After Harvey Weinstein, Journalism’s Fight Against Chilling Effects of Gawker Lawsuit Continues

Weinstein’s threat to sue the NY Times proved hollow, while other outlets fight back against attempts to bury them in legal fees for their reporting

Last Updated: October 20, 2017 @ 3:36 PM

Is there a silver lining to the criticism facing news organizations since the Harvey Weinstein scandal erupted?

Some experts say the new public scrutiny placed on news organizations could encourage them to stand by their reporters.

“I hope the message taken from the past few weeks is that standing up to threats is what news organizations have to do,” said Jane Kirtley, media law professor at the University of Minnesota. “Check your sources and facts and make sure it’s as bulletproof as possible, but then you have to publish and know that constitutional protections will be there for you.”

Media organizations have been on the defensive since the Hulk Hogan case put Gawker out of business, funded by billionaire Peter Thiel. And the lawyer in that case, Charles Harder, was initially on Weinstein’s legal team as The New York Times published its expose on his decades of sexual coercion.

The issue has gotten even more attention with TheWrap editor Sharon Waxman calling out The New York Times for “gutting” a story she wrote about Weinstein in 2004, as well as Kim Masters writing in Columbia Journalism Review how her own outlet, The Hollywood Reporter, and many others would not publish her report on the sexual misconduct of Amazon Studios head Roy Price. (The Information ultimately printed it.) Ronan Farrow struggled to get his New Yorker story on Weinstein published by NBC.

Since the Times’ Weinstein story, there’s been good news for reporters on different fronts. Harder’s threat against the Times was quietly dropped as reports surfaced this past weekend that he had left Weinstein’s legal team. Isa Hackett, one of Price’s accusers, went on the record with Masters, which led to Price’s resignation from Amazon on Tuesday.

Meanwhile, another lawsuit filed by Harder against a media outlet is taking an intriguing turn. In January, California-based tech blog TechDirt was sued by Shiva Ayyudurai over articles disproving his claim that he invented email. Harder is appealing the lawsuit’s dismissal, but TechDirt is filing a cross-appeal, arguing that since the site is based in California, it is protected by the state’s Anti-SLAPP laws.

“Originally, Anti-SLAPP laws were intended for private citizens and activist groups, but 20 years ago the courts decided news groups could use them, too, and this is a big help,” Kirtley told TheWrap. Anti-SLAPP laws are designed to protect defendants from frivolous lawsuits that can bring costly legal fees if it can be proved that the plaintiff has no plausible legal argument. If that happens, the plaintiff has to pay for the defendant’s expenses.

Kirtley says that if TechDirt can prove that the Anti-SLAPP laws apply to this case even though Ayyadurai’s lawsuit was filed outside of California, it could encourage other outlets in states with similar laws to make the same argument if a powerful person they write about unfavorably tries to financially cripple them with a lawsuit that doesn’t hold up.

In other words, it could reverse the chilling effect that Gawker’s downfall has placed on the media and potentially discourage deep-pocketed people from going after reporters.

But Kirtley warns that Anti-SLAPP laws vary from state to state and aren’t set in stone. In 2015, Washington’s Anti-SLAPP statute was struck down by the State Supreme Court, while Nevada’s version of the law survived a constitutional challenge earlier this year.

“What we really need is a federal Anti-SLAPP law, and that’s going to take a lot of work to get through Congress,” Kirtley said.

Nick Denton, Gawker’s founder, thinks it’s about time that the media stand up not just to threats from lawyers, but to the powerful people they represent. In emails exchanged with TheWrap, Denton said that media outlets too often only expose sexual abusers in society’s elite when they’ve fallen out of power, and that Gawker’s willingness to play loose with the rules of journalism allowed them to get ahead of the curve on major scandals against Weinstein, Roger Ailes and Bill O’Reilly.

As for Harder, Denton thinks that editors should not fear him, referencing a tweet from BuzzFeed reporter Matthew Zeitlin admonishing those who describe Harder “like a Batman villain.”

“Charles Harder is dangerous to media companies to the extent that he has a deep-pocketed backer like Peter Thiel behind him,” said Denton.

Jon Levine contributed to this report.