Tag Archives: Gawker

Gawker, the Freedom of Expression, and the Power of Consequences

Is Gawker violating its writers’ rights if its chief executive editor de-publishes a controversial post?

What about if a company’s CEO is forced to step down in the face of a threatened boycott over the CEO’s political positions? Is an artist being “censored” if a comic book publisher cancels his covers and suspends him? Is it an unconstitutional “ban” on speech if Amazon and Walmart remove Confederate flag memorabilia from their offerings?

Across the web confusion abounds about what freedom of expression really means.

Most recently, in the messy wake of its sex-shaming post about a private citizen’s violation of Gawker’s neo-Victorian strictures on monogamy, founder and CEO Nick Denton (who pulled the post) had this to say to his editors:

What I can’t accept is an unlimited and subjective version of editorial freedom. It is not whatever an editor thinks it is; it is not a license to write anything; it is a privilege, protected by the constitution, and carrying with it responsibilities.

Literally, every part of that last bit is wrong.

The editorial autonomy of Gawker writers is not constitutional in nature. It is a license granted by their employer—i.e. Denton. Absent a binding contract, it can be revoked at any time without running afoul of anyone’s rights, and certainly not running afoul of anyone’s constitutional rights.

The constitutionally protected freedom that Gawker writers do have (as do we all) is not to publish at Gawker. The Constitution restricts the power of Congress, not the discretion of Nick Denton.

Nor is that constitutionally protected freedom a “privilege.” It is a right.

And it does not have to be exercised responsibly.

It vexes me when people who should know better get sloppy in their framing. Messy language leads to messy thinking and, in the process, dilutes effective defense of this crucial freedom.

Perhaps a libertarian(ish) review is in order.

“FREE SPEECH” V. FREEDOM OF SPEECH

Although routinely used in Supreme Court decisions, the words “free speech” do not appear in the Constitution. In my opinion, overuse of this terminology induces people to mistakenly believe their speech should always be costless and consequence-free.

That is not how it works.

Speech requires a forum, which must be paid for by someone.

In public forums paid for by taxpayers, “time, place and manner” restrictions may be imposed to keep things orderly. But content-based discrimination is not permitted. Even the Nazis get to express themselves.

In private forums, on the other hand, the property owner gets to decide what speech he is willing to host.

There is no “free speech” right to interrupt a Muslim prayer service at the National Cathedral. The Cathedral’s owner, which is the Episcopal Church, gets to decide what sort of speech occurs there. It doesn’t have to (but may if it wants) host Muslim-haters, atheists, rude people, or morons.

Similarly, bookstores are not required to carry every book printed just because the author claims a “free speech” right. The corner market does not have to sell every conceivable magazine. Art galleries do not have to make room for every painting. Radio stations do not have to play every song.

And Gawker does not have to publish every post. (I would totally make it publish this one.)

If a speaker wants his speech to be “free” in the sense of not having to pay for the forum, he must either utilize a public forum or find a private owner willing to host the content gratis. Luckily, in this day and age, there are lots of options for that.

Gawker is not one of them.

Like other private publishers and forum owners, it exercises its right to decline hosting or publishing content it dislikes. There’s a term for that right.

…Oh yeah. Freedom of speech.

FORCE VERSUS CONSEQUENCE

It is tempting to say that Brendan Eich was “forced” to resign from Mozilla over his position on same-sex marriage. That Richard Albuquerque was “forced” to pull his Batgirl cover variant. That TLC was “forced” to cancel the Duggars.

That Nick Denton was “forced” to pull the now infamous Gawker post.

It sounds more melodramatic and provocative to phrase it that way. But to the extent it’s semantically correct, this is not the kind of “force” that runs afoul of the freedom of expression.

Wrongful force is actual physical force used to prevent or punish speech or other forms of expression.

This includes all governmental interference, because government action by definition involves force. Even civil regulations (like fines) eventually end with puppy-killing SWAT teams. Of course force exercised by private actors, in the form of violent reprisals, also suppresses freedom and therefore should be resisted with the same passion.

Preventing forceful suppression of expression is a higher order principle. When triggered, that principle transcends issues about the content of the speech being defended.

Why?

Because speech is the most powerful weapon that ever has or ever will exist.

It has the power to topple kings, eviscerate falsehoods, destroy paradigms, provoke thought, change minds and hearts, alter the course of history, and transform the world.

And it can do all that without shedding a drop of blood.

A weapon like that cannot be entrusted to the exclusive control of the few. Enlightened rulers using force to curtail speech have too often gotten it wrong. Power once ceded can rarely be retrieved, and battles not fought with words and ideas will be fought instead with violence and bloodshed.

We cannot retain the best of speech without protecting its worst. We cannot extract its power to do harm without diluting its power to do good.

EVERYTHING BUT FORCE IS FAIR GAME

That being said, everything short of physical force is fair game.

A Congressional communications director can be pressured into resigning (or fired) for making snarky comments about the President’s daughters. TLC and A&E can cancel their reality television lineup for any reason consistent with the contracts negotiated. Customers can boycott wedding photographers or bakers in retaliation for expression of disfavored opinions. Landlords can refuse to rent to people with Confederate flags in their rear windows. Employers can bypass applicants over their social media postings.

Firing. Boycotting. Refusing to hire. Pulling advertising. Cancelling subscriptions. Social media flame wars. De-publishing. Disassociating. Shaming.

All of these are fair game. All of these are themselves protected acts of expression.

They may make life unpleasant for the target. They may feel coercive or even deeply wounding.

They’re supposed to.

If speech didn’t have that power, we wouldn’t bother protecting it.

Deciding to refrain from speaking because such consequences are too unpleasant is not a response to force. It is a response to speech.

GAWKER IS GETTING SPOKEN TO, NOT SUPPRESSED

If Gawker were being threatened with forceful suppression of its speech, defending against that violation would be a higher order principle that transcended all others. Personal feelings about the content of the speech would be secondary.

But where no force is imposed or threatened, those secondary principles are the only ones at play. The whole point of the higher principle is to create a circle of freedom in which ideas, without limitation, can be explored and judged on the merits. If we never got around to the judging part, we would destroy the very reason for preserving the freedom.

Nothing happening at or to Gawker (in this specific case) poses any threat to anyone’s fundamental right to free expression. The writers are free to write. The owners of Gawker are free to choose what to publish. The editors are free to “fall on their poisoned pens” in protest. Advertisers are free to abstain. Readers are free to boycott.

None of this constitutes a violation of anyone’s freedom. It’s what freedom looks like.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

Gawker Fingers a Democrat as Lena Dunham’s Alleged Rapist

Gawker reporter J.K. Trotter has revealed the real name of a real human being who Trotter hypothesizes might really have raped Lena Dunham, as she described in Not That Kind of Girl. I think he was wrong to do so and will not repeat it here, or link to the article.

Suffice to say that Gawker previously obtained a copy of the book proposal Dunham submitted to her publisher. The identifying details set forth in the proposal were different than the details included in the published book. Using a combination of both, Trotter was able to identify a former Oberlin student who could be the person described.

That person, however, is not a Republican or a conservative, but a registered Democrat. I confess to finding this discrepancy interesting. Dunham called her alleged rapist “a mustachioed campus Republican” and “the campus’s resident conservative.” I interpreted her repetition of that detail, as it was reported in the media, as intending her audience to make some connection between the young man’s party affiliation and his alleged conduct—and to generalize that conduct toward others who share the affiliation.

Perhaps I was mistaken to assume that Dunham or her supporters harbored such an intent. Perhaps changing this detail might simply have been an effective and innocuous way to obscure the man’s identity. I cannot know. Regardless, of whatever interest it may be, it does not justify naming an actual person who may be guilty of nothing more than serving as source material for a composite character.

Have we learned nothing from the UVA rape story?

Dunham and her publisher have already had to apologize—weeks after he had been identified—to an identifiable campus conservative named Barry (the name Dunham used in her book). Why drag yet another person, presumed innocent in the absence of a conviction, into this?

By Trotter’s own admission, the motivation is to push back against “right-wing” questions about Dunham’s story:

Following the clues in the published text, Dunham’s antagonists have declared that the rape story is a hoax, one that falsely implicates a fellow student. The investigation has led Dunham’s publisher to announce a revision to future editions of the book—confirmation, to her foes, that she is lying, and that her alleged rapist doesn’t exist.

Most mainstream outlets have covered the details of the case with trepidation, if they cover them at all, allowing the central claims of the right-wing account to stand unchallenged. But the investigators aren’t just distasteful. They’re wrong.

In other words, Trotter has an agenda. He wants to exonerate Dunham from suggestions that she fabricated her story, even if that means convicting someone else of rape.

What qualifies Trotter to make this determination? Is he a judge? A lawyer? A sworn juror, having viewed the credibility of the witnesses on the stand and been instructed with the governing law? Was the accused given a defense, an opportunity to cross-examine the witnesses against him, and access to exculpatory evidence?

If Rolling Stone’s infamous UVA rape story has taught us anything, it is that people sometimes lie. They lie about unpredictable things and for unpredictable reasons. Their reasons for doing so are as many and myriad as they are. To insist that women never lie about rape—or at least not often enough to matter—is to reject the range and variability of the experience of being female.

This is not to say that Lena Dunham is lying.

Unlike the person named in Trotter’s article, she laid her story out for public scrutiny and made a lot of money in the process. She injected politics into it—wittingly or not—by focusing attention on the man’s party affiliation. She took her time clearing the name of the identifiable campus conservative whose name matched the one used in her book.

Nevertheless, she deserves the same presumption of innocence as the person named in Trotter’s article. Dunham made a clear effort—based on Trotter’s own reporting—to protect the identity of the person she alleges raped her. She made an unequivocal (albeit slow coming) statement clearing the name of the man others had previously identified. She is entitled to write a memoir that is based on true events or that uses composite characters.

I am in no more position to judge her false than Trotter is in position to name someone a rapist as part of a quest to exonerate Dunham against “right-wing” challenges. His doing so, for that stated reason, is not journalism. It is trauma advocacy and cultural arbitration, at the price of a fellow human being.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

Ban private schools? Only if you hate our kids.

No, I don’t go to Gawker for insightful, intelligent analysis of American politics. However, from time to time, so much stupid shows up into my timeline on Facebook that just has to be address. This particularly instances was written by Gawker’s John Cook, where he proposed that the secret to reforming our public schools is to ban the private ones. (Yes, it’s a couple of years old, but some things just should be smacked down whenever you get the chance).

Like I said. So. Much. Stupid.

Let’s start with taking a look at what Cook said.

The ongoing (but maybe soon to end?) teachers’ strike in Chicago is being viewed by many as an early skirmish in a coming war over the crisis in public education—stagnant or declining graduation rates, substandard educations, dilapidated schools, angry teachers, underserved students. There is one simple step that would go a long way toward resolving many of those issues: Make all schools public schools.

It’s an oft-noted irony of the confrontation in Chicago that Mayor Rahm Emanuel sends his children to the private, $20,000-a-year University of Chicago Lab School, which means his family doesn’t really have much of a personal stake in what happens to the school system he is trying to reform. This is pretty routine behavior for rich people in Chicago, and there’s a pretty good reason for it: Chicago’s public schools are terrible. If you care about your children’s education, and can afford to buy your way out of public schools, as Emanuel can, it’s perfectly reasonable to do so. Barack and Michelle Obama made a similar decision, opting to purchase a quality education for their daughters at Sidwell Friends rather than send them to one of Washington, D.C.’s, deeply troubled public schools.

Cook starts off with so much potential. He correctly points out that public school advocates like Rahm Emanuel and Barack Obama, instead of sending their kids to public schools they claim they support, ship their offspring to expensive private schools where their kids can get top flight educations. It’s like watching a baby deer taking his first steps… » Read more

First, I’d like to take a moment to mention how great it is to be posting something to The Liberty Papers. In 2009, I joined with a friend in a project he had started where we blogged about area politics. I’d blogged a little bit here and there before about whatever random things, but my libertarian streak had never really gotten a chance to fly.

Suddenly, I had a platform. To say it changed my life was…well, a significant understatement. It lead to me getting to know some pretty cool people, many of whom are here at The Liberty Papers. It gave me the opportunity to first write for a local newspaper, and then eventually buy it. While that didn’t necessarily work out, it was yet another example of me being able to write a lot of words in a fairly short amount of time. So, I did like a lot of people and decided to write a book. Bloody Eden came out in August and is available at Amazon (or your favorite book website for that matter).

Now that we’ve gotten the history out of the way, a bit about the politics. First, I’m probably best described as a classical liberal. At least, that’s what every “What kind of libertarian are you?” quiz has told me, and they’re probably right. I’m a constitutional libertarian, for the most part. If the Constitution says they can do it, it doesn’t mean they should, but if the Constitution says they can’t, then they can’t. It just doesn’t get any simpler than that.

I look forward to contributing here at The Liberty Papers.