The Weaponized Lawsuit against the Media: Litigation Funding as a New Threat to Journalism
68 Pages Posted: 24 Feb 2017
Date Written: February 22, 2017
This Article identifies a new front in the current war against the media — one in which billionaire private actors clandestinely fund other people’s lawsuits in an attempt to censor press entities. The use of strategic litigation to shutter media outlets constitutes a major threat to the expressive order. And the current climate of press failures, institutional disaggregation, decreasing accountability journalism, and declining public trust — the very vulnerability of the press today — significantly amplifies the chilling impact of strategic third-party funding. It does so whether the strategy is death-by-a-thousand-litigations or titanic, bankruptcy-inducing damage verdicts.
Still, contrary to the assertions of both funders and their opponents, finding an appropriate response to these developments is far from easy under current law. It is neither realistic nor constitutionally palatable to prohibit third-party funding in media cases. Such funding can play a valuable role by ensuring that even penurious individuals can vindicate viable claims against media organizations. Yet existing champerty and maintenance jurisprudence cannot adequately address the problem. A richer, more multivalent approach is called for. In that spirit, this Article proposes a realistic four-pronged strategy: (1) judicial discretion to order disclosure of third-party funding in discovery; (2) waiver or reduction of appeal bonds in third-party-funded media cases where such bonds would effectively make verdicts against the media unappealable; (3) development of counter-funding strategies and support of third-party-funding watchdogs; and (4) consideration of a litigation misuse claim against third-party funders in cases where their support is designed to shutter press outlets.
Keywords: Media, Journalism, Third Party Funding, Litigation Funding, Champerty, Press, First Amendment, Bollea v. Gawker, Peter Thiel, Hulk Hogan, Frank VanderSloot, Mother Jones, Chilling Effect, Litigation Misuse, Anti-SLAPP, Discovery, Privacy
JEL Classification: K1, K4
Suggested Citation: Suggested Citation