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Is Freedom of Expression in Danger in Trump Era? First Amendment Experts Weigh In (Video)

TheWrap’s panel discussion followed a screening of the Netflix documentary, ”Nobody Speak: Trials of a Free Press“

The grey area between privacy and First Amendment rights were central to TheWrap’s panel discussion in Los Angeles Thursday night, “The First Amendment In the Age of Trump” — and in the current climate there were plenty of issues to debate.

Brian Knappenberger, director of the documentary “Nobody Speak: Trials of a Free Press,” said that Silicon Valley billionaire Peter Thiel’s secret involvement in the Hulk Hogan/Gawker trial threatened the First Amendment rights of the free press. But the irony is that the First Amendment in part protects Thiel’s secrecy.

Or consider how universities have been locked in debate over whether figures like Ann Coulter or Milo Yiannopoulos have the right to speak on college campuses. The First Amendment protects their right to speak, but it also protects those fighting back against that speech. Are students exercising their rights or are they suppressing debate?

Then there’s the case of writing on the internet. Fake news, false memes and outright hate speech can easily proliferate online, all under anonymity. Their words have proven dangerous and made people mistrust the media, yet the First Amendment protects their anonymity.

The talk followed a screening of Knappenberger’s Netflix documentary “Nobody Speak: Trials of the Free Press.” It charts how Gawker’s decision to publish Hulk Hogan’s sex tape led to a trial that has potentially opened the flood gates for billionaires to make news outlets they don’t like disappear.

“I’m bothered by the secrecy of what happened here. As I understand it, what Peter Thiel did here used to be illegal,” Knappenberger said during the panel discussion. “There’s this notion that this can be done in secret, that a thumb can be placed on this conversation in a way that is invisible to the participants involved, invisible to the public and invisible to the jury as well. That is troubling to me.”

But Ricardo Cestero, a partner at the law firm Greenberg Glusker, argues that the secrecy of Thiel’s actions is part of what the First Amendment protects.

“Peter Thiel had a First Amendment right to do whatever lawfully he was allowed to do in order to shut down a publication that in his First Amendment belief wasn’t worthy of continuing to exist,” Cestero said. “It’s a jury verdict that balanced the privacy of a celebrity against the publication’s First Amendment right to do what it did. Peter Thiel’s involvement is part of what the First Amendment allows.”

Cestero argues that the real issue is a flaw in our legal system rather than a failure to recognize the First Amendment. Wealthy individuals who don’t like what they read or see in the media can file an arguably frivolous lawsuit, and there’s no way for media companies to combat it.

“Our legal system has gotten to the point where it is cost prohibitive for anything other than companies that are fully insured or the extraordinarily wealthy people or corporations to really litigate meaningful cases like this one,” Cestero said. “We as a society should look at ways to solve that problem.”

Lanny J. Davis, a former lawyer for the Clinton White House during the Monica Lewinsky scandal and the co-founder and partner of Davis Goldberg & Galper, reiterated how the Hulk Hogan/Gawker case mainly concerned the balance between privacy rights and First Amendment rights. He said that when we argue about First Amendment rights disappearing, we shouldn’t lose sight of the fact that Terry Bollea, i.e. Hogan’s real name, was entitled to privacy as also protected by the Constitution.

“There’s a grey area where First Amendment and privacy rights overlap, and people who are progressive need to have a balance in looking at both sides,” Davis said.

Davis went on to say that these rights extended to Thiel’s own privacy, but he’s ultimately in favor of transparency in litigation. “The First Amendment allows anybody to be outed and the person outed to be offended. The principle of the First Amendment is that shouldn’t be subject to any penalty. But what’s offensive and what’s constitutional are different,” he added.

David Greene, Civil Liberties Director at the Electronic Frontier Foundation, said that there’s still an issue with billionaires like Thiel putting their thumbs on the scale. Greene said the verdict in the Gawker case was disproportionate to anything he’s seen in a privacy case like this.

“What you get when you have someone funding it is you have this concern that you’ll soon get this disproportion,” Greene said. “And our system isn’t well equipped to handle that disproportion. The system that we rely on breaks just a little bit when you have this type of involvement in the cases.”

So is the First Amendment under attack more now than when Trump took office? Greene said there may not be a legal solution to the president attacking the media, but we still need to fight back against that language.

“The concern I have in the rhetoric I hear now is it’s engendering distrust in these institutions that are so vital,” Greene said. “There are media institutions I like and those I dislike, but I want them all to survive, because that’s the way the system works. The more people reporting the better.”

Davis said all presidents have been irritated by the media. But Donald Trump is different.

“The difference is Donald Trump demonizes people and creates dangerous, violent tendencies in certain extreme minded, and I think fascist-oriented people,” he said. “We have to try and avoid attacking motives and demonizing people we disagree with. We lose the heartland of this country when we do that as opposed to civil disagreement, and keeping with our criticism of the media, which is sometimes deserved, is that we don’t personalize our differences. We don’t demonize our opposition. That’s what President Trump does, and that’s what makes him dangerous.”

Check out the whole video from Thursday’s panel discussion above, “Nobody Speak” is available on Netflix now.