Peter Thiel’s Free-Floating Right to Privacy Is Inconsistent With Freedom of Speech

Paypal billionaire Peter Thiel, who helped finance the Hulk Hogan sex-tape lawsuit that drove Gawker into bankruptcy, defends that decision in a New York Times op-ed piece, arguing that the threat of ruinous litigation is necessary to protect privacy from media outlets that thrive by violating it. Thiel says he decided to help Terry Bollea, who plays Hulk Hogan, with the lawsuit largely because of his own bitter experience with Gawker, which gratuitously outed him in 2007, when he “had begun coming out to people I knew” but had not publicly acknowledged his sexual orientation. “Gawker violated my privacy and cashed in on it,” he says. But Thiel, a self-described libertarian who is nevertheless supporting Donald Trump this year, wants us to know he was defending a principle, and not simply pursuing revenge, when he helped Bollea obtain a $140 million judgment against Gawker. If so, that principle is decidedly dangerous to freedom of speech.

“A story that violates privacy and serves no public interest should never be published,” Thiel writes. “It is ridiculous to claim that journalism requires indiscriminate access to private people’s sex lives….It is wrong to expose people’s most intimate moments for no good reason.”

One can agree with all of these propositions without agreeing that they should be legally enforceable. Giving juries the power to determine what counts as a “public interest” or a “good reason,” not to mention whether a story advances it, poses a threat even to journalism that Peter Thiel would recognize as legitimate, because people commonly disagree about such matters. Even when a news outlet crosses the line of decency by publishing true but sensitive information that causes an innocent person anguish without any benefit aside from entertainment or titillation (as Gawker arguably did in Thiel’s case), it does not follow that anyone’s rights were violated, which should be a prerequisite for legal action.

When Gawker accurately reported that Thiel is gay, he seems to believe, Gawker violated his right to privacy, which includes the right to prevent publication of legally discovered but inconvenient facts unless there is a “good reason” to publish them. That right is quite different from, say, a movie star’s right to prevent a paparazzo from trespassing on her property, a businessman’s right to prevent a former employee from divulging information covered by a nondisclosure agreement, or a citizen’s right to be secure against unreasonable searches and seizures. Thiel’s free-floating right to privacy is completely unmoored from property rights, contract rights, or constitutional law. It can be invoked whenever someone objects to a story that reflects negatively on him or complicates his personal life, even when the story is completely accurate, provided that person has the resources to pay for a lawsuit. And as with defamation suits, he need not win to punish his adversary.

Thiel glides over these problems by suggesting that the prospect of financial ruin based on amorphous tort claims can only improve the quality of journalism:

A free press is vital for public debate. Since sensitive information can sometimes be publicly relevant, exercising judgment is always part of the journalist’s profession. It’s not for me to draw the line, but journalists should condemn those who willfully cross it. The press is too important to let its role be undermined by those who would search for clicks at the cost of the profession’s reputation.

Nothwithstanding his protestations, Thiel certainly is trying to draw a line by supporting Bollea’s lawsuit and offering to help other litigants who believe their privacy has been violated by the press. “I will support him until his final victory,” Thiel writes, noting that Gawker plans to appeal the verdict against it, “and I would gladly support someone else in the same position.” Thiel’s choice of cases will tell journalists where he thinks the line should be, and this is no mere suggestion. Although he tries to blur the distinction between criticizing someone and taking him to court, only one involves the use of force and the threat of bankruptcy.