7:55am PT by Eriq Gardner
"Gawker Slayer": A Time's Up Referral and a Lawyer's Journey From Hollywood to Trumpland
On March 8, a few days short of the fifth anniversary of a $140 million jury verdict in 2016 that shocked the media establishment and perhaps foreshadowed an anti-elite sentiment that would sway the presidential election that year, Gawker Slayer: The Professional and Personal Adventures of Famed Attorney Charles Harder will be published. Harder’s book recollects his experience in the Hulk Hogan sex tape case, work for other celebrities (George Clooney, Reese Witherspoon…), and, most especially, offers a scathing if rather elementary assessment of “a media establishment that, as a whole, is suffering from a silent, creeping cancer.” In describing this “fake news,” it’s clear that Harder has been influenced by his most famous client these days — Donald Trump.
Although the book contains few surprises for those who have followed his career from a modestly successful Beverly Hills entertainment litigator to someone amusing the legal predilections of right wing celebrities (e.g. he’s recently filed a defamation case for MyPillow’s Mike Lindell over a tabloid story about a Jane Krakowski romance), it does contain one jaw-dropper: “In 2018, I was honored to be asked by the Time’s Up Foundation to take a case to the U.S. Supreme Court on behalf of one of Bill Cosby’s accusers,” he writes.
That would mean that mere months after representing Harvey Weinstein when the movie mogul unsuccessfully attempted to squelch a breakthrough Oct. 2017 report in The New York Times about his sexual misconduct, Harder was getting a client referral from the very legal foundation that had subsequently become central to the #MeToo movement. While Harder’s time with Weinstein was brief and he’d no doubt like to disassociate himself from the disgraced figure (Weinstein’s name doesn’t come up in Gawker Slayer and Harder is currently suing Weinstein for unpaid legal bills), it still raises questions for Time’s Up.
Putting aside Harder’s role for a moment, there’s the nature of that petition to the Supreme Court. The case was brought by Kathrine McKee, one of the individuals who attempted to sue Cosby for defamation over denials of sexual abuse. She couldn't prevail because a court deemed her to be a public figure who couldn't demonstrate actual malice. Her petition asked the justices to consider whether someone becomes a public figure merely by voicing an accusation of being victimized. If so, such individual can only win a defamation suit by showing the speaker acted with actual malice (knowledge of falsity or reckless disregard of the truth). If not, the individual can win under the lesser standard of showing the speaker's negligence (failure to take proper care in ensuring the truth of a statement). The Supreme Court denied review, but what got the headlines in Feb. 2019 was a concurring statement from Clarence Thomas calling for a re-examination of the actual malice standard under defamation law. In Thomas' view, there was nothing about the First Amendment that separated public figures from private figures.
Had other justices taken up the McKee case and joined Thomas here, it arguably could have been a disaster for the #MeToo movement. In Jan. 2020, Time’s Up told The New York Times that 33 of the 193 cases it was supporting at the time involved defending workers who had come forward about sexual harassment and were then sued for defamation. While some sexual abuse victims are like McKee and on the plaintiff's end of a defamation case, far more find themselves on the defendant's end. In light of this, is it wise to making libel suits easier? “I don’t think we should change defamation law,” says attorney Nancy Erika Smith, who represented Gretchen Carlson against Fox and would also represent several women in a defamation suit against Bill O’Reilly. “We don’t have to sacrifice the First Amendment along the way — or make it easier for harassers to threaten and further harass their victims.”
When The Hollywood Reporter asked Time's Up for comment, the organization sent a statement from Uma M. Iyer, spokesperson for the National Women’s Law Center. "At the TIME’S UP Legal Defense Fund, we believe that survivors deserve access to representation, resources, and the ability to tell their stories. It is with that in mind – and in response to a request for assistance – that we provided contact information for Charles Harder to Ms. McKee’s attorney," Iyer wrote. "The TIME’S UP Legal Defense Fund did not and does not have a relationship with Mr. Harder, nor did we provide any support – financial, consultative, or otherwise – for Ms. McKee’s case. Survivor justice – and the laws and culture that make room for that justice – is complicated, and we hope that conversations exploring this topic treat it with the nuance and care it, and survivors, deserve. We are proud of the work we have done to provide support to the hundreds and hundreds of survivors who are seeking justice.”
As for Harder, he stresses in an interview that he did not argue in the McKee petition for a change to the actual malice standard. In his book, though, he endorses Thomas’ view that the 1964 landmark case of New York Times Co. v. Sullivan departed from the original understanding of the First Amendment and that the actual malice standard for public figures should be revised.
“I’m not hired to bend the truth! I’m hired to make sure reporters get it right!” exclaims Harder during the course of an interview with THR. We’ll eventually patch things up, but mentions of Weinstein and Roger Ailes (another brief client) prompts debate about whether such topics are within the scope of his book, and some intervention by his PR handler. It seems that when the conversation departs even slightly from his ready-for-Fox News-at-8-p.m. take on the modern media, the interview gets tense. The specific question that set him off is this: “You write that you have ideas on how to improve American journalism and let me quote you, 'I would love nothing more than to put myself out of business.' On the other hand had the media taken your counsel, The New York Times would never published its expose about Harvey Weinstein sexual misconduct. Weinstein’s name doesn’t come up once in your book. Doesn’t any honest appraisal include an acknowledgment that powerful people sometimes hire you to bend the truth and cover up misdeeds?”
The question harkens back to that big verdict in the Gawker case five years ago and its aftermath. While the verdict was indeed a landmark one, there’s also a great what-if to explore.
As his book recounts, after the $140 million verdict, Gawker needed to put up a bond for the appeal and so the company made a rather extraordinary offer to Terry Bollea (aka Hulk Hogan). “If Gawker lost on appeal, Bollea would own all of its shares,” Harder writes. “If Gawker won on appeal, it would be free of the judgment.” The plaintiff accepted this high-stakes proposal, but then Gawker’s lawyers asked the judge for a break and went the jury room. “My guess is they were talking by phone to Nick Denton, who was in New York,” surmises Harder. “After 30 minutes, Gawker’s team returned to the courtroom and told the judge they were withdrawing their offer.”
A few days later, Gawker filed for Chapter 11 bankruptcy and eventually sold assets to Univision.
“Honestly, I was hoping to argue the case in the United States Supreme Court because of the importance of the issues,” Harder tells THR. “I wanted the Supreme Court to draw a line in our favor. An adverse ruling that they were protected by the First Amendment would have been travesty for privacy.”
While the Supreme Court doesn’t accept many cases, this one held promise on the appellate level. The Gawker case could have become a natural follow-up to the high court’s 2001 opinion in Bartnicki v. Vopper where media defendants got a pass from violating a federal wiretap law because they had done nothing wrong in obtaining intercepted cell phone conversations. Media law observers were ready to watch Gawker’s argument at the next stage that the Hulk Hogan sex tape was procured through legitimate means, newsworthy and thus the end of the story under the First Amendment.
Had the Gawker case actually reached the Supreme Court (or even just the 11th Circuit), it’s not hard to imagine that Hollywood stars would have lined up in Harder’s corner as he fought for the sanctity of privacy. Just a few years before the Gawker verdict, as the lawyer reminisces in his book, Harder was helping lead a discussion at Jennifer Garner’s home about a new California law preventing paparazzi from getting too close to children. Among those in attendance were Matt Damon, Gwyneth Paltrow, Emily Blunt, Gwen Stefani, Megan Fox, Heidi Klum, Alyssa Milano, Rita Wilson and Sacha Baron Cohen. With drones in the air and biometric-collecting devices on the ground, and with reporters doing things like tweeting out health records, it's very likely that many Hollywood stars would take a firm stand for privacy in a seminal case before the Supreme Court. (OK, maybe not Borat. At least, hopefully not.) Harder could have been their hero.
Instead, Gawker declared bankruptcy in lieu of fighting the verdict on appeal, and Trump won the presidential election in part by telling voters that the country was cursed by fake news.
These developments arguably influenced the direction of Famed Attorney Charles Harder’s practice. Gifted the high profile from the Gawker verdict, he became a go-to lawyer for reputation management amid the rise of Trumpism and the dawn of the #MeToo movement. (Indeed, there’s a popular theory that holds that liberal resentment over Trump’s election helped fuel appetite to bring down sexual predators like Harvey Weinstein. An episode of The Good Fight even imagined the counterfactual scenario where Hillary Clinton prevails and #MeToo never gets off the ground.) The co-author of a 2011 treatise called Entertainment Law & Litigation leaned into his opportunities, earned new friends in high places, developed enough of a philosophy about the excesses of the media establishment to have fodder for an independently published book, but in the process, the guy who wrote Chapter 24 ("Representing the A-List") may have lost his seat at Jennifer Garner’s dining room table. Other attorneys in the Trump era carefully navigated the politics of representation, but this Hollywood lawyer didn't, and what's truly missing from Harder's book about his professional and personal adventures is some hard reflection about the adventuresome choices he's made.
That Time’s Up picked the very lawyer who once represented Weinstein sounds damning. But it also serves as a reminder of both pre- and post-Trump days, what could have been, and the interconnectedness and fluidity of both the media and legal spheres. According to multiple sources, Time’s Up (or more precisely the National Women’s Law Center) made the Charles Harder recommendation on the advice of the attorney for Sandra Bullock, who was once represented by Harder and has made a generous donation to Time’s Up. Harder’s role for Weinstein was overlooked at the time.
Gawker Slayer: The Professional and Personal Adventures of Famed Attorney Charles Harder is available for pre-order here.