Wolff: Gawker should pay for free speech

Michael Wolff | USA TODAY

The free speech discussion is often one in which the highest principles are used to defend the lowest aims. No matter how meretricious, if the low is not protected, that could open the way to restricting the true and important. And, after all, sometimes the low actually becomes true and important.

This is a workable argument in part because most calumny, cruelty and vileness have traditionally had to overcome high hurdles before being published, with legal departments, distribution costs, and ritual and propriety in its way. In other words, the lowest of the low is not actually freely allowed.

Until, that is, the Internet, which is able to operate without responsibility or costs. Neither Google nor Facebook, regarded as more like telephone lines than publishers, are legally accountable for their invasions and defamations. And the cruelest and vilest words are usually uttered by people who don't have enough money to make it worth suing them.

But Gawker Media, with its flagship site Gawker, the news, gossip and bile blog, has made quite a success out of gratuitous and ad hominem attacks. And now it is in tenacious litigation with wrestler and reality TV personality Hulk Hogan for violating his privacy over a sex tape that Gawker edited and posted. While this suit is the kind that will likely be defeated on constitutional grounds, it is also true that you need to be richer than Gawker to adequately defend against a plaintiff like Hogan, who is righteous enough and stubborn enough not to settle.

In a sense, it is a perfect example of the checks and balances that, arguably, make free speech possible: If you have something to lose, the system encourages at least minimum levels of prudence. Gawker, on the other hand, keeping pace with the ever-greater scabrousness of the Internet, has established new levels of unrestrained and seemingly unsupervised calumny, cruelty and vileness.

Not surprisingly, faced with the Hogan suit, Gawker has now launched a public campaign to position itself as a defender of free speech: If it is silenced by the costs of litigation, free people everywhere will suffer.

That position has overshadowed a very reasonable contrary argument: absent the meaningful threat of litigation and oversight of vigilant legal departments, the Internet, with Gawker as a good example, has become the ultimate no-recourse medium for defamation, incitement, blackmail, criminal solicitation and threats — all forms of speech generally not protected by the First Amendment.

Jon Ronson's book, So You've Been Publicly Shamed, which includes a particularly vivid example of Gawker virulence, is quite a definitive study in the brutishness and mob incitements of Internet speech.

Gawker is arguably the richest and most established company in this new genre of casual defamation and hate speech (and, arguably, blackmail and threat — if you cross them they'll vilify you), and, so, a logical target to sue.

Free speech and an onerous burden on proving libel exist, in one sense, because most people can't imagine the circumstance in which they would be notable enough to be libeled and attacked by the press. But that is surely less true now. A new, broader sympathy for media victims, combined with distaste for the media, is one more reason why Gawker might lose in a jury trial. Gawker pursues almost anyone, famous or not, who it conceives to be its political, moral, temperamental, philosophic, generational or stylistic enemy. (I, like many others with a frequent byline, have not been spared — and anticipate great and bilious wrath for this article.) Its vileness and calumnies, I am sure it would say, are democratic — everybody's a fair target.

But while its cruelties might be broadly spread, they can also be understood as bigotry directed at anybody who Gawker writers believe is insufficiently like them.

It's possible to defend this as a cogent world view: Gawker writers see society as full of self-satisfied phonies deserving of injurious abuse. That would hardly be unique. What is unique, arguably, is a publishing organization this successful that is yet so incautious and flamboyant in its attacks. Gawker, as a product of new technology, finds itself with almost no restraints and its targets find themselves with almost no protections and recourse. (And any effort at recourse, is met by further punishments.)

Curiously, such unrestrained and abusive speech means that Gawker writers establish a record for themselves that might well make them unhireable in the larger world (or only hireable by other menacing outlets). They are trapped in a cycle of abuse. Several weeks ago, the Gawker staff elected to start a union in order to protect their jobs and their editorial freedom (including the freedom to abuse). Gawker's founder and owner, Nick Denton, professes to be proud of his staff and sanguine about its union. At the same time, he has said he's assumed a less active management role in the company, perhaps in acknowledgement that the monster he's created has gotten beyond his control.

In the past, it has not been that difficult to make a distinction between free speech, which, however immoderate, needs to be tolerated and protected, and feral speech, the wild, subverbal, bonkers-tilting stuff. The publishing marketplace has modestly encouraged the former, and rather sternly limited and marginalized the latter (with always a struggle in the middle). Now, the latter has grown in ways that would once hardly have been imaginable.

But yes, if you do not protect the worst, you threaten the best.

Still, if Hulk Hogan were to win his suit before the Florida jury, demonstrating the financial risks of indiscriminate speech, and that decision is eventually reversed by a higher court, reaffirming the ultimate principle of free expression, that might offer a sort of balance, albeit sacrificing Gawker, but to the regret of few.