Gawker’s Elizabeth Spiers: Against the Death Penalty for Media Companies

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By Elizabeth Spiers | 11:38 am, June 11, 2016

Do you support a death penalty for media organizations? And if so, what crime is so heinous as to warrant it?

(For the counter-argument, Heat Street’s Louise Mensch: Why Gawker deserves to die)

Does persuading the American public that we should be dragged into a $2 trillion war over false claims of WMDs qualify?

Does a large, enormously well-funded major TV broadcast network’s erroneous assertion that a presidential candidate avoided the draft based on forged documents warrant total destruction of the network?

I doubt you’d argue that CBS or The New York Times should cease to exist because of the Killian papers or because of Judy Miller’s reporting. So, for the rest of this column I will ask two things of you:

  1. I want you to hold your nose and think of a media organization that does not connote prestige, and imagine equally proportionate mistakes — for their size, scale, and areas of coverage.
  2. I’ll ask you to look past my own biases as the founding editor of Gawker and as a journalist.

First, about those biases. I was the founding editor of Nick Denton and I founded the site in December of 2002, and I left in September of 2003. I’m happy to have started it, but I’ve also had epic fights with Nick Denton. We have been okay for a long time, but in the early days I did refuse to speak to him for six months. So I am not de facto “in the tank” for Gawker — no more than you would be for a job you held 14 years ago and voluntarily left (wanting to throttle the owner).

Gawker co-founder Elizabeth Spiers
Gawker co-founder Elizabeth Spiers


So, my own history aside, I want you to think of the Times, and CBS, and Gawker. Any media outlet you like. ESPN. The National Review. Cat Fancy. I don’t care.

And I ask again: Should there be a death penalty for media organizations? If so, what are the thresholds before they’re marched in front of the firing squad? And who gets to pull the trigger?

The courts, you say?

In Gawker’s case, if the judiciary is the decider, then it’s mostly decided — 3 out of 4 times, and I would bet soon to be 4 out of 5 on appeal — that Gawker was in the right in publishing an excerpt of the Hulk Hogan sex tape. (The filings are here and here, if you’re not familiar — which most people aren’t, because they’re only aware of the jury trial in Florida, the only proceeding covered by the national broadcast media.) If we were using judicial outcomes to judge, Gawker would be a clear winner on the legal front.

But let’s pretend that the Florida outcome is correct. I want to talk about the even so scenario. Which is: Let’s assume Gawker, or whatever media company you want to imagine, has actually done something wrong. Something illegal. What happens when a media outlet gets something wrong? What should they pay, and how should they pay? Are modern juries (or even most judges in bench trials) equipped to decide where the lines of free speech lie? What’s newsworthy and what’s not? What’s in the public interest and what’s not?

The jurors in the Hogan trial bragged that they wanted to put Gawker in its place because it was “arrogant”; not because it was engaging in illegal activity. If arrogance is the bar, how many other media organizations are at risk in that context? Especially in an environment where Gallup indicates that only a minority of Americans have a “great deal” or “fair amount of” trust in the media.

Here’s the reality: Gawker produces thousands of stories a year. You can point to a handful in its history that are genuinely appalling — ones that even the owner doesn’t want to stand behind. But the vast majority of the company produces good work. (If you need some examples, here are some, and that’s just on the newsy side, putting aside interesting or entertaining features.)

But even if we’re talking about the bad stories Gawker has done: How many and how bad? And compared to what? This doesn’t excuse bad work, but any media outlet that’s produced for as long as Gawker has and as much as Gawker has — and this is key: done actual reporting — has produced work it regrets. Because if you write and report often and for a long time, you will eventually get things wrong. And some of those things will be genuinely, horribly regretful. Aggressive reporting involves a higher risk of error.

If your entire mission is to avoid error, you avoid any stories that are controversial, that anyone doesn’t want you to do, that exist in gray areas of reporting (and only amateurs think there are no gray areas), and that never offend or upset people. And if you avoid all of those things, you’re probably not doing journalism — you’re doing PR.

So let’s take it for granted that Gawker produces thousands of stories a year and by sheer dint of statistics, some of them are going to be wrong or in offensively bad taste. And probably at least a handful of them are the result of bad actors — in this case, crap reporters and/or editors.

Is it reasonable or healthy to deter any episode of journalistic malpractice by totally shuttering the media outlets in which they occur?

Is the Hogan/Thiel business more egregious than helping pull America into a catastrophic war in the Middle East? Of course not. But no one’s calling for the Times’ demise, because it has a protective shield of gravitas — which is an elitist bias. There are no lefty purists who would argue that the Times should be put out of business because they made the mistake of not fact checking Judy Miller stringently enough. And rightly so. Similarly, if there were no CBS because Dan Rather reported something about George W Bush that turned out not to be true, would we be okay with that? And if you think this is different, why? Because these media organizations are bigger and they report on bigger issues on a bigger scale? They also screw up bigger when they do.

So, if you think it’s not the same thing, you have to ask yourself whether you’re really making an argument that media outlets are only allowed to screw up if they’re big enough to weather hundreds of millions of dollars in litigation. A future like that would leave all the coverage of very powerful — people like Peter Thiel — to the large media companies. If you happen to be an indie media outlet and you try to cover these people and you screw it up, even a handful of times out of thousands… you’re dead, permanently.

I don’t think Gawker actually erred journalistically, but let’s pretend they did. How big do you have to be that you’re allowed to live if you make a mistake? If Fox News had written about Peter Thiel being gay and his fund Clarium failing, would anyone be okay with its total destruction? (Even if that destruction was carried out by going after the network on other, unrelated stories that they got wrong, as Thiel did by financing multiple lawsuits against Gawker?) What if the Times wrote about those things? Would you be okay with the continued existence of those publications in the same situation. If so, why?

I understand that many people find Gawker tasteless. But the penalty for tastelessness shouldn’t be death.


Elizabeth Spiers is founder of The Insurrection, a NYC-based agency and research firm. She was the founding editor of