One day after the Silicon Valley billionaire Peter Thiel revealed his clandestine legal attack on Gawker Media to the New York Times, Gawker reporter Ashley Feinberg published a lengthy investigation that sought to solve the enduring mystery of Donald Trump’s infamous mane, which she described as a “cotton candy hairspray labyrinth.”
Thiel has portrayed Gawker as a force for evil, but Feinberg’s article—which drew potential connections between Trump and the work of a $60,000-a-pop hair-extension company called Ivari International—still went over rather well, drawing praise from staffers at the Times, the Wall Street Journal, and The Atlantic; and at least three winners of the Pulitzer Prize.
Even David Simon, the award-winning reporter-turned-screenwriter and frequent critic of Gawker, offered his accolades, arguing that if the U.S. press had investigated the Bush Administration’s claims about Saddam Hussein’s weapons of mass destruction with the same energy, the Iraq War might have been avoided.
But if you were under the impression that praise-worthy journalism is somehow inoculated against campaigns like Thiel’s, you’d be mistaken. Last week, Thiel’s lawyer-for-hire, Charles J. Harder, sent Gawker a letter on behalf of Ivari International’s owner and namesake, Edward Ivari, in which Harder claims that Feinberg’s story was “false and defamatory,” invaded Ivari’s privacy, intentionally inflicted emotional distress, and committed “tortious interference” with Ivari’s business relations. Harder enumerates 19 different purportedly defamatory statements—almost all of which were drawn from several publicly available lawsuits filed against Ivari.
Harder’s demands included the immediate removal of the story from Gawker, a public apology, the preservation of “all physical and electronic documents, materials and data in your possession” related to the story, and, notably, that we reveal our sources.
[We specifically demand that Gawker Media and its employees] immediately provide us with the name and all contact information for the unnamed “tipster” of the Story, so that we can serve that person with an immediate cease and desist letter to stop the spread of the false Story.
Harder goes on to threaten legal action over the story: “Your actions expose you to substantial monetary damages and punitive damages.”
These claims are, on their face, ridiculous. For instance, one of the “defamatory” statements Gawker published, according to Harder, is this: “What’s more, Ivari’s New York location is inside Trump Tower—on the private floor reserved for Donald Trump’s own office.” Harder omits, of course, the sources on which this assertion was based: Ivari’s own brochure, an archived version of his web site, and multiple advertisements Ivari placed in New York Magazine, all of which specified his New York address as being on the 25th floor of the Trump Tower in Manhattan. Furthermore, he didn’t even quote the article correctly. Here’s what Feinberg actually wrote (emphasis mine): “What’s more, Ivari’s New York location was inside Trump Tower—on the private floor reserved for Donald Trump’s own office.”
The second set of “defamatory” statements, Harder claims, were “taken from a lawsuit filed against Mr. Ivari by Alicia Roach”—that is, an official judicial proceeding, the publication of which is protected by New York State’s fair report privilege:
The following false statements taken from a lawsuit filed against Mr. Ivari by Alicia Roach in 2001—a case won by Ivari—presented to be a true “breakdown of what amicrocylinder treatment actually entails”:
a. “The intervention involves the use of skeins of natural donor hair. Each skein consists of a line of hairs attached to a thread about one inch in length. The threads are then attached end-to-end in concentric circles over the client’s head. The circles of thread are then anchored to each other by separate threads, which radiate from the center so that the underside of the resulting hairpiece resembles a spider’s web. The client’s natural hair is attached to the hairpiece by forty to sixty separate threads. Each of those threads is attached at one end to the web and at the other end to a tiny metal clamp around a few strands of natural hair at the scalp. Every few weeks, as the natural hair grows out from the scalp, the hairpiece loosens on the head. This places increased tension on the natural hair to which the microcylinders are attached and can cause hair breakage. A maintenance procedure (maintenance) is necessary wherein the clamps must be removed and replaced closer to the scalp. A maintenance tightens the hairpiece on the client’s head.”
b. The following statement taken out of context from the same lawsuit: “The judge’s decision states, ‘Ivari, Inc. is in the business of installing exorbitantly- priced hairpieces on the heads of people with thinning hair. These hairpieces are the functional equivalent of wigs and might be expected to look and feel like wigs after attachment.’”
It’s not clear what Harder means by “taken out of context from the same lawsuit,” since the context in which the statement appeared was a Connecticut state judge’s written description of Ivari’s hair-restoration practice.
It goes on for six pages. Ordinarily, we would publish the entirety of Harder’s letter, so readers can judge its merits themselves. (Gawker Media’s response can be read here.) But Harder claims, on the fifth page, that the document is “protected by applicable Copyright law and therefore may not be copied, published, disseminated or used by any person or for any purpose, other than internally at your company and its outside legal representatives.” Given Harder’s propensity to launch groundless lawsuits against us, we have decided not to invite distracting litigation over whether such publication is covered by the Fair Use doctrine, even though it plainly is. But the absurdity of Harder’s threats should not distract from the underlying mission of the man who pays him: To intimidate Gawker and its reporters from publishing true things about public figures.
(One question about Harder’s legal strategy: He has won a $140 million judgment against Gawker Media in Hogan, and is pursuing a $10 million case against us on behalf of a reporter named Ashley Terrill and a $35 million case against us on behalf of a man, Shiva Ayyadurai, who claims to have created email. Gawker Media is currently valued, in bankruptcy, at between $90 million and $100 million, according to reporting on a bid to purchase the company by Ziff Davis. Where do Harder’s clients think their winnings will come from?)
With the exception of Hulk Hogan, Peter Thiel has refused to identify which other cases against Gawker he has funded with his own money. According to Forbes, however, it’s not clear how much control he has over individual lawsuits:
According to multiple sources familiar with Harder’s arrangement, he never had any direct contact with Thiel. And, these sources claim, Harder didn’t even know who was funding the litigation until FORBES broke the news in May. What he surely did know: The checks cleared. And there was presumably more where that came from, if he could find more cases.
This is a savvy strategy for a publicity-averse billionaire. By refusing to disclose which other lawsuits his money has touched, Thiel is able to publicly embrace P.R. victories (such as the Hogan case ) while distancing himself from litigation that would expose him to criticism. At the same time, Harder has pursued litigation against Gawker that is completely unrelated to its journalistic output. Forbes highlighted Harder’s involvement in a class action lawsuit brought against Gawker three years ago by several former interns who argued that they should have been paid. After enlisting a former journalist to contact former Gawker interns under the guise of “academic research,” Forbes reported, Harder assembled the most willing plaintiffs before his firm “passed them off” to a New York labor firm, which filed the suit in June 2013.
Whatever the merits of the interns’ claims, it’s absurd to suggest that Gawker Media’s unpaid internship program was guilty of, in Thiel’s words, “ruin[ing] lives.” Plus, the company was not alone in being sued for offering unpaid internships: Similar claims were aimed at Viacom and Condé Nast, among others. A federal judge dismissed the lawsuit against Gawker Media in March 2016 after concluding that its editors provided the sole eligible plaintiff, Aulistar Mark, with “training and mentorship that [was of] the same sort of hands-on instruction he received from his educational institution.”
According to Forbes, Harder’s firm, Harder Mirell & Abrams, also had a role in an obscure defamation lawsuit filed by a Chicago lawyer named Meanith Huon in May 2011. Huon’s initial complaint targeted the legal news blog Above the Law over a 2010 article which claimed, incorrectly, that Huon had been charged with sexual assault on multiple occasions. (The plaintiff had only been charged once.) Huon later amended his complaint to add Gawker Media’s Jezebel and 100 anonymous Jezebel commenters as defendants, after the site wrote about Huon’s lawsuit against Above the Law.
Huon’s amended complaint argued that Jezebel had, in the course of describing the material facts of his own defamation case, “engaged in the same reckless or intentional misconduct as Abovethelaw.com.” A federal judge found this theory unpersuasive and, in 2014, dismissed all of Huon’s claims against Gawker, but permitted him to pursue some claims against Above the Law. The case then took a rather strange turn. Following the judge’s opinion, Huon settled his claims against Above the Law but decided to appeal his claims against Gawker Media in the U.S. Court of Appeals for the Seventh Circuit, which is currently considering the case.
According to Steve Mandell, an attorney for Above the Law who was present at the hearing, Huon told the judge in open court that he wasn’t worried about his appeal because he was “getting support from Hulk Hogan’s lawyers in California.” Huon and Harder declined to comment on the case, which is now on appeal.
The federal judge overseeing the case found that the author of the Jezebel article, Irin Carmon, had clearly noted that Huon had not been charged with sexual assault more than once, and relied on court testimony to show why he had been acquitted of the charge. Huon was hardly a victim, the judge held, writing that the post “bolsters rather than defames [Huon’s] reputation.” The judge continued (bolding ours):
Huon alleges that the report is defamatory insofar as it suggests that the jury acquitted him partly on the basis of a bartender’s testimony. The challenged statement appears at the end of the article’s discussion of his trial and reads as follows: “Huon’s version was that it was a consensual encounter, and partly on the strength of a bartender’s testimony that the woman had been drinking and asked where to go to have fun, the jury believed him.”
Huon asserts that the Gawker defendants never spoke to any jurors and simply invented the idea that the jury relied on the bartender’s testimony in reaching its decision. That is an odd argument given that the bartender’s testimony about the victim’s drinking and inquiry about where to go to have fun was almost certainly evidence that the defense elicited at trial; Huon does not explain how a report that credits defense evidence with contributing to a verdict of acquittal could defame the successful defendant. ... The import of the statement is that the jury found reason to discredit Jane Doe’s claims and therefore acquitted Huon of the charges; it thus bolsters rather than defames his reputation.
In other words: A Thiel-funded attorney is helping a man sue Gawker Media over an article that comes nowhere near invading his privacy, concerns a clear matter of public interest, and explicitly states that the subject is not guilty of a crime. Remember: Thiel told the New York Times that “it’s precisely because I respect journalists that I do not believe they are endangered by fighting back against Gawker.”
Again, it should be noted that, while Thiel has acknowledged funding multiple legal attacks, including Hogan’s, nobody knows for sure whether he’s behind all of Harder’s efforts to harm the company, or just some of them, or if he can even control what his money is used for.
At least some of the fights he appears to have been picking, though, have nothing to do with the kind of journalism to which he objects. If Gawker Media is, as Thiel claims, so serially guilty of egregious invasions of privacy against powerless individuals, why is he throwing his lot in with a lawyer intent on punishing Gawker for writing about Edward Ivari, the man who may have restored Trump’s hair to greatness, or Meanith Huon, whose coverage on Gawker “bolstered” his reputation?