![]() Some view such litigation support as a powerful threat to freedom of the press others express concern, but do not view it as a major danger yet and still others affirmatively applaud it as an instance of the tables being turned against an increasingly unaccountable and sensationalist media undeserving of special constitutional treatment. These third-party litigation funding developments in the press context have led to public debate. Wealthy private donors, seeking to shut down outlets they dislike, are inaugurating a modern wave of censorship-by-litigation. An important new salvo in that war is third-party litigation funding supporting proxy plaintiffs’ tort actions against the press. In that spirit, this Article proposes a realistic four-pronged strategy: (1) judicial discretion to order disclosure of third-party funding in discovery (2) waiver or reduction of appeal bonds in third-party-funded media cases where such bonds would effectively make verdicts against the media unappealable (3) development of counter-funding strategies and support of third-party-funding watchdogs and (4) consideration of a litigation misuse claim against third-party funders in cases where their support is designed to shutter press outlets.įrom Donald Trump’s vituperative threats against the press during the 2016 presidential election, to judicial distaste for modern journalistic practices, to declining public esteem for a self-sabotaging press, news organizations today are facing a war against the media. A richer, more multivalent approach is called for. Yet existing champerty and maintenance jurisprudence cannot adequately address the problem. Such funding can play a valuable role by ensuring that even penurious individuals can vindicate viable claims against media organizations. It is neither realistic nor constitutionally palatable to prohibit third-party funding in media cases. Still, contrary to the assertions of both funders and their opponents, finding an appropriate response to these developments is far from easy under current law. ![]() It does so whether the strategy is death-by-a-thousand-litigations or titanic, bankruptcy-inducing damage verdicts. ![]() And the current climate of press failures, institutional disaggregation, decreasing accountability journalism, and declining public trust-the very vulnerability of the press today-significantly amplifies the chilling impact of strategic third-party funding. The use of strategic litigation to shutter media outlets constitutes a major threat to the expressive order. ![]() This Article identifies a new front in the current war against the media-one in which billionaire private actors clandestinely fund other people’s lawsuits in an attempt to censor press entities. Mark Kuivila deserves thanks for able research assistance. I am grateful to Ric Bascuas, Caroline Bradley, Sergio Campos, Michele DeStefano, Michael Froomkin, Mickey Graham, Patrick Gudridge, Dennis Lynch, Anne Louise Oates, Andres Sawicki, Robin Schard, Steve Schnably, Ralph Shalom, Sylvia Shapiro, and Irwin Stotzky for illuminating conversations about this Article. *Professor of Law, University of Miami School of Law. ![]()
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