Last week, Gawker, after losing a $140 million lawsuit to former professional wrestler Hulk Hogan, decided to file for bankruptcy (though Gawker is considering a countersuit against suit backer Peter Thiel).

The problem I’ve had with this case is that there were really only two possible outcomes: either Gawker gets a slap on the wrist, which would essentially be a cost of doing business fine (given that most media companies have some sort of insurance), or Gawker gets the financial equivalent of the death penalty (which is what happened). There isn’t a way to provide some sort of proportional punishment as well as discourage future bad behavior. It’s all or nothing.

While Gawker has done some scummy things (the Hulk Hogan tape, airing a tape of someone getting raped, even though the victim opposed this), it also has done some very good journalism.

There are some companies that deserve(d) to die, such as Enron. That said, Arthur Andersen which also collapsed due to Enron’s criminality (‘scandal’ doesn’t seem appropriate) probably had a lot of honest accountants and other staff who didn’t deserve to lose their jobs.

While it looks like Gawker’s properties will be bought up, though that means they’ll be owned by some rich person and not independent, those outfits will survive in this case. But the all-or-nothing civil death penalty is a real problem, especially when a free press is involved, and I’m not sure how we solve this.