Abstract
Instead of relying on landmark First Amendment case-law opinions alone, many American media law teachers supplement these opinions with books about the cases. Consider Fighting Faiths on Abrams v. United States (1919), Minnesota Rag on Near v. Minnesota (1931), Make No Law on New York Times Co. v. Sullivan (1964), Newsworthy on Time v. Hill (1967), Flag Burning & Free Speech on Texas v. Johnson (1989), and Reckless Disregard on St. Amant v. Thompson (1968). These works delve into not only the sociopolitical issues of those cases but also the human and institutional players involved.
Nearly all of these book-length stories about seminal Supreme Court decisions revolve around the decisions’ enduring impact on Americans. Few have focused on trial court proceedings—so Conspiracy: Peter Thiel, Hulk Hogan, Gawker, and the Anatomy of Intrigue by Ryan Holiday is truly one of a kind.
As its title indicates, this page-turner centers on billionaire Peter Thiel’s plot to secretly fund a lawsuit in the mid-2010s by Terry Bollea, better known as Hulk Hogan, against Gawker Media. The much-discussed lawsuit started with Gawker’s publication of professional wrestler Hogan’s sex tape in 2012.
Bollea v. Gawker has been fodder for more than just Holiday’s book. It’s featured in Netflix’s documentary “Nobody Speak: Trials of the Free Press.” At the time of the case, three movies were reportedly in the works, one of which was adapted from Conspiracy. More recently, Hogan’s attorney, Charles Harder, published Gawker Slayer, one chapter of which is titled “The Mystery Backer Who Leveled the Playing Field.”
Although Conspiracy was published in 2018, it remains increasingly relevant to freedom of the press in the United States. After all, Thiel’s insidious funding of antimedia litigation is no longer an anomaly in American press law. “In our experience,” media law attorneys George Freeman and Lee Levine stated in the Washington Post recently, these [news media libel] cases are not typically intended to secure compensation for actual injury to reputation . . . [M]any of these cases are funded not by the allegedly aggrieved plaintiff, but by wealthy individuals and institutions with ideological or political axes to grind and scores to settle.
The recent libel case of Sarah Palin, a former vice-presidential candidate, against the New York Times Co. has brought the book’s themes to the forefront again: her lawsuit could cost millions if she appeals all the way to the Supreme Court, and people are wondering if someone else will be financing that long-shot lawsuit.
“The Planning,” Part I of Conspiracy, centers on how Gawker’s outing of Thiel as gay in 2007 prompted him to address the “Gawker Problem.” Four years later, he accepted a proposal from “Mr. A” to covertly invest US$10 million and 3 to 5 years in locating and bankrolling potential litigation against Gawker. (Mr. A remains anonymous in Conspiracy per Holiday’s promise; but before the book’s release, reporter Ryan Mac, then at BuzzFeed and now at the New York Times, identified him as Aron D’Souza.)
“The Doing,” Part II, details how Thiel got involved in the Gawker case. The publication of the Hogan tape and subsequent Bollea case could not have come at a more opportune moment for Thiel and Co.; Thiel committed himself to underwrite the precedent-setting “total destruction” of Gawker in late 2012 (p. 144).
Part II’s “The Power of Secrets” chapter is perhaps the best discussion of why Thiel’s conspiracy was kept completely and deliberately under wraps throughout the whole process. The book includes fascinating narrations of Harder’s location in Los Angeles, not San Francisco or Washington, D.C.; Mr. A’s fitting profile as a discreet “shadow” player in the conspiracy (pp. 150–52); and the disclosure of Thiel as the “mystery benefactor” of the Gawker case (p. 152).
The book is about more than Thiel as the central figure behind the scenes, though. The book also focuses on how the discovery and depositions in Bollea revealed otherwise unknowable information about Gawker as an exploitative media organization. The Florida jury trial of 2016, the book notes, highlights the courtroom confrontation between Gawker’s uncompromising free-press defense and Hogan’s right of privacy. The author’s criticism of Gawker’s no-holds-barred rejection of Hogan’s claim is reminiscent of Justice Felix Frankfurter in Pennekamp v. Florida: “Without a lively sense of responsibility, a free press may readily become a powerful instrument of injustice” (328 U.S. 331, 365 (1946)).
Part III (“The Aftermath”) offers the author’s take on the actual or perceived lessons of the conspiracy surrounding Thiel’s long-planned, take-no-prisoner revenge against Gawker. From a broad First Amendment perspective, the Thiel-versus-Gawker saga did not set a case precedent as such. Indeed, the jury verdict against Gawker was no surprise to those familiar with the recent development of privacy law trumping press freedom.
Conspiracy should be valuable to journalism and mass communication students and their teachers by helping them delve into freedom of the press in real life—and lack thereof. News media can be (and are) sued more often now than ever before in a conspiratorial way. Transparency is not the rule here simply because it undercuts the whole game. As Holiday concludes, the events surrounding the “conspiracy” have challenged a lot of conventional assumptions for media practitioners and, equally important, for media consumers who feel wronged or mistreated by the news media.
Conspiracy is an engrossing, fast-paced read that significantly highlights an important, but rarely discussed, question amid the conspiracy-clouded lawsuits against media: Who will be enriched by the multimillion-dollar litigation? More likely than not, it will be neither the allegedly defamed or privacy-invaded plaintiff nor the media obsessed with the “right to know.” Rather, the lawyers will be the ultimate winners in the proxy war between the deep-pocketed conspirators and the mismatched media, with the public watching from the sidelines. And that is probably the sobering lesson from Conspiracy.