Charles Harder, the attorney who won a $140 million verdict in Hulk Hogan‘s lawsuit against Gawker, doesn’t think that current defamation laws are flexible enough for plaintiffs. In a feature in The Hollywood Reporter, Harder, who has also represented celebrities like Amber Heard and currently represents Melania Trump, discussed some of the difficulties that people face when bringing defamation lawsuits.
One of the issues he addressed is the different standard that public figures are held to, compared to the general public when it comes to defamation suits against the media. In addition to showing that someone made a harmful, false statement to a third party, public figures have the added burden of showing that the party who made the statement acted with “actual malice.” That means that they made the statement either knowing that it was false or having reckless disregard for whether it was false.
“I think the actual malice standard is too stringent,” Harder said. He believes that the landmark Supreme Court decision that set the standard, New York Times v. Sullivan, got it wrong. “If you look at Justice White’s opinion in a Supreme Court case 20 years after New York Times v. Sullivan, he wrote a dissent and said we all made a mistake, that it has gotten to a point where it has created huge problems for a public figure who is defamed to do anything about it.”
Harder also thinks that media companies have too much leverage in lawsuits because they usually have deeper pockets. Referring to the Hogan/Gawker case (which was over invasion of privacy, not defamation), he mentioned how Gawker spent $10 million trying to defend themselves. “The deck is stacked against plaintiffs,” Harder said. “I don’t know too many people who can combat $10 million.” He also claimed that Gawker “drove up the bills” by filing motions, issuing subpoenas, and making multiple appeals.
Harder’s representation of Hogan drew criticism when it was learned that PayPal founder Peter Thiel funded the representation. Thiel wanted to take down Gawker because of an article they published about his sexuality. But Harder believes it’s totally fair considering what he was up against. “What Peter Thiel was able to do was level the playing field. That’s all he did.”
Despite his history of taking on the media (the huge verdict in the Hogan case led to Gawker Media going bankrupt), and his wish for more plaintiff-friendly laws, Harder says he is not opposed to freedom of the press. “I believe very strongly in a free press. But I don’t believe in a reckless press. The First Amendment isn’t unlimited.”
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