Gawker gives itself a near-fatal shock

 Stephen Carter

By Stephen Carter Bloomberg View

Published June 15, 2016

Gawker was never going to make it. This is the site, remember, that once thought it a swell idea to help its followers find the personal telephone numbers of members of Sarah Palin's family. Or that a decade ago introduced the creepy Gawker Stalker map, to "visually pinpoint the location of every stalkworthy celebrity as soon as they're spotted." Or that seems to think that outing as gay an unknown and heterosexually married magazine editor would be great fun. No wonder Gawker's then-editor confessed nine years ago, "Not a week goes by I don't want to quit this job, because staring at New York this way makes me sick."

This past week the site's proprietor, Gawker Media, filed for bankruptcy and put itself up for sale. The proximate cause was the refusal of a Florida judge to stay enforcement of a jury's $140 million verdict in the invasion of privacy lawsuit by the professional wrestler Hulk Hogan. But what really brought the site down was its desperate need to stay ahead of the manic forces that had created it.

Gawker once possessed a certain car-wreck-watching allure -- what another former editor called "an irresistible appeal for desk-bound drones in all fields." In 2009, it was named blog of the decade by AdWeek. But the features that made it so compulsively readable for so many also hastened its demise.

In his excellent monograph "What Price Fame?," the economist Tyler Cowen offers a simple model of the workings of what we might call the market for outrage. Some celebrities, he points out, draw a fan base precisely because of their refusal to conform to social norms. Their followers love them for not caring what others think.

The trouble with that kind of celebrity, Cowen warns, is that it produces the need to signal constantly to fans that you will never give in and become just like everyone else. Therefore the celebrity whose public self involves outrage must offer something new and more shocking with each performance. (Think Ozzy Osbourne.) The fans don't necessarily like all the outrageous things the celebrity does or says. They may dislike some of them intensely. But they stick with him, Cowen explains, because by constantly outdoing yesterday's outrage, the celebrity signals that he will never join the establishment. (Think Donald Trump.)

This is pretty much what happened to Gawker. What started in 2002 as essentially a gossip site had to innovate constantly to stay ahead of the crowd of imitators -- and to assure its audience that it would never be just like everyone else.

But if your main value to your followers is your ability to shock, you eventually face a choice. On the one hand, you can surrender and join the establishment after all. (Think Ozzy Osbourne settling into "The Osbournes.") On the other, in search of ever-greater outrage, you might reach the tipping point, where you lose old fans faster than you gain new ones. (Think Donald Trump's unpardonable verbal abuse of Judge Gonzalo Curiel.)

Gawker reached its decision point years ago, and decided to stick with shock. Probably the owners should have realized that they had problems when even the Gawker Stalker map was ultimately washed away by a tide of ... well, outrage. Instead, they doubled down, going after Silicon Valley billionaire Peter Thiel (big mistake) and finally posting the video of Hogan (real name Terry G. Bollea) having sex with the wife of a friend.

Which brings us back to the lawsuit.

Trial lawyers warn their clients never to be sarcastic in depositions, never to be smart-alecky, never to try to score points. The less you say, the less that can be used against you. By that measure, the comment by former Gawker editor Albert J. Daulerio that the site wouldn't show a sex tape featuring a celebrity under 4 years of age has to rank as one of the silliest ever made in a deposition. Gawker argued that Daulerio was being flippant, but once the astonished jury saw the videotape, the site's fate was sealed.

I have no doubt that Daulerio thought he was being cute. But his sick joke was the wrong kind of cute at the wrong moment -- in a word, outrageous. In choosing to try to be funny, he showed exactly the sort of judgment that Gawker's followers had come to expect.

And that was the problem.

I am a near absolutist about the First Amendment. The great legal scholar Thomas Emerson warned long ago that the right to privacy, although crucial to preserve, poses a constant threat to freedom of the press. In any given case, finding the right balance between the two should be a matter of delicacy. But even if you think the jury went too far, Gawker made things easy.

Some have tried to make this a David-and-Goliath story, with the hip-but-heroic journalists of Gawker being crushed by Thiel. The site, moans a New Republic columnist, has been "punished because one billionaire didn't like its stories about him." And there might indeed be reason for complaint, had Gawker charged Thiel with, say, financial improprieties. Instead, Gawker outed Thiel as gay -- an odd bit of news judgment, given that Thiel, although private, was perfectly open about his orientation. If this is your idea of journalism, you'd better be prepared to make enemies.

And so the once fantastically successful website is in pieces on the floor. Even before the bankruptcy filing, traffic was down sharply. No doubt Gawker Media will have bidders in the bankruptcy auction. Its valuable properties include, among others, Gizmodo, Jezebel, Deadspin, and io9. But for Gawker itself, the future looks less rosy. Nobody invests in a train wreck.

Sic transit gloria mundi, we would have said in the old days. Or, Pride goeth before a fall. But the real lesson is simpler: Even the market for outrage has its limits.

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Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. Among his courses are law and religion, the ethics of war, contracts, evidence, and professional responsibility. His most recent book is The Violence of Peace: America’s Wars in the Age of Obama (2011). He is an author and Bloomberg View columnist.