It’s been awhile since a documentary has truly terrified me about the state of our world today. Brian Knappenberger’s film Nobody Speak: Trials of the Free Press did just that, and I hope it’ll scare you too. Beginning with an examination of Hulk Hogan’s court case against Gawker Media, the film delves into the current state of American Journalism and free speech as a whole.
At first the case seems clear cut. Gawker posted a sex tape featuring Terry Bollea (Hulk Hogan), which was filmed without his consent. Bollea sued. Gawker claimed free speech. Where a publication relates to “a matter of public concern” and is truthful, the First Amendment protects it. Bollea’s team says the video wasn’t a matter of public concern.
The case was tried in Florida state court, only a few miles from Bollea’s private residence. The fact that it was tried in state court rather than federal is significant. Having lived most of his life in Florida, Bollea is seen as a hometown hero to many. In contrast, Nick Denton, A.J. Daulerio and the rest of the Gawker team appear as the snobbish New York media elite, looking to prey on good, hardworking Americans. Gawker lost the case.
Bollea broke down and cried with relief when the verdict was read. Denton was later described by jury members as showing absolutely no remorse. He says himself that his face was absolutely blank. It’s a moment that perfectly exemplifies how easily Gawker, and the news media in general can be seen as the villain, or as President Donald Trump puts it, “the enemy of the American people.”
However, the real story is only just beginning. The courtroom drama tells only one small part of a much greater narrative, featuring a mysterious benefactor and the techno-metropolis of Silicon Valley.
Back in 2006, Bollea was videotaped having sex with Heather Clem without his knowledge or consent. The recording was apparently done by Bubba Clem, Heather’s husband and Bollea’s best friend. Bubba Clem, a former radio host known as Bubba the Love Sponge and a fairly famous personality around his native Florida, was present in the room at the time of the sexual encounter and all parties were aware and consenting of this. It was fairly common for him to watch his wife have sex with other men, he later had to admit. The only unwelcome party in that particular sexual encounter between Heather Clem and Terry Bollea was the video camera, which recorded the whole thing.
Flash Forward to 2012 when Gawker editor AJ Daulerio received a tip that such a tape existed. He was then sent a 30 minute video which Gawker edited down to two minutes, including 30 seconds of explicit sexual activity.. On October 4 the video was published on Gawker.com in a post titled, “Even for a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed is Not Safe for Work but Watch it Anyway.”
Bollea sued both Gawker and Bubba Clem. The Clem case was settled fairly quickly outside of court, and Clem paid Bollea $5,000 in damages. From Gawker a far higher sum of $100 million was demanded. His claims included invasion of privacy, infringement of personality rights, and intentional infliction of emotional distress. Gawker said it received the video from an anonymous source, and therefore that it should be protected under the First Amendment. Hogan is a public figure who discusses his sexual prowess on Howard Stern’s radio show and more or less pre-promoted the sex tape by talking about it on the gossip site TMZ. in an article for Bloomberg View, Noah Feldman explains the case,
“Gawker’s constitutional right to publish content the public wants to consume outweighs what little privacy interests a public figure like Hogan may derive from state law. Even a film clip counts as content under the First Amendment.”
Gawker is no stranger to lawsuits. The brainchild of Nick Denton and Elizabeth Spiers, the news site aimed to tell the stories other journalists wouldn’t, no matter how salacious or sensational. Based in New York, they promoted themselves as “the source for daily Manhattan media news and gossip.”
Unafraid to offend, the site made waves in the media industry. They were the first to post the video of the late Rob Ford, the former mayor of Toronto smoking crack. Another story they did exposed the online black market Silk Road, which was later investigated by law enforcement and shut down. The site was often criticized by both journalists and the general public for posting stories many considered indecent. Jeffrey Toobin described Gawker in a 2016 article for the New Yorker by saying this,
“The tone of Gawker was more consistent than the subjects it covered; it was fearlessly and indiscriminately mocking, regardless of the status of its targets. As Denton told me, ‘There’s actually much less regard paid to mainstream ideas of decency when you’re addressing a large but focussed audience of the young and metropolitan, not particularly easily shocked.’ Gawker prospered in the atomized world of the modern media by identifying and servicing that ‘young and metropolitan’ niche.”
In short, receiving a tip about a Hulk Hogan sex tape and later posting it for the world to see was no unusual occurrence for Gawker. It was just another day at the office.
The court case lasted two weeks. In March 2016 the jury found Gawker Media liable on all charges and awarded Bollea $115 million in compensatory damages and $25 million in punitive damages. It was the largest payment for invasion of privacy ever against a major media company, and maybe the first ever to bankrupt one. After 14 years, one of the original online journalism upstarts was forced to close down.
In the very first scene of the documentary former Gawker editor A.J. Daulerio is shown explaining to the camera that there’s a hold on his personal bank account. For $230 million. His face is mix of absolute defeat and utter frustration. He is a man completely destroyed.
Just looking at both cases as they were presented in court, it’s understandable how Gawker lost. The problem is, it never should have been tried before a jury in the first place. It was a case not designed to bring Bollea closure, but rather to bring Gawker to its knees and vanquish the controversial media site publicly, and past the point of no return. Whether or not Gawker was protected under the first amendment in posting the explicit video, the fact remains that the trial itself was built so Gawker never even had a chance.
Denton sensed something off about the case immediately. Bollea, who was apparently having his own money troubles, had a full team of expensive legal experts working his case. They flew into St. Petersburg first class and stayed in expensive hotels. The case dragged on for a full two weeks, racking up legal fees for both parties with every hour spent in court. On top of that, the nearly $130 million demanded from Gawker by the court seemed especially steep. It was a death sentence.
Two months after the verdict, Forbes broke the news that confirmed Denton’s suspicions. The whole thing had been bankrolled by a man with absolutely no connection to Bollea, a Silicon Valley billionaire named Peter Thiel. A PayPal cofounder and one of Facebook’s initial investors, Thiel is now worth an estimated $2.7 billion. His feud with Gawker first began in 2007, when Gawker’s Silicon Valley tributary, Valleywag, publicly outed Thiel as gay. Both before and after that, Valleywag and Gawker continued to ridicule Thiel, his investment decisions, his ideas, and his friends. It was such stories that had led Thiel, in 2009, to label Valleywag “the Silicon Valley equivalent of Al Qaeda” and to liken its writers to terrorists.
It seems as if the Hulk Hogan case was an opportunity he’d been waiting years for. After the Forbes story was published Thiel confirmed to financing the case publicly. In a recent interview with The New York Times, Thiel says “Gawker has been a singularly terrible bully.”
Strangely enough, Theil and Gawker’s founder Nick Denton are more similar than it may seem. David Margolick named these similarities in an article for Vanity Fair,
“They are contemporaries: Denton turned 50 this past August, and Thiel 49 two months later. Both were born in Europe—Denton in England and Thiel in Germany. Both graduated from fancy universities—Denton from Oxford and Thiel from Stanford. Both made their fortunes in the digital world; in fact, it had brought them together in San Francisco a dozen or so years earlier. Both are gay, and both came out relatively late. Both are libertarians, and nonconformists, and visionaries, and science-fiction fans, and workaholics, and wonks. Both have resisted getting old, Denton by attitude, Thiel through human growth hormones. Both have a cultish kind of appeal.”
Denton still stands by the original article that outed Thiel. As a gay man himself, he saw it then and still sees it now and as an opportunity for representation, rather than mean-spirited clickbait. To him, it’s no different than writing about the sex lives of heterosexual couples. He only wishes Thiel could see it the same.
Instead, Thiel made it his personal mission to take Gawker down. He poured money into Bollea’s case. From the quick settlement with Bubba Clem that ended with him not be allowed to testify in court, to the large amount of money demanded from Gawker as penance, the case was built to take them down.
Peter Thiel is not against freedom of speech. He’s quick that make that clear. No, it’s a very personal hatred that drove him to take down Gawker. He even called it “one of my greater philanthropic things that I’ve done,” and says he’s spent roughly $10 million bankrolling lawsuits against Gawker.
Essentially it’s a story of a very rich man using his wealth to bankrupt a far less wealthy independent media company and all involved. It goes against the whole idea of freedom of speech. Who is Peter Thiel to decide that Gawker is or is not worthy of having a voice? Even if everyone collectively decides to dislike one particular media source, it should be allowed a voice, even if the response is derision and hatred.
The beauty of free speech is that everyone is allowed an opinion, if that opinion is offensive it is the right of the people to protest. Protecting free speech does not mean shielding bad or offensive speech from criticism. Free speech is allowing it to be said in the first place and then deal with and be responsible for whatever response it receives.
Gawker was no stranger to criticism or even lawsuits. Their critics were vocal and numerous, from Vice to the New York Times. However, if any journalist hoped for the downfall of Gawker, they weren’t hoping for this.
In an era where our highest government official has proclaimed the media “the enemy of the people” and even encouraged violence against them, protecting free speech becomes more important than ever. When one man decided to silence one media outlet, he set a precedent that powerful people can decide for the rest of us who does and does not deserve a voice.
Good journalism is not easy, and truly great journalism can be rare. It’s impossible to ever be completely unbiased, but that shouldn’t keep journalists from trying. It also shouldn’t keep the public from reading. The news and journalists are the only form of checks and balances that’s completely independent from the government. Allowing it to stay that way, allowing free speech to stay free, no matter the content, is crucial to the future of America, and the future of democracy as whole.
Nobody Speak: Trials of the Free Press is available to watch on Netflix now.