Gizmodo / 2016-10-07 15:04
Photo: Getty ImagesSilicon Valley billionaire and Donald Trump delegate Peter Thiel has defended his legal attack against Gawker Media by claiming the company "routinely published thinly sourced, nasty articles that attacked and mocked people." At the same time, he has insisted that reporters should not be alarmed by his role in destroying an independent media outlet. "It's precisely because I respect journalists that I do not believe they are endangered by fighting back against Gawker," he told the New York Times.
Thiel's legal proxy, the Beverly Hills entertainment attorney Charles J. Harder, has echoed his patron's sentiment, telling the Hollywood Reporter last month that "I believe very strongly in a free press." Yet Harder's success in bankrupting Gawker Media and its founder Nick Denton, hounding former Gawker editor A.J. Daulerio, and closing the company's flagship web site, has made him a go-to litigator for powerful people who don't like critical coverage. Harder's reach has extended well beyond the network of sites formerly known as Gawker Media (following the purchase of the company's assets out of bankruptcy by Univision, it is now known as Gizmodo Media Group). As Harder told the Hollywood Reporter, he is taking cases from "higher profile clients" and "doing it at a higher frequency."
Indeed, in recent months, Harder has demanded the retraction of five different articles originally published by Gawker Media, ranging from Deadspin's coverage of a publicly available lawsuit to Jezebel's feature on a controversial group known as Superstar Machine. Harder has also personally threatened to sue John Cook, the executive editor of Gizmodo Media Group, over remarks Cook gave to another outlet. Gizmodo is publishing the threats today for the first time.
These kinds of demands are no longer anomalous. Catalyzed by Peter Thiel's virtually unlimited reserve of money, along with a growing client roster drawn by the $140 million verdict in the Hulk Hogan jury trial, Harder is leading an unprecedented legal attack on American news outlets. (Thiel has acknowledged funding multiple cases against Gawker, but has repeatedly declined to specify the extent of his support for Harder's clients. There is no evidence that he is behind Harder's latest efforts.)
Harder is representing Melania Trump in a $150 million defamation lawsuit against the U.S. arm of the Daily Mail and an obscure blogger in Maryland over their coverage of allegations that his client once worked as an "escort." He has also reportedly been retained by disgraced Fox News CEO Roger Ailes, apparently in anticipation of potential legal action against New York magazine and its national affairs editor, Gabriel Sherman, who has reported extensively on the sexual harassment allegations leveled by dozens of women against Ailes.
Following the Hogan verdict, Harder branded himself a privacy advocate standing up for celebrities against invasive media outlets—particularly those depraved enough to publish a "sex tape." Yet some of his reported clients (or in Melania Trump's case, her husband) are associated with behavior at odds with that stand. Ailes, for instance, allegedly harassed a subordinate by threatening to publish a risqué video of her dancing in lingerie. Donald Trump has acknowledged that he and Melania watched Paris Hilton's sex tape, which was released without Hilton's approval. Just last week, Trump encouraged his supporters to find and watch a purported sex tape featuring former Miss Universe Alicia Machado.
Harder's campaign against the press closely tracks with the ideology of Trump, who has turned his campaign into a sustained assault on the media. Peter Thiel spoke at the Republican National Convention to praise Trump's political vision. Ailes currently advises the Trump campaign. Trump has repeatedly criticized the perceived weakness of U.S. libel laws and has openly threatened to sue the New York Times over its reporting on his life and presidential run.
"It's not a huge leap to imagine which lawyer would bring a defamation case on [Trump's] behalf," the Hollywood Reporter observed last week in a profile of Harder. The Reporter also noted his prior threats against Gawker over a story involving Trump's hair, as well as the two men's shared opinion that U.S. libel laws need to be strengthened in favor of plaintiffs. "I think the actual malice standard is too stringent," Harder told the magazine, referring to the legal principle that a public figure must prove that a defendant acted with "actual malice" to prevail in a defamation case against a news outlet.
In late August, Harder issued several new legal threats against Gizmodo Media Group over stories that were, in some cases, published years ago. One targeted a 2014 Deadspin story about a former ESPN employee named Heather Paskewich, who claimed in a federal lawsuit that her supervisor, Heli Soto, digitally manipulated photos of her to be more "sexually provocative" and posted them online. Harder, who is now representing Soto, listed nine allegedly "false and defamatory" passages from Deadspin's coverage of the lawsuit.
Each of the passages that Harder describes as defamatory were sourced from Paskewich's complaint. American courts have widely recognized the right of media outlets to publish and quote from official court records. (According to the case's April 30, 2015 docket entry, Paskewich and ESPN reached an out-of-court settlement; the terms were not disclosed.)
Harder has also added I'm Shmacked's Arya Toufanian to his client roster. (I'm Shmacked hosts and films college parties, which New York Magazine has called "an obvious descendent of Girls Gone Wild.") In his August 22 letter to Gizmodo Media Group, Harder demanded the removal of a pair of Jezebel stories from 2014 about a tweet from the I'm Shmacked Twitter account. It was directed at Business Insider reporter Caroline Moss after she noticed that the account had copy-and-pasted a joke that had gone viral on Twitter. That tweet, which has since been deleted, read:
"They said make fun of I'm Shmacked."
"What's the worst that can happen, they said."July 23rd. 9:22AM.
Caroline is prepping her anus.
Harder's letter acknowledges that the original Jezebel post was "based on Mr. Toufanian's tweets," but he nonetheless claims that the stories are "false and defamatory" and amount to "libel, false light invasion of privacy and intentional infliction of emotional distress."
It's unclear why Toufanian waited more than two years to retain a lawyer to threaten Jezebel. Harder reportedly told the Hollywood Reporter's Eriq Gardner last month that "he's no longer monitoring Gizmodo Media" for potential lawsuits. "I asked [Harder] whether he is following Gawker's content after the sale to Univision," Gardner said in an email to Gizmodo. "He responded that occasionally people forward him an article but that he is not actively monitoring."
Harder responded to an email inquiry from Gizmodo, but insisted that the statement be treated as off the record.
Another of Harder's threats targeted Jezebel's investigation into Superstar Machine, which describes itself as "an elite gathering of highly determined, fiercely courageous young women in their 20s & 30s." In interviews with senior reporter Anna Merlan, ex-members of the group characterized their membership in Superstar Machine in far darker terms.
On behalf of Superstar Machine's owner, International Sherick LLC, Harder described 48 separate passages—including "Many of the women involved in Superstar Machine are aspiring actresses, or else deeply involved in New York's yoga and wellness communities"—as "false and defamatory." In the same letter, Harder claimed that Merlan's reporting "has caused Superstar to become the subject of ridicule."
The final Gizmodo Media Group story targeted by Harder's cease-and-desist campaign is Deadspin's investigation of "Vegas oddsmaker" Randall James Busack, a.k.a. R.J. Bell. Harder's law firm threatened Gawker Media over this story in June. In a separate letter sent on August 22, Harder put Univision on notice: "As the new owner of Deadspin.com, Bell and Pregame will have causes of action against you if the Story remains on Deadspin.com after the transaction closes."
But Harder's most recent threat isn't even over a Gizmodo Media Group story. It came a few weeks after his August letters, on September 10. On that day, Forbes published an online article that included a quote from Gizmodo Media Group executive editor John Cook—who is personally named in two lawsuits previously filed by Harder—expressing views critical of Harder.
In response, one of Harder's colleagues, Ryan J. Stonerock, sent a cease-and-desist letter to Univision's lawyers in which he threatened legal action against Univision, Gizmodo Media Group, and Cook himself. The emphasis in the following quote is in the original:
In the [Forbes] Article, Mr. Cook made the statement: "The end goal for Charles Harder is to harm people . . . Whether that's [former Gawker editor] A.J. Daulerio or Sam Biddle or Nick Denton or me. I do not believe he has his client's interests at heart" (the "Defamatory Statement").
The bolded sentence in the Defamatory Statement is false, malicious and highly defamatory.
Stonerock threatened Cook with a defamation lawsuit as well as with a "tortious interference" claim, apparently on the theory that Harder's "existing client relationships" could be damaged by Cook's views. He also threatened to sue Univision for "negligent hiring practices" for its continued employment of Cook.
Stonerock's letter also includes a demand that GMG transcend the very limits of spacetime and maintain "any and all documents and data ... which refer or relate in any way to John J. Cook, from the beginning of time until the present" for potential legal discovery. Here is the passage in full:
This demand includes a legal duty to maintain, preserve, protect and not destroy (collectively "preserve") any and all documents and data, both electronic and hard copy (collectively, "documents"), which refer or relate in any way to John J. Cook, from the beginning of time until the present. This demand also duty [sic] to preserve all documents that refer or relate in any way to Mr. Harder and/or the Defamatory Statement. This preservation demand includes, without limitation, the preservation of all electronic mail (email), letters, facsimile transmissions, memoranda, instant messages (IMs), text messages, chats, phone messages, phone logs, calendars, reports, handwritten notes, typewritten notes, charts and spreadsheets, among other types of documents and communications, and all manners of storage including without limitation office servers, email servers, backup tapes, desktop computers, laptop computers, hard drives, archive files, thumb drives and storage devices of all types, mobile phones and smart phones.
You can read Harder's letter concerning Arya Toufanian here, his letter concerning R.J. Bell here, his letter concerning Superstar Machine here, his letter concerning Heli Soto here, and his letter concerning John Cook here.
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