Last week, a jury in Florida decided to award Hulk Hogan $115 million in his lawsuit against Gawker Media, after Nick Denton’s website published a video showing Hogan having sex with the now ex-wife of radio personality Bubba the Love Sponge Clem (the video was filmed by Bubba the Love Sponge from a video camera above his bed. BtLS provided Gawker with the video).
I have not seen this video, because I have no desire to watch Hulk Hogan have sex with anyone, much less the wife of a dude who was standing by and rooting Hogan on while he fucked his wife. My concern is not the video itself, but what the lawsuit might mean for the future of journalism.
In short, probably nothing. Hulk Hogan sued Gawker in the grounds that the website invaded his privacy by posting the video, despite the fact that Hulk Hogan himself talked extensively about the video with TMZ and Howard Stern. In other words, Hogan wasn’t trying to protect his privacy; he was trying to control it.
The issue in this case came down to an issue of newsworthiness. Where it concerns public figures, a media outlet is allowed to publish anything it wants, under the First Amendment, so long as it is truthful and it is “newsworthy.” What is newsworthy? Anything that is a matter of legitimate public concern. Was the video of Hogan having sex of legitimate public concern? Well, that’s something that really should be left to the media and not a jury to decide.
Why? Because a jury will make a decision not based on newsworthiness, but on their own view of societal norms. Trying this case in state court in St. Petersburg, Florida, where Gawker’s sense of humor is both unfamiliar and reviled was a slam dunk: All Hogan’s lawyers had to do was create sympathy for Hulk Hogan and vilify Gawker. It’s not hard to vilify Gawker. Gawker didn’t help itself, of course, by suggesting that they’d only draw a line for sex tapes for children under four-years-old. In the end, a jury is going to arrive at a decision on the issue of newsworthiness based on an emotional response, and not a legal one.
The truth is, most of the people reading this website wouldn’t consider Hogan’s sex tape newsworthy, either. But the post generated millions of clicks, so it must be newsworthy, right? That’s a fuzzy issue, too. There’s a fine line between a matter of legitimate public interest and simply being interesting to the public.
However, that’s something the media should be deciding and not a jury. Gawker decided it was newsworthy, and though they are a shady website with questionable journalistic ethics, their right to decide what is newsworthy should not be taken away, not because they were right to publish the sex tape, but because if we let juries decide, we’re heading down a dangerous path where an outlet like the NYTimes would be prohibited from publishing details on a presidential candidate’s extramarital affairs or, to take it a step further, Mother Jones wouldn’t be able to publish a remark like the one Mitt Romney made about the 47 percent. That, too, was a private comment, and it’s not hard to imagine a jury made up of the other 53 percent in Utah deciding that it wasn’t newsworthy based on their own values.
The truth is, the Hulk Hogan case was thrown out (and laughed at) in federal court, while Florida’s Second District Court of Appeal already ruled it was newsworthy in overturning a lower court injunction preventing Gawker from continuing to run the video — and for good reason — Hogan has consistently made an issue of his sex life. He put it out there. Gawker was merely commenting on it by posting a sexually explicit video given to them by a third party. Hogan gave up his right to privacy in his sex life by talking openly about it. This is also hugely different from the Erin Andrews case, where her sex life was not at issue, and she was filmed illegally and without her consent.
Nevertheless, the fact that it was shitty of Gawker to post Hogan’s sex tape is why the jury returned a verdict against Gawker. However, the $115 million in damages — which would put Gawker out of business — is not likely to stand. Either the amount will be substantially reduced and Gawker will settle (in which case the lower court’s ruling has no precedential value) or an appellate court will overturn the ruling or limit it narrowly to cases involving sex tapes.
In other words, the future of journalism is not at stake, except potentially for media outlets that specialize in publishing sex tapes without consent, and Gawker will almost certainly not go out of business, because it will probably never have to pay $115 million in damages.