The jury came down hard on gossip blog Gawker slamming them with a $115 million verdict in the case filed by Hulk Hogan over their publication of Hogan’s sex tape. There has been a lot of overstated and overheated talk of possible ramifications in the event of a major Hogan victory.
Lets be clear from the outset, when the First Amendment was written, freedom of the press referred to print media and the words they use. When we have cases such as Gawker posting video of a private sexual act of a celebrity, there is a gray area. No doubt about it. Gawker attorney Seth Berlin told the NY Times that the site is defending their right to join an ongoing conversation about a celebrity, when others are talking about it, including the celebrity himself.
Except that we aren’t talking about having a conversation about a public figure’s private life but about whether showing a clip of said public figure having sex, without his permission is an invasion of privacy so great that it overcomes any First Amendment argument. Gawker argues that because Hogan made his sex life an issue up for public discussion, even the tape is newsworthy. It is true that it likely makes covering Hogan’s sex life “newsworthy” but to say that extends to showing the sex tape itself is to take the argument to a new level.
Erwin Chemerinsky, Dean of UC Irvine’s law school and constitutional law guru, posed the critical question in a piece in the L.A. Times. Under the law, a person can recover damages from the media “for publicly disclosing private information if the revelation would be offensive to a reasonable person and if the information is not ‘newsworthy.'” So should a jury determine that something is newsworthy “according to the public’s actual interest in the material?” If that was the case, he says, wouldn’t that make anything newsworthy if people wanted to view it? If this is the case, it would mean that the very fact that Gawker gained traffic from posting the video justifies them posting it in the first place. That’s a slippery slope that could obliterate privacy laws, and potentially obscenity laws in the name of freedom of the press.
But let’s calm down. This case isn’t nearly that complicated. Theorize all you want about what underlying principles may be at play, but in reality, this trial is, and has always been, about a sex tape. If the jury’s verdict is upheld on appeal, the only real precedent will be that it’s not necessarily okay to post someone’s sex tape on the internet without permission. . . even a celebrity. Sex is simply in its own universe when it comes to this sort of thing. Our society still believes that what happens behind closed doors should stay there, and the legal system is catching on to this, with roughly half the states in the country currently having revenge porn laws that criminalize the posting of sexual material on the internet without the subject’s consent. A federal law has been under consideration as well.
Lior Strahilevitz, a professor of law at the University of Chicago Law School, put it well when he spoke to The Guardian and compared this case to sex tape litigation involving Pamela Anderson. Strahilevitz said that with Anderson, “what the court said is that being a sex symbol in movies and TV shows doesn’t mean you’ve waived the right to privacy that you have with your lover when you’re not performing in public.”
And that’s really the main point here, isn’t it? This isn’t some precedent-setting, earth-shattering case with aftershocks that will reverberate throughout time, shaking the foundations of our press’s freedoms. It may be a somewhat close legal call but no matter what the outcome, it could have a chilling impact on one thing, publishing naked pictures or videos. That would be a chill we can all probably bundle up for.
