Hulk Hogan's case against Gawker has caused quite a bit of consternation.1 The concerns seem to cover a few major topics: forum shopping2, the media being chilled from conducting their normal business, the size of the award, the immense costs of defending a lawsuit, the danger of having rich third parties fund lawsuits.
In case you haven't heard of the case, it is fairly simple. Hulk Hogan was filmed having sex without his knowledge. Gawker media published the video in full on the internet. Hogan sued Gawker for various privacy torts. He won a gigantic verdict against them. After the verdict, Billionaire Thiel was revealed as having helped Hogan fund the lawsuit. Thiel had a grudge against Gawker for outing him as gay.
My initial response as a lawyer was: nothing about this seems particularly surprising. Forum shopping is standard for class actions and privacy torts, companies are always complaining about how lawsuits chill their ability to act the way they want to (attend any meeting with doctors and mention malpractice suits), windfall awards are scary for everyone, everyone talks about how expensive lawsuits are to defend, and having rich third parties fund lawsuits is nothing new (I'm sure you've all heard of the ACLU, the Sierra Club, and the NRA).
All of these problems are brought up repeatedly in tort reform discussions so I couldn't understand what was so special about this case. After reading quite a few articles on the case (some of them almost apocalyptic in tone) I realized that there was some truth in their complaints, and I had just been convinced by tort reform arguments that most of those problems were unadressable. However, many of these arguments were being advocated by people and institutions which had previously not been very receptive to tort reform arguments, so maybe it was time to revist them.
- Forum shopping. This actually wasn't a problem in this case, but it is indeed a big problem. The problem is that most states have very long-arm statutes which allow those in the stream of commerce to be sued almost anywhere. Those statutes were a progressive reform in response to the fact that far flung corporations could do harm in a venue without ever being present in that venue. This caused people who were harmed to have to sue them in the forum where the corporations were incorporated, which could be a huge pain to someone on the other coast. The modern view is that you should be suable where you are, or where you caused the harm. That seems like a sensible rule to me. It causes problems with media cases because the harm is everywhere they broadcast, and with class actions because it allows the plaintiffs' lawyers to choose essentially anywhere.
- Chilling. We want to chill bad behavior like publishing secret sex tapes and pollution. So that isn't what people mean by a chilling effect. What they mean is that we don't want to limit legitimate behavior that comes close to things that can be sued over. This case isn't a good case for that worry, because Gawker's actions are among the type of thing we clearly don't want to allow. (This point has been well covered in the feminist analysis of revenge releases of private nude pics, or in peeping tom crimes). The complaint among media corporations seems to be that they don't want to have to have their legal department go over every release. That is true, but I'm unsympathetic in this case, because it is exactly the type of thing that is clearly out of bounds and that therefore you shouldn't even need legal review for.
- Giant windfall awards can seem scary. But they aren't just scary for media companies, they are scary for everyone. The obvious solution would be some sort of cap on non-economic damages. That generally hasn't been considered a good solution for reasons that I have never fully grasped. It may have to do with incentives for lawyers to take expensive to litigate cases with medium level direct damages.
- Lawsuits are expensive to defend for everyone. I have no idea how to deal with that well. Loser pays partially fixes the problem in other countries, though it stacks the deck in favor of large corporations in all but the clearest of cases unless poor people can get financial backing from someone else in the fairly good but not slam dunk cases.
- Rich third parties funding legitimate cases. These seems like the least problematic of the things mentioned. Rich third parties funding illegitimate cases is a different issue, but non pertinent to the Gawker case. Third party funding is a huge part of how all sorts of big cases get dealt with. If you don't allow it, you get rid of almost all of what we normally think of as public interest law. Disclosure seems the key to keeping it from corrupting the system. There don't seem to be disclosure requirements and I'm not at all sure why. Unless there is some sort of good argument against disclosure that I haven't heard of, I'd be all for it.