NEFAC, Media Groups Argue for Protection of Journalists in Gawker Bankruptcy Proceedings

CONTACT Justin Silverman | 774.244.2365 |

Dec. 5 Amicus Curiae Brief

The New England First Amendment Coalition recently joined an amicus curiae brief in a federal bankruptcy case that could expose former Gawker reporters to personal liability and, in the words of amici, “send a chilling message to journalists everywhere.”

The bankruptcy petition was filed after a Florida court earlier this year upheld a $140 million invasion of privacy judgment against Gawker for publishing portions of a sex tape involving former professional wrestler Hulk Hogan.

In re Gawker Media, LLC is currently being heard by the United States Bankruptcy Court for the Southern District of New York. Twenty-one media organizations and press advocates joined the Dec. 5 brief, which was initiated by the Society of Professional Journalists and the Reporters Committee for Freedom of the Press.

Of concern to amici is an indemnification provision that may be removed from the liquidation plan of Gawker Media, the online media company that filed for bankruptcy protection earlier this year.

“Journalists everywhere rely on such indemnification guarantees as a critical protection that allows them to engage in the sort of intrepid newsgathering and publishing that the First Amendment endorses,” the amici wrote. “To eliminate them from the plan would not just harm the well-being of Gawker’s former employees; it also would send a chilling message to journalists everywhere that, in the event of a media company’s bankruptcy, what had heretofore been their employer’s liabilities could suddenly become their own.”

Amici argued that the First Amendment provides protection for journalists from defamation and related litigation. Courts routinely include safeguards for the gathering and publishing of news, they wrote, and such protections are needed in this case.

According to amici:

“Both traditional and internet publishers typically indemnify their reporters and editors against claims arising from their journalism, including defamation claims. Such indemnification agreements are crucial to news reporting and publishing in the present age for the reason that few reporters and editors can individually afford to defend even a marginal defamation claim. . . . As a practical matter, without the promise of indemnification, even the threat of a baseless libel action may suffice to kill a reporter’s pursuit of a story or place an entire topic out of bounds, rendering the First Amendment’s protection of the freedom of the press a dead letter in every way that counts. Few journalists could bear the risk of reporting on controversial matters, and the public would go uninformed on matters of intense and legitimate public interest, such as allegations of criminal conduct, government corruption, and corporate malfeasance.”

These are potential consequences not just for former Gawker journalists, but reporters in news organizations throughout the country, said Justin Silverman, NEFAC’s executive director.

“Our watchdogs need the ability to gather news without fear of personal liability,” Silverman said. “If Gawker reporters are exposed through these bankruptcy proceedings, journalists for other organizations may feel less confident in their own protection and less willing to pursue the controversial stories that need to be told.”


NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include The Providence Journal Charitable Legacy Fund, The Robertson Foundation, The Boston Globe and Boston University.