse service does *not* equal discrimination.

    If you go to a bank and ask for a loan, you have to fit their criteria, or you don't get that loan, full stop. The bank is *discriminating* against a class of people: those who can't or won't repay the money they borrowed. The bank is exercising a right to determine whom to serve.

    If you go to a restaurant or grocery store, you are required to wear shirt and shoes (pants, I guess being assumed here). The restaurant is *discriminating* against a class of people: those who are not wearing shirt and/or shoes. The restaurant is exercising a right to determine whom to serve.

    Now explain to me the difference between a homosexual/lesbian couple and a poor person, or a person not wearing a shirt or shoes, *without* referring to a law or rule or regulation, or court decision.

  12. Ken in NH says

    Gorshkov, you conflate the issue as do many who agree with you. The baker does not refuse service to any class of people; he refuses service for a particular message. Should the gay couple want a birthday cake the baker does provide the service. When the gay couple requests a cake with a pro-SSM message on it, the baker refuses to be part of their speech. Should a straight couple ask for a cake with a message celebrating swinging, is the baker who refuses also breaking public accommodation laws in your view? What if a gay baker refuses to bake a cake for the Westboro Baptist Church with one of their vile messages on it? What if a black person asks for a cake with the N-word on it? What if a white person in full Klan regalia asks for the same? What if a woman asks for a cake with a message denigrating men and the baker refuses? Is it just assumed that he or she is refusing because the patron is a woman? Perhaps a Wiccan asks the baker for a cake with occultic symbols on it and the baker refuses?

  13. Anon Y. Mous says

    @Ken

    If you do decide to write about the issues I mentioned, I would be interested in reading your take on them.

  14. Daniel Weber says

    Ken didn't say that Gawker was denied due process, or that the outcome was wrong.

    He said that he should be careful.

    I have to agree with that. I'm very glad Gawker got Gawked, but we need to think hard what we've lost. I think something pretty minor, in that Gawker lost by publishing a sex tape recorded without the consent of either party. We won't really lose from our First Amendment rights if we can't do that in the future, but we need to be careful.

    It's funny how interested the left suddenly became about tort reform with this case. (And I've noticed people on the right who normally hoot and holler about tort reform being eerily quiet.) Hogan's case was, by definition, not spurious, because Hogan won and won big. But we should keep in mind that bogus lawsuits designed to drain the opponent are a real issue in the modern the court system.

  15. AH says

    @Anon Y. Mous

    Thanks for pointing Marc's interview out. I'm going to have to watch that now.

    Is it an accepted rule? Apparently. Is it a moral rule that is consistent with the idea that everyone should have equal access to the law? No.

  16. robbbbbb says

    Gawker doesn't work without the willing participation of its customers. They, and those like them, function because there's money to be made off of what they publish.

    So really, Gawker is a symptom of the devolution of our culture. It's our fault. If you loathe Gawker, then stay away from their trash. They only function if they get eyeballs.

  17. Resolute says

    @Protest Manager

    I would agree with Ken that schadenfreude is not a first amendment value. It is, however, a first amendment right.

    Also, the New York Post wishing good riddance to a site not much worse than it is is rather hypocritical.

  18. capnkrunch says

    … except that there are also cases of people refusing to make cakes that had no message at all, just because they didn't like the weddings they'd be used at.

    Which is why Protest Manager's examples aren't quite accurate. What actually happens is that people simply refuse to provide services for gay weddings. For example, you can call it "pictures glorifying SSM" but it's really just wedding photos of a couple that happens to be gay.

    If people refused services to interracial weddings because they didn't want to "glorify interracial marriage" it I think everyone would rightly agree that is a civil rights violation. I don't see what makes this different except that it is currently more socially acceptable to discriminate against sexual orientation that it is against race.

  19. Yarrgh says

    @OrderOfTheQuaff

    That's nearly what happened, except it was Albert Daulerio who gave that answer (and the answer was "four", not "five", not that it makes it more or less creepy). I'll agree that it is probably one of the worst possible answers anyone could give to a question like that.

  20. ShelbyC says

    People who don't care to think about the nuances of the first amendment in this particular case (and who has the energy to think about everything) are entitled to trust the courts to get is right, and feel schadenfreude.

  21. Tradegeek says

    "If people refused services to interracial weddings because they didn't want to "glorify interracial marriage" it I think everyone would rightly agree that is a civil rights violation. I don't see what makes this different except that it is currently more socially acceptable to discriminate against sexual orientation that it is against race."

    Your spot on.

    The nuance is this: You can't refuse service simply because a customer is a member of a protected class. Example: A known white neo-nazi walks into a bakery and orders a birthday cake that says "Happy Birthday Joe". There is no legal basis that you can refuse service because of his/her race or beliefs. However, if the same neo-nazi wants to order a cake that is decorated with a swastika with the caption "death to jews", the bakery would be well within the law to refuse to bake such a cake. The law is actually quite clear. There is a difference between refusing all service and refusing to do something which overtly implies you condone the message. Same would apply to SSM. A baker can't refuse to make a normal wedding cake like that sold to any other customer. They could, however, refuse to make a wedding cake that had a purely political message ("Being Gay is awsome!, for example) or an image they found offensive (two dudes going at it, for instance). There is nuance, and it's not really even a gray area.

    Also, the comparison to a bank lending money is ridiculous. Having poor credit is not a protected class. A bakery would not be required to sell a cake to a SSM couple if their credit card was declined. There is no comparison, legally or logically.

  22. Gorshkov says

    Gorshkov, you conflate the issue as do many who agree with you.

    Actually, I'm pretty sure that is it you who are conflating – the right of the individual (the person who happens to be a baker) to the obligations of the BUSINESS (the baker who happens to be a person).

    The baker does not refuse service to any class of people; he refuses service for a particular message. Should the gay couple want a birthday cake the baker does provide the service. When the gay couple requests a cake with a pro-SSM message on it, the baker refuses to be part of their speech.

    That's pretty well the textbook definition of discrimination.
    I (Gorshkov) am a baker. If a gay man walks up to me on the street and tries to start a conversation, I (Gorshkov) am well within my rights to tell him to bugger off, because gays are evil and horned and will roast in hell. That may make me an arsehole, but it is my right to be an arsehole. I am acting in my capacity as a private citizen.

    I am a baker, ,who happens to also be a person named Gorshkov. The same gay man comes to me in my store and asks me to bake him and his fiancee a wedding cake. I (A BUSINESS) tell him to bugger off because gays are evil and horned and will roast in hell. THAT IS DISCRIMINATION. I am acting in my capacity as a business.

    As an INDIVIDUAL, I have my rights, freedom of speech, freedom to (or not to) associate. As a BUSINESS, I do NOT. Which one applies depends on the context, which role I am playing.

    Should a straight couple ask for a cake with a message celebrating swinging, is the baker who refuses also breaking public accommodation laws in your view?

    Yes. See above.

    What if a gay baker refuses to bake a cake for the Westboro Baptist Church with one of their vile messages on it?

    Yes. See above.

    What if a black person asks for a cake with the N-word on it?

    Yes. See above.

    What if a white person in full Klan regalia asks for the same?

    Yes. See above.

    What if a woman asks for a cake with a message denigrating men and the baker refuses?

    Yes. See above.

    Is it just assumed that he or she is refusing because the patron is a woman? Perhaps a Wiccan asks the baker for a cake with occultic symbols on it and the baker refuses?

    Yes. See above.

    As long as the request is a normal part of my business, and not illegal ("draw me a pic of me having sex with a 5 year old"), I do not (nor SHOULD I) have the right to refuse.

  23. says

    It seems to me that the damages are disproportionate but the guilty verdict was reasonable. Ken, it seems you disagree, and I'd be interested in hearing more detail on your reasoning; you can probably convince me that I'm wrong.

    The irony that I'm a bit hung up on is that if Gawker had published the part of the video that actually legitimately harmed Bollea, the racist remarks that got him fired from the WWE, it would have had a much stronger case that the publication was newsworthy and served the public interest.

  24. Bob says

    Ken, it's too bad you had such a word limit in your opinion piece, but perhaps you could expand on the subject here. Like some of the commenters on the piece itself, I'm left wondering whether the trial outcome is questionable in light of the first amendment. I read your article with eager anticipation, but was left still thirsty for more lawsplaining.

    That said, I do find the magnitude of damages pretty intense. Really, $140 million? Not trying to minimize how emotionally devastating leaked nudes and sex videos can be, but my mother's firm sued the people responsible for violently breaking a 4-year-old's neck, and only asked for $100 million.

  25. kent says

    I was actually curious about your take. It is hard to ignore parallels between the Gawker situation and Charlie Hebdo.

    I keep coming back to the dynamic you highlighted in the opening paragraph of your "empathy" oped. Consider this: many points that form the basis for why it is accepted as given that Gawker is objectively horrible have emerged from characterizations in various lawsuits. On the flip-side of your virtuoso xylophone player can sit a plaintiff's attorney trying to amplify every potential negative to cast them as the worst scum of the earth. Was the kid *really* an anchor for the school band … or is he defined by ogling the breasts of a timpani player and a rude joke that left classmates uncomfortable? There is always someone who's job it is to cast a defendant as wholly inhuman.

    Gawker faces a situation with a dedicated team bringing a series of tactical lawsuits across many years. Each of these lawsuits – again and again and again – featuring a legal professional painting Gawker Media as worse than horrible. And these lawsuits were brought in a way that created the appearance a series of organic complaints were flowing in from an abused public. That perception has the potential to be highly psychologically manipulative.

    If one lawsuit happens … ok, maybe an overreaction or mistake. Two? Maybe there's a problem. Dozens? All painting the same basic picture? Well, obviously there *must* be a problem. At some point allegations become true in the court of public opinion regardless what a court says.

    I'd assert that for many casual observers a volume of similar lawsuits will increasingly lend credibility to the characterizations in the lawsuits. But that is only an effective rule of thumb when individual lawsuits are a result of individual initiative. When plaintiffs are being secretly recruited and essentially offered a paycheck to act as a front in a billionaire's attack, the only thing that can be assessed by the volume of lawsuits is perhaps the wealth of the person financing them.

    So before dissecting Hogan, maybe we should first stop to ask a deeper question: How much of the public perception that Gawker is horrible is based on the reality of their daily journalism … and how much of it boils down to uncritically adopting the frame of a plaintiff's attorney who has used the weight of many lawsuits to hammer home a narrative that services the unstated larger objective for a secret third party of destroying Gawker's credibility and commercial viability? Doesn't the perception itself *have to be* the result of a manipulation – at least to some degree?

    With that thought in mind, would you say you formed your opinion of Gawker by consuming their general content and coming away dismayed … or through reading complaints made against them and agreeing the complaints had merit? And do you think that even matters?

  26. kent says

    Thad: but airing Bollea's racist statements would not have provided evidence that he had been lying in public assertions; that he'd never had sex with the woman he was clearly shown having sex with in the segment of video Gawker released. Prior to Gawker publishing their contribution, Bollea had acknowledged the public interest and responded with statenents for publication in recognized mass media. Maybe we hate the fact that stuff like this is newsworthy, but denying it here seems like trying to cram toothpaste back in the tube after several outlets were clearly writing about it. So if liability is based solely on a standard of the video being newsworthy, I don't see how we deny that it falsed an assertion which Bollea himself had willingly and knowingly caused to be published in recognized new outlets.

    OTOH, bringing up the racist stuff doesn't seem to directly tie in to any active news story at all (at the time). Highlighting that would have been newsworthy only to the extent publicly excoriating people for being caught on video privately saying racist things is a socially accepted national passtime. Do you honestly think an intimate private discussion about who a person's daughter is dating becomes inherently newsworthy if the person says something racist while expressing themselves? I don't feel there was much news-based justification to air that stuff at all.

    For me the problem with posting the sex video is that, while the topic (and video itself) was newsworthy, legislatures have placed legitimate restrictions on the publication of explicit video. Such publishing requires ID verification, release forms, etc. Those requirements are reasonable and important to protect against a range of abuses. I don't agree that a topic being newsworthy releases the publisher of a pornographic video from following all of the legal requirements associated with engaging that class of protected speech. But as best I can tell, nobody has criticized Gawker for that at all.

  27. M B says

    Oh for… I swear every few months another idiot has to bring up the cake thing (and yet again get it wrong). Speech is not service.

    Bakers have been pretty uniformly supported by law and public policy (including prominent gay activists) when they choose not to WRITE WORDS that they disagree with – because words are speech. Bakers have refused to make a 'Happy Birthday Hitler' cakes, 'Hooray Gay Marriage' cakes (also 'Hooray Gay Marriage' t-shirts) and 'Boo Gay Marriage' cakes, and generally everyone agrees that's ok. No one can make you say anything you don't want to – even if they want you to say it with cake.

    Bakers have not been supported when they wanted to DENY SERVICES to people based on their sexual orientation. You can even say "I don't make wedding cakes because I hate marriage," and no one will care. If you say "I do make wedding cakes but I won't sell one to you because you're gay (or black, or jewish, or any other protected class)" that's discrimination and that's when law and public policy step in.

    Here's the short version: Does the Cake Have Words on It? It's speech, and you don't have to do it. Is it Just Cake? It's not speech, give the people their damn cake.

  28. libarbarian says

    I want to ask for a cake that says "I, the baker of this cake, like to molest underage goats" and see if they agree to do it.

  29. Ken in NH says

    M B, I'll give Gorshkov points for consistency. He loses points for not taking his consistency to its absurd conclusion. Obviously, once you go into business, you lose all of your rights and the bill of rights do not apply to you. So, if you're a heterosexual male stripper, you cannot refuse to perform for a gay party. In other contexts, being compelled to rub your junk against a person you do not find attractive is called sexual assault, but if you are in business and the state compels you, then you just have to lie back grind it and think of England diversity!

  30. jb says

    libarbarian,
    "Underage" is such an odd qualifier there. What is the age of consent for goats anyway?

  31. BadRoad says

    @kent

    OTOH, bringing up the racist stuff doesn't seem to directly tie in to any active news story at all (at the time). Highlighting that would have been newsworthy only to the extent publicly excoriating people for being caught on video privately saying racist things is a socially accepted national passtime.

    As opposed to the accepted national pastime of publicly excoriating people for their sexual indiscretions? I don't see a whole lot of difference, but there must be one for this point of yours to make any sense. And the difference has to be more than the fact that one had already made the news and the other hadn't, or else the first person to mention either would be just as much at fault, and anyone to subsequently mention either would be equally blameless.

  32. Lagaya1 says

    Quiet Lurker-

    When did people without shoes become a protected class? I missed that. Or people with bad credit? Your point hinges on that assumption. It is a false assumption.

  33. Chilichef says

    Ken, while I don't necessarily disagree with you in your editorial, I would like to make a couple of points.

    First, personally, I think this case may be limited to the facts of the case; the behavior by Gawker is actually pretty outrageous; publicly promoting a private sex tape, even one involving a public figure, absent some sort of relevant news value (i.e, if it had been politician sleeping with a pony then maybe). Just off the top of my head, I'm not seeing where it would fall under most heightened scrutiny, i.e, Sullivan, as it isn't really a libel case per se. I could be wrong on that. I do agree there's no guarantee judge and jury got it right, and I do think the damages are excessive, but I wasn't on the jury so my opinion is worth about what anyone elses is.

    Second: while you don't explicitly make the argument, when you talk about a 'court bankruptng a media company' you seem to imply that publishers, media companies and such should enjoy a heightened protection under the first amendment. Others have made the argument much more explicitly, such as Elizabeth Spiers over at Heatstreet talking about the Death Penalty for Media companies. Media organizations have argued this repeatedly; that under of the first amendment they are entitled to some sort of heightened protection or should be cut some slack because they are essential to a functioning first amendment. It was made in Branzburg v Hayes and rejected; and Zurcher v. Stanford Daily. Of course, media companies subsequently managed to get reporters shield laws passed. My point is, media organizations frequently argue that they should be held to different standards than 'other people' and maybe they should; but maybe they shouldn't, and I'm not willing to assume that media should automatically be given a pass on behavior that others would be held accountable for.

  34. Daniel Weber says

    I do find the magnitude of damages pretty intense

    If I smash your Corvette, I owe you the value of a Corvette, even though you smashed some guy's Yugo last year and only owed him the value of a Yugo.

    Try not to kill rich people. You'll owe more money to their estate than if you kill a poor person.

  35. Gorshkov says

    M B, I'll give Gorshkov points for consistency. He loses points for not taking his consistency to its absurd conclusion.

    Because I'm not absurd.

    Obviously, once you go into business, you lose all of your rights and the bill of rights do not apply to you.

    Wrong, and absolutly NOT what I was saying. Sorry, but I'm about to hit you with that consistency thing again. Here is my understanding, in a nutshell.

    You – a PERSON – has rights to do or not do certain things.
    You – a BUSINESS – do not.

    I, acting as a private individual, have rights to associate or not associate with people, have freedom of speech, the freedom to listen or NOT listen to whoever I want, the right to yadda yadda yadda.

    I, when acting as a BUSINESS, do not have the same rights as I do when acting in my capacity of an INDIVIDUAL.

    To be clear: I am a computer programmer. I have been self-employed as a consultant for 30+ years. If an African American comes up to me and says hello, I can tell him to bugger off because I hate n***ers. That makes me a dick, but I've the right to be a dick. If the same man comes to my office and offers me a gig, I can can refuse it because of scheduling. I can refuse it because it's not my specialty. They're valid business decisions. But if I refuse it BECAUSE I HATE N***ers, it's a civil rights violation. NOT a valid business decision.

    Maybe it's just my logical techie brain, but to me the difference is pretty obvious and incredibly clear. I honestly don't see why others can't see the differences between the two scenarios. No, I am not a lawyer, and stand to be corrected if one of them feels like weighing in – and I've no doubt there are all sorts of corner cases and nasty little technicalities hiding in there – but from what I've read and seen over the years, I've no doubt that I've got a pretty good grasp on the situation.

  36. Jackson says

    Ken – I think you are right that the ability to use meritless litigation as a form of economic terrorism really does require a deeper look.

    Ken – I doubt that the Gawker decision, in particular, is a problem. Even if I don't completely agree with what happened, this is not just "silencing free speech" in the usual (and enraging) vein that is so often seen. I think it could be fairly said Gawker ran face-first, naked, waving their dick around like a sword, into the revving blood-covered legal clusterfuck of a clash of rights issue when they published a secretly recorded sex tape over the objections of all parties involved.

    For once, I don't worry too much about this. It's hard to square a decision that Gawker has 1st amendment rights that trump not just Bollea but also the woman in the tape with any law that would appropriately restrict revenge porn. I don't think we missed the mark badly here, and it's probably not a good example of a case that should provoke people to think about reform (which is, of course, why we are invariably talking about this instead of something more useful).

    But you are right the system has issues.

  37. Total says

    Sorry, but I'm about to hit you with that consistency thing again

    Is there a reason you think that the law is consistent?

    To be clear: I am a computer programmer

    Programmers and engineers do have this entertainingly naive belief that the rules of their professions apply neatly elsewhere.

  38. Gorshkov says

    @Total:

    Is there a reason you think that the law is consistent?

    What I was referring to was a previous claim that my LOGIC was consistent. Whether or not the same can be said about the law is another matter.

    Programmers and engineers do have this entertainingly naive belief that the rules of their professions apply neatly elsewhere.

    No, I'm not naive. I'm a 58 year old man, and I've been through a lot of crap in my life – some good, some bad. I'm not some 20-something who's never left school or my parent's basement, who looks at the world through rose-coloured glasses.

    That being said – I've been interested in these topics for almost all of my adult life, and have read about them extensively. What I say here is my understanding of how it works, and where the demarcation is – if I'm wrong, I would fully expect that one of the many lawyers here would point out my errors and show me where I'm wrong – and I'd thank them for it. It's how we learn.

    Denigrating my opinion and calling me naive because I don't agree with you, or because you don't think logic should apply, doesn't cut it.

  39. Ken in NH says

    Gorshkov,

    I apologize for not being clear. Apparently, you lose all your rights or you lose your business. So, must the heterosexual male stripper also provide services to gay clients? Or must a homosexual male stripper provide services to female clients? Perhaps they refuse an entire protected class of people (sexual orientation or gender) because not because they hate that class but because they do not find sexual interest in that class.

    Perhaps a baker refuses to bake a cake with a message they disagree with not because they hate a class of people but because they disagree with the message. Does disagreeing with a message mean you hate people who do agree with it? The Stutzman case in Washington is quite illustrative. Mrs. Stutzman refused a long-time client whom she knew to be gay and considered a friend only for the once instance of his wedding ceremony. So she did not refuse him when he bought flowers for his partner or other people even knowing he was gay. How can you say that she refused a class of people when she regularly provided services to them, but in one circumstance refused?

    What about your circumstance? Assuming you do not agree with the ideals of ISIS, would you provide a web application (assuming that is within your specialties) that is used to recruit and spread their ideology? Should the government force you, at pain of losing your livelihood or fines and imprisonment, to provide your services to them? Are you not really discriminating against them based on religious affiliation if you do refuse them?

  40. capnkrunch says

    @Ken in NH

    Once again, your analogies are not quite apt. They're not refusing to make pro gay marriage cakes or websites or whatever. A more appropriate, as I said before would be that of refusing services to an interracial wedding. Selling flowers to African Americans every week doesn't make it OK to refuse to provide services to an interracial wedding. There's nothing that says that civil rights violations require a pattern of discrimination.

    Or what if it was reversed? A gay florist could not refuse to provide services to a Catholic wedding because he disagreed with the beliefs.

    Or a DJ might DJ parties hosted by Jewish people but that doesn't make it OK for him to refuse to provide services for a bar mitzvah because he disagrees with the Jewish religion.

    Gorshkov is wrong in that businesses can't be forced to create a message but you are also wrong because that's not what's going on and the comparisons you are trying to draw are deliberately inept. Note that in the Stutzman case you brought up she wasn't asked to create pro gay marriage messages; she was asked to decorate a wedding that happened to be gay and refused because of that.

    M B summed it up nicely

    Here's the short version: Does the Cake Have Words on It? It's speech, and you don't have to do it. Is it Just Cake? It's not speech, give the people their damn cake.

  41. capnkrunch says

    Also note that Stutzman has so far lost her cases. The positioning of this as a "religious freedom" issue is absurd. Religion has always been one of the go to defenses for bigotry and yet we seem to need to go through this whole song and dance every time…

    Your right to religious expression does not mean right to discriminate because of your beliefs.

    On topic, wouldn't the sex tape be obscenity? Also what kent said. Where's the 18 U.S.C. 2257 records?

  42. Gorshkov says

    @Ken in NH:

    Apparently, you lose all your rights or you lose your business.

    This is going to be my last posting in this thread – it's starting to get tiresome & repetitive – and to be perfectly honest, I think some of you are being intentionally obtuse. I'll make one more attempt to explain what I meant, and where I think the demarcation is. If that doesn't work, so be it. I am explaining what I think to the the rule GENERALLY. I have no interest in going down the rabbit hole of corner cases, exceptions and ridiculous "what-if" scenarios.

    I am an individual. As such, there are rules I have to follow, rights I enjoy. I have the right of freedom of association, freedom of speech, etc. I also have to obey the rules – file my taxes, based on my personal income, have a liscense before I operate a motor vehicle.

    I am a consultant, and conduct business as a consultant. I am registered with the government as a business. My business has rules to follow that differ from the rules *I* follow as an individual. I have to file CORPORATE tax returns and income taxes. As a business, I cannot get a driver's license. That's for people, not companies.

    As an individual, I can associate with whoever I want to. As an individual, I can NOT associate with whoever I want to – on any arbitrary basis I see fit. I can date blondes but not redheads because I think they have cooties. Doesn't matter – it's up to me. I"m an individual. Same for gays, African Americans, Jews, or anybody outside my gene pool. Odious, but legal.

    When I am working, I am not Gorshkov the Invididual. I am Gorshkov, representative of THE COMPANY.
    THE COMPANY does not enjoy the same rights as I do. THE COMPANY is not allowed, by law, to refuse to serve somebody on the basis of their religion, orientation, or race. Full stop. If I, Gorshkov – acting in my role as representative of THE COMPANY – or anybody else working for me – tells somebody with a funny black beanie on his head to bugger off 'case we don't do beanies here, I can expect to be sued – AS IS RIGHT.

    To me, it's a pretty simple, obvious distinction of roles, and I honestly can't think of why some people here, at what is primarily a law blog, can't SEE that distinction. As I've said before, if I'm missing something and one of the lawyers here wants to point out my error and explain why I'm wrong, I'd appreciate it.

    The Stutzman case in Washington is quite illustrative. Mrs. Stutzman refused a long-time client whom she knew to be gay and considered a friend only for the once instance of his wedding ceremony. So she did not refuse him when he bought flowers for his partner or other people even knowing he was gay. How can you say that she refused a class of people when she regularly provided services to them, but in one circumstance refused?

    I don't know how many thousands of times I've gone into a bank and either given them money or got mine out without incident. But when I've been convicted of bank robbery, I don't expect to be winning any brownie points for that when the Judge is figuring out how many years I'm going to be spending behind bars.

    Assuming you do not agree with the ideals of ISIS, would you provide a web application (assuming that is within your specialties) that is used to recruit and spread their ideology? Should the government force you, at pain of losing your livelihood or fines and imprisonment, to provide your services to them? Are you not really discriminating against them based on religious affiliation if you do refuse them?

    Bad example. Providing material support for a terrorist group is illegal under the Patriot Act.

    Assuming that was NOT the case – I still wouldn't. But my refusal would not be on the basis of their religious affiliation – it would be because they were terrorists. I'd have the exact same reaction to the IRA, or any other terrorist group.

    And please, do NOT come back with that old trope "one man's terrorist is another man's freedom fighter", because it's bullshit. Freedom describes WHAT you are fighting for. Terrorism describes your tactics – HOW you fight for it. Big difference.

  43. BadRoad says

    @Chilichef

    Second: while you don't explicitly make the argument, when you talk about a 'court bankruptng a media company' you seem to imply that publishers, media companies and such should enjoy a heightened protection under the first amendment. Others have made the argument much more explicitly, such as Elizabeth Spiers over at Heatstreet talking about the Death Penalty for Media companies. Media organizations have argued this repeatedly; that under of the first amendment they are entitled to some sort of heightened protection or should be cut some slack because they are essential to a functioning first amendment. It was made in Branzburg v Hayes and rejected; and Zurcher v. Stanford Daily. Of course, media companies subsequently managed to get reporters shield laws passed. My point is, media organizations frequently argue that they should be held to different standards than 'other people' and maybe they should; but maybe they shouldn't, and I'm not willing to assume that media should automatically be given a pass on behavior that others would be held accountable for.

    I could buy the idea that media companies (and individual reporters) should be held to different standards than lay citizens, but I believe they should be held to stricter standards, the same way professionals in other industries are held to specific standards in their areas of expertise. A reporter puts food on the table by researching current events and explaining them to an audience, day in and day out. Such a person should be expected to know the difference between protected and unprotected speech the same way engineers and doctors are expected to know and adhere to their own codes of ethics.

    Naturally I would expect media companies to lobby for more lenient standards for themselves, the same way manufacturing, construction, mining, and power companies lobby for more lenient pollution guidelines.

  44. Total says

    What I was referring to was a previous claim that my LOGIC was consistent. Whether or not the same can be said about the law is another matter.

    Well, look, happy as I am to chat about your logic for hours on end, it's about as useful generally as the Kardashians.

    No, I'm not naive. I'm a 58 year old man, and I've been through a lot of crap in my life – some good, some bad. I'm not some 20-something who's never left school or my parent's basement, who looks at the world through rose-coloured glasses

    And yet you keep being naive.

  45. Ken in NH says

    Gorshkov,

    Assuming that was NOT the case – I still wouldn't. But my refusal would not be on the basis of their religious affiliation – it would be because they were terrorists. I'd have the exact same reaction to the IRA, or any other terrorist group.

    So, I finally found a limit for your point of view. I guess you are predicating it on terrorists not be a protected class, but I accuse you of violating accommodation laws because ISIS is an Islamic organization (almost as if it was in the name). (Yes, aiding terror statutes notwithstanding.) So how do you split that hair? But let's move away from a group that has been designated as a terrorist organization. Would you also refuse to build a recruitment web site for the Westboro Baptist Church? If so, on what basis? If not and presuming you find their message as disgusting as I do, how do you maintain your integrity and reputation having created a message you revile?

    As for the Stutzman example, you use circular reasoning. You presume that what she did was a crime, therefore her willingness to serve the class of people that she supposedly discriminates against does not mitigate her supposed crime. The point is that she clearly is willing to serve gay people period. She has proven that over and over again. She probably still serves gay people (assuming she is still in business). In other words, she did not discriminate against a protected class, but the content of their request.

    If I, Gorshkov – acting in my role as representative of THE COMPANY – or anybody else working for me – tells somebody with a funny black beanie on his head to bugger off 'case we don't do beanies here, I can expect to be sued – AS IS RIGHT.

    And here we find your ignorance. You are legally allowed to not serve someone because they wear a hat you do not like (or wear hats in general). People who wear black beanies are not a protected class. And now you are legally discriminating and on a petty, arbitrary basis (at least I presume you have no religious proscription against black beanies). If this were not true then businesses who post "no shoes, no shirt, no service" are legally liable and yet none have been prosecuted and I am willing to wager serious money that any individual suing them would be laughed out of court, even in this day and age.

    One more question, why do you ignore the male stripper scenario? Perhaps you think it absurd, but why should you? A male stripper who goes to people's houses to entertain is a businessman as much as you are. In your view, he should have no right to dance for female clients at bachelorette parties and yet refuse to do male parties. Or do you believe he has that right? If so, why?

  46. Gorshkov says

    @Ken in NH says:

    Ok – now I'm 99% positive that you're just trolling and being deliberately obtuse. But to give you the benefit of the doubt, I'll answer anyway.

    I guess you are predicating it on terrorists not be a protected class, but I accuse you of violating accommodation laws because ISIS is an Islamic organization (almost as if it was in the name). (Yes, aiding terror statutes notwithstanding.) So how do you split that hair?

    I don't, because I'm not splitting any hairs. My refusal would be based on the fact that they were a terrorist organization, and the fact that they were Islamic would, to me, be utterly and totally beside the point. Which is exactly why I said I would ALSO refuse the IRA, for the same reasons. Which is why I'm so sure you're just trolling.

    Would you also refuse to build a recruitment web site for the Westboro Baptist Church?

    No

    If not and presuming you find their message as disgusting as I do,

    I do

    how do you maintain your integrity and reputation having created a message you revile?

    Because integrity is based on doing the right thing, even when you don't want to. I can't expect them (or anybody) to respect MY rights, unless I'm willing to respect theirs.

    As for the Stutzman example, you use circular reasoning. You presume that what she did was a crime,

    Because it was. That's why she was tried and convicted.

    therefore her willingness to serve the class of people that she supposedly discriminates against does not mitigate her supposed crime.

    It doesn't.

    The point is that she clearly is willing to serve gay people period. She has proven that over and over again.

    The point is that it is illegal to refuse to serve gay people BECAUSE THEY ARE GAY. How many times you have in the past, or will in the future, is absolutely irrelevant to whether or not you refused to serve them THIS time. That's what she was charged with.

    She probably still serves gay people (assuming she is still in business). In other words, she did not discriminate against a protected class, but the content of their request.

    It doesn't matter how many times she served them. What the law is concerned with is the fact that she refused to serve them BECAUSE THEY WERE gay. That means she broke the law. I can see you now the next time you get a ticket …. "But your Honor! I've put 350,000 miles on this car and I've never before been accused of driving 150mph in a school zone!" Don't bet on being able to beat the charges.

    And here we find your ignorance. You are legally allowed to not serve someone because they wear a hat you do not like (or wear hats in general). People who wear black beanies are not a protected class.

    This one is my fault, and self-inflicted. I assumed that it would be understood that I was referring to a yarmulke. By going back and re-reading, I realize the reference was not as obvious and clear as I thought. If you go back and re-read now, you'll see that I WAS (trying) to talk about a protected group – Jews.

    One more question, why do you ignore the male stripper scenario? Perhaps you think it absurd, but why should you? A male stripper who goes to people's houses to entertain is a businessman as much as you are. In your view, he should have no right to dance for female clients at bachelorette parties and yet refuse to do male parties. Or do you believe he has that right? If so, why?

    Because in first reading, yes, I DID think it was absurd. On reflection, I don't – I suspect it comes up a lot more often than I originally though.

    To be consistent – and honest – I would have to say that no, I don't think he should have the right to refuse.

    This really *is* my last entry in this thread

  47. andrews says

    An appeal bond will prevent execution. If Gawker can put up the bond, they will not have everything they own sold before the appeal is determined. Otherwise there may be nothing but a crater to prosecute the appeal. There is a risk, if the ptf has had execution, that he may be required to restore what was wrongfully taken following a successful appeal.

    As to the merits: Gawker was the wrong defendant. After the "Pentagon Papers" case, we should understand that there may be penalties associated with obtaining material. Stealing a bus-load of papers, or secretly taping someone without consent, may be subject to penalty. That is, if they had found Deep Throat and could prove that he took the papers from his office to meet with the reporter, he would be on the hook for that.

    The next step, publication of something of possible public interest, is where the First Amendment comes in. The newspaper could publish the papers, though the government thought it bad, because we protect such things. Likewise, Gawker could publish the video that proved that Hulk Hogan was dishonest, because we protect such things.

    The comparisons are a bit clunky. Many people are likely to agree, 40-odd years later, that the government lying about getting us into a war was worthy of publication. Not so many people care about whether Hulk Hogan was dishonest in something whose specifics they cannot recall.

  48. libarbarian says

    @jb,

    2. The age of consent for goats is 2.

    I am a bit of an expert in goat law.

    It's a bit of a niche field.

  49. Chilichef says

    @BadRoad:
    I could buy the idea that media companies (and individual reporters) should be held to different standards than lay citizens, but I believe they should be held to stricter standards, the same way professionals in other industries are held to specific standards in their areas of expertise. A reporter puts food on the table by researching current events and explaining them to an audience, day in and day out. Such a person should be expected to know the difference between protected and unprotected speech the same way engineers and doctors are expected to know and adhere to their own codes of ethics.

    The basic problem is, reporters aren't professionals. They call themselves professionals, but they are not professionals. Truck drivers call themselves professionals; Real Estate agents call themselves professionals; but they aren't professionals in the sense of needing at least a college degree in the field and passing a licensing exam. The two examples you use, engineers and physicians, both need to have a college degree, at the minimum, and in the case of professional engineer, either additional experience or advanced degree and both pass a test, as do lawyers, pharmicists, and other professions. If you screw up enough, they can pull your license and you can't practice medicine or engineering. You don't need a license to be a reporter; you don't need particular training or a college degree in the field. From a practical viewpoint it might be tough getting a job without a degree in journalism, but there is no legal requirement to do so and there certainly isn't an exam you have to pass to become a licensed journalist. And while there are organizations that purport to be for professional journalists, and they may have a code of ethics or conduct, all of them are aspirational; no one is going to lose their journalist license for failure to abide by it. So, I don't have a problem holding them to the same standard as anyone else; I don't think they should necessarily be held to higher standard but I definitely question whether they should be held to lower standard because "first amendment".

  50. BadRoad says

    @Chilichef

    The basic problem is, reporters aren't professionals. They call themselves professionals, but they are not professionals. Truck drivers call themselves professionals; Real Estate agents call themselves professionals; but they aren't professionals in the sense of needing at least a college degree in the field and passing a licensing exam.

    Truck drivers, depending on the size of the truck, need a CDL, which has additional requirements to obtain and retain than a standard driver's license. Real estate agents are certainly licenced and can have that license revoked for misconduct; I don't know if they need to pass a specific test or need any kind of college degree (though I could ask my father, who is licensed), but I do know they need to take periodic classes to maintain that license.

    You do make a good point about the lack of a journalism license, and I doubt such a license could be required without abridging First Amendment protection. However, there have certainly been journalists who display a great degree of professionalism, though they seem to be a dying breed. Market forces don't seem to be incentivizing responsible journalism any longer.

  51. Nop says

    @Quiet Lurcker

    The right of an individual to associate or not with someone as he/she sees fit is a red herring here.
    The right to refuse service does *not* equal discrimination.

    The SCOTUS says you're wrong. Have fun tilting at that particular windmill, Don Quixote.

  52. Nop says

    @Ken in NH says

    I apologize for not being clear. Apparently, you lose all your rights or you lose your business. So, must the heterosexual male stripper also provide services to gay clients? Or must a homosexual male stripper provide services to female clients?

    I don't know what American law – which is notoriously wacky when it comes to sexual matters – says about that, but I can confirm that both those scenarios are completely standard & expected in the stripping industry, so any stripper who objected to either would starve. (And in fact most male strippers are gay.)

    Perhaps they refuse an entire protected class of people (sexual orientation or gender) because not because they hate that class but because they do not find sexual interest in that class.

    And speaking of charming naiveté, that's a perfect description of your belief that strippers are sexually interested in their clients, which is almost never true.

  53. RG Barnes says

    the right for the New York Times to publish the Pentagon Papers without prior restraint

    Could someone expand for this layman on the difference between "prior restraint" and getting an injunction to prevent an action?

    Thank you.

  54. Garrett says

    To the experts in litigation:

    Had Gawker executives not acted like fools on the stand, and had they not violated the take-down order, is there an estimate as to what the judgments in this case would have or should have been? That is, how much of this is an actual tort and how much of this is because Gawker didn't know when to stop digging?

  55. Tim! says

    @Chilichef:

    they aren't professionals in the sense of needing at least a college degree in the field and passing a licensing exam

    A professional Xer is someone who gets paid to do X, usually as their primary means of income, particularly if there is a system of training or qualification for X.

    Someone who makes their primary income reporting is absolutely 100% a professional reporter. The fact that they haven't mastered the skills required of a reporter or taken any journalism classes makes them a poor reporter, not an amateur.

  56. Dan says

    The facts of the case in question, unless I am mistaken, involve a website being sued for publishing what amounts to 'revenge porn'.

    Damages were awarded based on that conduct and not, in any way, on the any instances of Gawker 'outing' gay people or running campaigns against politicians or exploiting and embarrassing all and sundry in their shameless pursuit of per-click ad revenue.

    That Thiel's vendetta against Gawker saw him funding the campaign has nothing to do with the facts of the case itself or the assessment of damages awarded.

    I have no love or admiration for any of the people involved here and do not wish to suggest that, on a personal or ethical level, Thiel can be favourably compared to a lawyer taking pro-bono cases. Yet the fact remains that, like a lawyer taking a pro-bono case, Thiels financial backing allowed the plaintiff to use an experienced legal team and take the case to court where he could have it assessed and decided on by a jury.

    I do not know Bolea's personal situation but the financial backing provided certainly allowed him to turn down the settlement offered by Gawker in favour of having the case heard.

    Far, FAR too many people seem to be focussed on the overall nature of Gawker and frame this case as though the salient issue was whether a billionaire should be allowed to ruin a media outlet because he didn't like something they wrote about him.

    While this is, in a way, certainly part of the overall context of the case, it has nothing to do with the facts of the case or the merits of the arguments, which are that a website published revenge porn and that this act warrants damages to be awarded to the subject of the published pornographic video.

    To forget that and focus on the 1st Amendment question of Gawker writing mean things about people it doesn't like is to ignore what was a gross invasion of the privacy and dignity (such as it is) of a private citizen.

  57. WuzYoungOnceToo says

    …whether a billionaire should be allowed to ruin a media outlet…

    And said billionaire is not even who ruined Gawker. That honor goes to Gawker and its own actions.