Conspiracy, page 14
As with A.J.’s, there is a certain irony in the fact that the blinking camera sitting across from Denton in that deposition room was recording a video as well, and that what was captured on this recording would be wrenched from context and used against him in a public forum, too. And who wouldn’t, if they were trying to embarrass and undermine someone in front of a jury, rush to make use of comments like the ones Denton made in those long hours of questioning in that drab room in front of a camera?
“I believe in total freedom and informational transparency. I want everybody to know everything. And I think society, this country that I moved to will be better off if we could talk freely about everything. So that’s—I’m an extremist when it comes to that. That’s why I love the U.S. I love the presumption that the expression is free and I want to make fullest use of that liberty that the internet provides,” he said calmly to the camera.
There is a story that Herodotus tells in The Histories about a war between Sparta and Tegea. In it, the Spartans were “so confident of reducing the men of Tegea to slavery” that they literally brought chains with them. But they lost, having dreadfully underestimated their enemy, and with poetic justice the prisoners were “forced to wear on their own legs the chains they had brought.” Gawker’s depositions would prove not dissimilar. Both A.J. and Denton would one day be marched into court chained to the words they had spoken in the depositions they had so confidently conducted.
“I think Gawker had a Superman complex: you can shoot me with a gun but it will bounce off my chest. That was their attitude,” says Harder. “I knew we had a benefactor who for the moment was paying the bills. But I never believed for a second that we were invulnerable. They just seemed to think that nothing could stop them and nothing could harm them.” Why else would Gawker decide in late April not only to ignore Judge Campbell’s injunction, but to respond by filing to disqualify her from the case entirely?
There was a simple reason that both Denton and Daulerio might underestimate the significance of the statements they made in their depositions. According to the transcripts of the nine Gawker employees deposed as part of the trial, including its CEO, its COO, its CTO and chief strategy officer, and its editor, not a single one had been deposed previously related to a Gawker matter. Six of them had never been in a deposition before, ever, for any reason.
Over the years, Gawker had been sued at least a dozen times. Fred Durst in 2005. Dane and Gayheart in 2009. HarperCollins and Sarah Palin in 2010. A flight attendant who worked for Arnold Schwarzenegger in 2011. Dr. Phil in 2013. A New Yorker profile on Nick Denton mentions offhandedly that the sites received at least one cease and desist letter nearly every week (if this was true, by 2013 it would have added up to hundreds and hundreds). In one 2013 filing, Gawker’s lawyer tells the judge that they have received so many cease and desists over the years that it would take at least several days of her time, plus several days of another lawyer’s time, just to go through and organize them for the court. She pleads that doing so is essentially an impossible task. There are so many lawsuits and claims against Gawker that in 2010, years before Hulk Hogan had entered the picture and before Peter Thiel had even hardened enough to consider hiring Charles Harder, one of Gawker’s lawyers would joke to the Observer that they had been sued enough times to literally fill a book. “One day,” she said, “there will be a book called The Collected Legal Works of Gawker Media.”
Despite all these letters, after Gawker has been a party in multiple lawsuits and seriously threatened with legal action many more times, not a single case had ever proceeded to even this preliminary stage of discovery. In Daulerio’s words, Gawker had “kind of walked through the raindrops for over a decade.” They were Superman, at least up to that point. They didn’t take any legal matter seriously because they never had to. But the past is no indicator of the future—ask the fattened Thanksgiving turkey or the proverbial man stacking straws on a camel’s back. It’s Rome telling itself that no one could ever cross the Alps. Then one day Hannibal appears in Italy with his elephant. Shit, they can do that?
Thiel’s team would have had no idea about this fuller context until all the depositions were completed, until they looked at the first answer to the first question by each Gawker employee: “Have you ever been deposed in a Gawker matter before?” “No, I have not.” That initial hunch—that secret edge that Thiel had first suspected—that no one had ever truly challenged these people before was confirmed. “At that point,” Thiel said, “we knew that we had gotten further than anybody else. It was a sample size of one. If you thought of it as a ten-step secret plan, and the deposition was Step 3, and you could get to Step 3, very deterministically, if you have a halfway decent lawsuit, you can get the person deposed. If it turned out that he was deposed many times before, that would’ve been a less good fact. When we were the very first person to ever get there it suggests that nobody even tried. We are in terra incognita here. This undiscovered country.”
For the first time, Gawker’s leadership is out of its own element, no longer in its familiar position of safety or comfort—of being the bully on the block—whether they understood that seriously or not. In a joint interview from 2013, when even the idea of a trial was a faraway impossibility, Denton explained to a reporter how puzzled he was that anyone would bother to pursue this seemingly minor issue with such intensity:
[Hogan has] pursued every single possible avenue, and I don’t really understand the logic of . . . I don’t understand what they want. Do you? I find their motivations hard to follow. I don’t really understand the relationship between the lawyers and Hogan. I don’t understand who is getting what out of this. It must be very expensive for them, and I don’t see that they have a particular prospect of some kind of mega-payday. Sometimes it’s hard to deal with seemingly irrational antagonists. . . .
And then, in the same interview, Denton casually outed yet another gay celebrity. The reporter would, in a gesture of that journalistic selfcensorship Denton had complained about, redact this unsuspecting person’s name before publication.
“When we published the Hulk Hogan sex tape, no one cared,” John Cook would say in an interview. “We’ve published a lot of stories where people are shocked and outraged and you feel that outrage. . . . Hogan did not have that dynamic at all.” Gawker cared about what their readers thought, what their friends in the media thought, and since those audiences were okay with the post, the pesky opinion of a court in Florida didn’t seem to matter much. When Gawker’s writers looked at Terry Bollea, as they looked at so many of the people they wrote about, they saw not a person but a character in the game of their digital day-to-day existence. They saw the comical, cartoonish professional wrestler, the stupid celebrity who like all celebrities must enjoy all kinds of publicity, good or bad, chosen or otherwise. They did not see a man who’d lost nearly everything and had been pushed to his breaking point. Besides, their lawyers had won all those preliminary motions, and that must have meant something.
There were signs, though, if anyone had wanted to look, that they might have made an enemy who would be difficult to appease. The mansion that Hogan filmed his reality show in had once been worth $25 million. It sold in 2012 for $6 million. The other houses, the friends, the family, the glory days—they were all gone. His wife had taken 70 percent of their marital assets in the divorce settlement and promptly settled in with a younger man. How long and how far had Terry Bollea crawled from the shipyards of Tampa to get to where he got? How many chairs did he take to the head? How many dingy arenas did he perform in to build this character? How much did he love being loved, by children and their parents alike, as the caricature of American excess and goodness in the Cold War? This is the man who got to play the hero for a living and now much of that is gone. And here some New York blog was humiliating him by parading his best friend’s betrayal across the world wide web and putting his naked, aging, balding body on display in a sex tape he had never asked to be in.
He was a man with little to lose. The kind of person to whom you wouldn’t want to give a singular obsession, and the kind of person whose singular obsession you likely do not want to be. I ask Denton repeatedly if he feels like he misjudged Hulk Hogan, but even now I think he cannot admit that he did. Thiel was the one behind the conspiracy, so he gets all the credit and the blame. Yet Hogan deserves some, too. He was the one who charged ahead, who could have accepted any of the settlement offers that would be forthcoming, who didn’t need to and probably shouldn’t have filed the lawsuit in the first place. It probably would have been smarter for him if he hadn’t—he might still be in the WWE Hall of Fame if he had walked away when the setbacks started.
It cannot be said that Gawker was not warned. Hogan’s personal attorney makes many attempts to explain to Gawker’s lawyers who his client is, what motivates him, what kind of man it takes to make it as a professional wrestler, where the act might be fake but two bodies hurling each other down against the mat is real. Do Bollea’s many surgeries signify nothing to them? Do they think the injuries were fake, too? This man fights.
There was an exchange between Charles Harder, the ambitious lawyer with something to prove, and Seth Berlin, Gawker’s lead counsel, after one of Gawker’s early legal victories in the case. Once again, Gawker thought that this ruling would finally put the matter to bed. Berlin approaches Harder. “Where’s all this going? How long are you guys going to be at this?” He gets his answer: “Until my client is bankrupt or until you guys give up.”
This could so easily be something that one lawyer says to leverage a settlement from an opponent. In fact, it is what lawyers often say to get settlements. They claim their client is going to fight to the end, but rarely is this true. Certainly, it was more reasonable to assume that it was just typical posturing, rather than to guess that it was impossible for Hogan to go bankrupt because he had a billionaire backer. Looking at the facts as they could see them, the Gawker people don’t heed the warning or take it as an opportunity to negotiate. Instead, they try to exercise their own leverage.
In March 2014, after the unremarkable depositions of Heather and Bubba Clem in Florida, Hogan’s lawyers are working at the Sandpearl, the same hotel that was the site of the disastrous sting operation a year and a half before, when Heather Dietrick, Gawker’s general counsel and eventually the company’s president, calls to suggest she drive over and talk. Believing that a serious settlement offer might be forthcoming, David Houston agrees to meet and they discuss the case while they walk down the beach. Heather has an offer: Gawker is willing to let Hogan dismiss the suit. If he does so now, they will not go after him for attorney’s fees. We will let you bend the knee, and we will not hold it against you that it took so long for you to come to your senses.
Harder’s warning, then, was dismissed as unbelievable. In part because it was. Nobody fights to the end. If they did, a lot more cases would end up at trial and with a verdict. Gawker seemed to believe that Hogan had forgotten that he’s not an actual hero—that he just played one in a fake sport. He’ll figure it out, they thought. He’ll see the futility of resistance soon enough. But Heather had taken the safety of this assumption. She had been so confident in her assumption that right there on the white sand of Clearwater Beach, just a few blocks from Hogan’s home and the hotel room where he’d put himself in danger for nothing, she felt she could dictate the terms. In a sense, she helped turn Harder’s prophecy true.
“I took it as an insult,” Hogan would say. “‘If you drop the lawsuit we won’t charge you attorney fees and let you walk away.’ In my opinion she was saying, ‘We won’t destroy your life like we destroyed everybody else’s.’” Now he wanted not just to fight them, but to prove that they had seriously underestimated him, that they had no idea who he was.
Deterrence is an important strategy. The more intimidating you are, the less people conspire against you. Yet the powerful must always be very careful with their threats, with their demonstrations of superior resources. Aimed poorly, they have a nasty habit of backfiring.
The significance does not seem to have registered to Dietrick and others at Gawker that this case, even in 2013, had already gone further than any past lawsuit they’d been forced to defend. The kind of enemy they had made, the way in which they had aggravated him, was not yet clear to them. That they’d actually made an enemy, that this wasn’t some theatrical production, did not yet compute.
Thiel had said something to Wired magazine not long before this juncture, speaking not about the case but about an investment, that makes it clear how much he relished this kind of ignorance. It’s what he exploits, counts on even. “The things that I think I’m right about,” Thiel said, “other people are in some sense not even wrong about, because they’re not thinking about them.” In this sense, it’s an oversimplification to say that Gawker was wrong about the threat it faced. It was actually much worse. It was totally and utterly unaware of it—unaware of how much harder it was making it for itself with each decision, each misreading, each misjudgment.
At almost every step Thiel avoided making this mistake himself.* He had assembled a team of patient, cautious individuals who were prepared to spend essentially any amount of money and work for any amount of time. He did the job of the commander, of the strategist: to discern what is going on in your opponent’s mind. They had not plunged into anything—he had waited multiple years before even making a move, so that the first step together wasn’t also right off a cliff. They had taken the time to think not just about what the Gawker people thought, but about what the Gawker people thought about what other people thought about them. According to Harder, they had read Gawker as “people who don’t settle,” and this belief was confirmed through their interactions. “Everyone is a person who settles unless they demonstrate to you over time that they are not a person who wants to settle. They had insurance and they were very stubborn and righteous. They believed so strongly that they were right and that we were wrong in challenging them, because in their mind the First Amendment was so strong and so clear in their favor, that who are we to challenge them? That was their attitude.”
In pursuing a strategy of total destruction through the financial support of legal challenges to Gawker, Thiel was acknowledging its strength as an adversary. He wasn’t sure specifically what it was capable of—he couldn’t have known when he began in 2007 that in 2012 Denton would still be “sick” of him, that Denton would be sending chat messages suggesting to A.J., having taken over as Gawker’s editor, that he write a piece on the rumor that Peter Thiel was bad in bed. Nor could any of the conspirators have anticipated at the beginning what would be said in those depositions, or what would be unearthed during document discovery—the chat logs, the emails, and the documents that Gawker would have to turn over. He had spent his time just thinking about, studying, and poking around these people he was going to pursue. He gathered every opinion he could get, pumped people for information, listened to every single warning and whispered legend about how invincible Gawker was as a media outlet. Knowing this doesn’t prevent him from proceeding, but it does determine how he proceeds. He prepared for an arduous legal battle and patiently waited for the right opportunity to begin one. He found partners who were willing to take on that fight, and he remained, as ever, open to learning more about his opponent as information came in. Gawker might not know Peter Thiel was its enemy, but that enemy had come to understand it even better than it knew itself.
What Thiel learned watching those depositions of Denton and Daulerio was that the men were worse than whatever uncharitable assumptions he had previously held about them. Who says those things in a legal proceeding? Who jokes about publishing child porn while under oath? Who describes an illicitly recorded sex tape and the article that brought it to millions of people as “sweet”? Do these people not understand how they come off?
As surprised as Thiel and Mr. A and Charles Harder are by what they’ve seen, they are also encouraged. If Denton and Daulerio were delusional enough to say them on the record, reckless enough to make these unforced errors, there was no telling what other missteps they might make on this slow road toward a jury trial. If they had never been deposed, it meant that this was all unfamiliar territory to them, and that the decisions Gawker would be making were going to be tinged with that arrogance. And, flashing forward, if Harder could get them far enough, what would a jury think of those comments? What would it be like to put these two on the stand?
There is something invigorating about taking action, getting away from the planning and toward the doing. But the feeling you get when it seems like real progress is being made, that you could actually win . . . that feeling washes away all doubts. And that is what the conspirators were experiencing for the first time.
CHAPTER 10
The Power of Secrets
Secrecy has always been the essential element in conspiracies. It is, after all, very hard to have a secret plan you’ve told everyone about. For obvious reasons, it’s more difficult to destroy someone or something when they know you’re coming for them.
History is, if anything, one long exercise in the triumph of secrets. It could be argued that the entirety of the Second World War hinged on one critical event: the Allied breaking of Enigma, the codes with which the Axis powers communicated their secret plans. And then the conspiracy to keep Ultra—the code name for the Allies’ codebreaking method—secret for the entire war, never letting the Germans and Japanese and Italians know that they knew their every move.
Today, we have a complex relationship with secrecy insomuch as we live in a world that no longer values it. Transparency carries now in the modern mind the weight of moral imperative. This two-handed truism sits at the foundation of Gawker’s mission and cult-heroism: the full exposure of open (and closed) secrets. It has become a perversion of Nixon’s line about the cover-up being worse than the crime where today it’s automatically a sin if you keep it a secret.
