I recognize that not everyone agrees that the jury verdict against Gawker in the case brought by Hulk Hogan was a disaster for the First Amendment. I disagree. As we explained, even if you dislike Gawker and believe that it was a terrible smut rag that deserved to go out of business, the lawsuit presented a clear blueprint via which the famous and wealthy could attempt to silence any publication -- even those doing legitimate reporting. We, somewhat obviously, are feeling the rather direct effects of that ourselves, given that we're facing a lawsuit filed by the same lawyer who represented Hogan.
But, here's yet another example of the chilling effects created by the Hogan verdict directly. You may have heard, recently, about a fairly astounding story, reported by famed music reporter Jim DeRogatis, that the singer R. Kelly was "holding women against their will in a 'cult.'". The story is quite incredible and detailed. It was published in Buzzfeed which, despite its reputation for viral videos and top 10 gif lists, has been publishing some amazing reporting over the past few years.
But the story of why it was in Buzzfeed, and how the Hulk Hogan verdict almost kept the story from being revealed at all is important, and highlights the chilling effects of the Hogan verdict, and how it is likely stifling other important stories about the rich and famous from being published. DeRogatis, beyond his many years of excellent reporting about music and the music world, has tangled with R. Kelly before. You may be familiar with some older controversies involving Kelly... and most of those were also broken by DeRogatis, starting way back in 2000, when he broke the story of R. Kelly having sex with teenaged girls. DeRogatis was also deeply involved in the criminal trial of Kelly a decade ago (in which Kelly was eventually found "not guilty.")
You can read the details of DeRogatis' latest story at Buzzfeed, but that's not the part that really interests us at Techdirt. Instead, it's the fact that multiple publications wouldn't publish this latest story -- often pointing to the Hulk Hogan verdict as the reason why. DeRogatis discussed the background to the story with Josh Levin at Slate, which includes this tidbit:
What was the reporting process like? Was most of that time spent trying to get people to talk?
Most of that time was spent, post–Hulk Hogan and Gawker, finding a media outlet that was willing to run it. I’ve been working with BuzzFeed since Wednesday afternoon, and those were 12-plus–hour days every single day until this morning.
So... that's interesting. Here you have a well-known, well-respected reporter who has a long history of breaking these kinds of stories about R. Kelly -- and the hardest part was finding a publication that would actually publish the story? Because of the Hogan verdict? Margaret Sullivan, over at the Washington Post goes deeper into the chilling effect of the Hogan verdict on DeRogatis's reporting saga.
Three separate media organizations were interested but got cold feet at the last minute, DeRogatis said. Each one, after investing months of work, backed away from the story that used named sources and documents to describe how women near Atlanta and Chicago were held as if in a cult, according to what parents and others had told police. (DeRogatis declined to name the news organizations because of his appreciation of the editors he worked with; they weren’t the ones who pulled the plug. They include a regional print publication, a world-famous multimedia behemoth and a radio-based digital outlet.)
“Gawker came up in a lot of those conversations,” DeRogatis said, referring to the snarky and risk-taking website that was put out of business last summer after a lawsuit brought by Terry Bollea, also known as Hulk Hogan. The invasion-of-privacy suit was bankrolled by billionaire Peter Thiel, a confidant of President Trump.
“Nobody wanted to take that risk.”
Nobody wanted to take that risk. To break a major story about a celebrity potentially holding women against their will. Argue all you want that Gawker was about sex and privacy, or that Gawker was sleazy -- none of that changes that the case created real chilling effects. It provided the rich and famous with a clear path to try to silence publications or scare them away from publishing true stories. And it put the fear of such attacks deep into the hearts of many media publications, including those with experienced legal teams.
As Sullivan concludes in her piece:
Plenty of people were disgusted by Gawker’s airing of the Hulk Hogan sex tape and, as a result, not unhappy to see the site go out of business. But some of them would be less pleased to know that a story like the R. Kelly reporting — or many others that we don’t know about — might never see the light of day.
But it's probably worse than that, because at least the Kelly piece was published. We'll probably never know about a variety of other -- potentially important and newsworthy -- stories that aren't getting published at all out of a fear over these kinds of lawsuits. Even when the reporting is solid and the reporters and editors and lawyers all believe the story is protected speech, just the threat of these kinds of lawsuits can scare away many publications and completely kill important stories. This is why having a strong First Amendment matters, and it's why verdicts like the Hogan one against Gawker can cause so many problems even if -- actually especially if -- you disliked Gawker. We should be even more serious about protecting the free speech rights of those we disagree with, as they often need those protections the most.
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