Hulk v. Gawker: The Chill From Tampa

Within minutes of the verdict being announced, an astounding $115,000,000 awarded Hulk Hogan in compensatory damages, with the jury returning to consider punitive damages, the reactions began. On the one side, there was the Schadenfreude, coming from surprising sources. On the other, the usual assortment of non-lawyer (and some lawyer) stupidity about the First Amendment.

The First Amendment isn’t unlimited.
You can’t yell fire in a crowded theater.
The First Amendment doesn’t protect revenge porn.
There’s a constitutional right to privacy.
Gawker sucks and it’s hypocritical, so who cares?

The first fear was that the verdict, indeed the very fact that there was a trial, reinforces the general belief that free speech and press is only as much of a right as people’s sensibilities feel it should be. Like something? Then it should be free speech. Think it’s icky? Then it’s not free speech.

The non-legal consensus these days is that each of us gets to be censor of the universe, deciding the value of speech for everyone else. The irrationality of such a scheme never seems to be recognized; if I think your speech is too, like really, just, you know, then I get to shut you up, because, literally. That’s paraphrasing law professors.

These are smart people. I submit that they know damn well what’s wrong with their argument, but also think you’re too stupid to realize the fallacy, so they can achieve their political goal of silencing speech they find distasteful, undignified, of low value, while manipulating the clueless. The clueless would be the rest of us.  Given what many expressed on twitter, they have their finger on the pulse of society.

But what’s the big deal? What’s so terrible about a ridiculously huge judgment against a ridiculously hated website like Gawker.  The question was posed to some academics (insufferably described in the headline as “legal experts”), who didn’t seem too concerned.

“I think the damages are crazy, but I just don’t see this as a terrible blow to the First Amendment,” said George Freeman, the executive director of the Media Law Resource Center, a trade association of law firms and media companies, including Gawker Media. Mr. Freeman is a former assistant general counsel of The New York Times Company.

“This was an unusual and extremely private matter,” Mr. Freeman said. If Friday’s decision stands, he said, “that could be bad for the future of sex tapes, but I’m not sure it would be a threat to anything else.”

And Erwin Chemerinsky, ultra-progressive dean of UC, Irvine law school, said:

“I think this case establishes a very limited proposition: It is an invasion of privacy to make publicly available a tape of a person having sex without that person’s consent,” he said. “I don’t think it goes any further than that and I do not see a First Amendment basis for claiming that there is a right to do this.”

Putting aside Chemerinsky’s bizarre suggestion that a local Tampa trial verdict “establishesanything, this sort of myopic reaction is shocking.  If this could somehow be compartmentalized to just Gawker, just a sex tape of some bald clown shtupping his best friend’s wife, no one would care and we could all laugh about it.

That’s not the case. First, there’s the public confusion. People have always been utterly clueless about First Amendment protections, imposing their feelings over its constitutional protections. That’s bad enough, and a consistent source of annoyance and amusement. Of course, that it’s under constant siege to accommodate ulterior agendas, like revenge porn, makes sowing confusion acceptable to faux scholars who believe they serve a higher purpose than intellectual integrity.

But that’s not the most serious problem this verdict creates.  What this trial put at risk is the determination of what constitutes “newsworthiness,” what is sufficiently worthy of protection under the free press clause of the First Amendment. On the one hand, it’s asked, “why should the editorial decision of what is sufficiently newsworthy to be entitled to protection be left to the media?”  On the other, the question is, “what happens if newsworthiness is left to the sensibilities of 12 nice people from Tampa?”

There is good reason to question why media gets to decide what constitutes newsworthiness. They’re not gods. They have no magic. There are vague journalistic ethics floating around, but they aren’t laws, and certainly aren’t hard and fast rules to which all media adheres. What gives them the right to decide?

The alternative is that newsworthiness is left to Ma and Pa Kettle to decide.  While journalists have no magic, the Kettles have none either. So are we better off constraining your right to know by their feelings of ickiness? Would you really want disclosure of the Pentagon Papers decided by whether it offended some folks in Tampa that Daniel Ellsberg stole them? Should the scope of a free press be determined by the guts of some yokels from the hinterlands?

It’s not just that the question of First Amendment newsworthiness was, in fact, decided by a petit jury, but that it went to trial at all. This is called the “chilling effect,” that editorial decisions that are close to the edge of offense, because they involve a video of a president having what might be called sex with an intern in a blue dress, for example, are censored out of concern that the press could be put on trial, put to the expense and risk of a crippling damage award, and left to the whims of a dozen people whose grasp of newsworthiness is based on whether to watch Laugh-In or Hee Haw.

Faced with the potential of there being someplace in America that a jury could be empaneled that would take offense to the editorial determination that something is newsworthy, decisions will be influenced. News will go unreported. Pictures will get buried. Information will never be revealed. You (and I) won’t know.  And we won’t know what we won’t know.

That none of this made it into the concerns expressed by scholars, by “legal experts,” by the New York Friggin’ Times, tells us much of what’s very wrong with how our grasp of free speech and press is under assault in America.  Hate Gawker all you want. Be utterly disgusted at the idea of watching Hulk Hogan do his neighbor’s wife. But when Snowden’s papers are deep-sixed out of fear of a gazillion dollar verdict in Iowa, you will have no one to blame but yourself. Was the Schadenfreude worth it?

40 comments on “Hulk v. Gawker: The Chill From Tampa

  1. Ross

    I agree, bad verdict, but I’ll confess to feeling schadenfreude as well. Gawker goes above and beyond the call of duty in being vile, they actually call for the arrest for certain types of wrong-speak. See their post on arresting climate-change “denialists”, for example.

    1. SHG Post author

      It takes effort to move beyond Gawker, or a sex tape, to understand implications. Almost all bad law started because of such problems (see, e.g., civil forfeiture, sex offender registries, three strikes, zero tolerance, mandatory minimums), and yet people keep asking how it’s possible we got to such bad places. This is how.

    1. SHG Post author

      You’re probably right. It wasn’t important to me, so I didn’t bother to check the size of the jury.

  2. ArthurFrDent

    What remedy would Jane the Schoolboard Prez have in same situation with the local paper, if they burned her life down because she was a swinger?

    Either party in this case is far away, and while I appreciate the implications, maybe I’m too limited in imagination to apply them all the way down to a normal level.

    I guess, what shoulda been done instead?

    1. SHG Post author

      Should Jane be immune from scrutiny? Better yet, if there is a scenario where emotion trumps reason, should we eliminate constitutional rights because, “oh, but what about poor Jane?” We can incentivize media to not push too far by not reading the Gawkers of the internet if we find their coverage inappropriate, but undermine constitutional rights because Jane’s shame might cross our line?

  3. Conner Leo

    The law of feels seems more and more like the snake in the grass of law. You don’t care about it till someone you know gets bit. I still remember how hard it was to keep objective during Westboro Baptist Church vs the court of public opinion a few years back.

    1. SHG Post author

      If there’s a thing worth hating more than Gawker, it’s Westboro Baptist Church. And yet, either it gets rights or we don’t either.

  4. George

    This reasoning actually makes me angry. You decry the ‘magic’ of one party or another declaring something newsworthy or not, but would still hand that magic wand to the press as a get out of jail free card.

    I doubt there would be disagreement that even celebrities or public figures should have some privacy. I cannot imagine a more hellish existence than one where every personal moment or broken taboo can be used as fodder for WORLD-WIDE humiliation and ruined reputation. The ‘newsworthy’ standard seems to exist to determine what circumstances allow what intrusion. This is, by necessity, a subjective judgement call and is one I would prefer ‘ma and pa’ to decide rather than tabloid journalists.

    Your solution is for the public to just not watch, but that does not stop the intrusion because there are no negative consequences to deter intrusion. It would just encourage ‘throwing everything to the wall and seeing what sticks’. That’s a poor, unrealistic, and frankly insulting solution.

    1. SHG Post author

      The First Amendment right is a protection of free speech and free press. The press gets that right because the Constitution gives it to the press, and precludes government, whether directly or though its proxy in the court, to silence the press. Newsworthiness is certainly a subjective call. You would be fine with Ma and Pa deciding who and what gets censored. A lot of people like censorship these days. That’s why the they included free speech and press in the Constitition, because of fear of people like you who prefer censorship.

      But you’ve misunderstood the point about not watching. The media doesn’t publish things that no one is interested in. Don’t watch, and it gets no airtime or space. not because there’s a prohibition but because the media doesn’t publish things that no one is interested in. And that may be a “frankly insulting” solution, but it’s not a solution. The answer lies in the Constitution, which provides that the press wins, not Ma and Pa, nor your hellish existence. That’s offered to help you make better sense of it. Clearly, it was unsuccessful.

      1. George

        The media publishes gossip, propaganda, as well as ‘shocking’ click-bait. That should not be confused with something being newsworthy even if they get clicks.

        The First Amendment is a protection to free press, but you did not address whether celebrities (and, to a lesser extent, officials) have any area of their lives that can be determined as ‘private’. If they do, who should determine whether those areas are ‘newsworthy’? Ma and Pa are the people these stories are being marketed to as ‘news’, and I believe they are and should be ultimately the arbiter either way (even according to your standard of “look or don’t look”) instead of those who stand to benefit from the marketing of the stories as ‘news’. Either we trust in the jury system or we do not, and if people decide in favor of more censorship then thems really the breaks I guess. The Constitution ultimately is meant to serve the people’s interest, after all, not the media’s

        I agree and support the Constitutionally protected free press, but do not believe it is unlimited freedom. A camera in the toilet should be reasonably out of bounds, and this fact should not only be determined after we see whether or not it gets the clicks.

          1. Myles

            What makes this terribly sad is that I’m sure George means well, and he’s obviously sufficiently interested to read SJ and leave a comment, and yet he is so utterly clueless about the law that it would be impossible to get him to understand why almost everything he writes in this comment is totally wrong.

            You keep arguing against making people stupider. For well intended people like George, it’s too late. There’s no hope.

            1. SHG Post author

              Sometimes, it’s a lost cause. The legal concepts in this post are way over the head of some laypeople (and lawyers as well). I can’t help that.

            2. George

              My reply was couched in “shoulds” since that may not be how the law is actually applied. However, the article was qualified in a similar way since obviously the press doesn’t “always win”. I took this as an argument involving ideals more than actual application.

              Even Constitutional protections are subject to limits determined by juries, and press limited only to what the audience will look at edges from liberal freedom to anarchist freedom imo

            3. SHG Post author

              Without getting into everything you’ve said that’s wrong (which is pretty much everything you’ve said), no, constitutional protections are not “subject to limits determined by juries.” Juries find facts. Judges decide law. The Constitution is law. Juries have nothing to do with it. Of this, there is no opinion involved. Sorry.

        1. delurking

          George, why are the Mas and Pas on the jury better arbiters of “newsworthiness” than the Mas and Pas who choose to watch the video?

        2. andrews

          A camera in the toilet should be reasonably out of bounds, and this fact should not only be determined after we see whether or not it gets the clicks.

          Ignoring and not quoting the Neville Chamberlain approach to the First Amendment, let me explain where you go wrong.

          A camera in the toilet, or in the bedroom, is certainly out of bounds. It is an invasion of privacy. The person who put it there is probably liable for public disclosure of private facts.

          I see no bar to a claim against the person who put the camera there and who sold the resulting footage. He invaded the privacy of the victim. He may run afoul of wiretap laws, depending on his state, but I expect that most states would allow for civil liability for public disclosure of private facts. This would be true even if it was the governor’s bedroom where the camera was planted, and the film revealed that cute little lobbyist aide from Healthcare Corp of America.

          The next step is a problem. The illicit movie maker sells, gives, or slides the film under the door at night such that it winds up in the hands of Gawker. The movie maker is liable. Gawker has come across information and gets to decide if they want to publish it.

          Gawker did not plant the camera or otherwise commit the tortious act. They received the fruits of it, no doubt, but they are in about the same position as the New York Times was.

          I do not want to make the Times, or Gawker, subject to the judgment of six nice people down in Tampa. Even if Tampa were more than one county removed from Polki County, I would not trust the six nice people. It is not the six people, it is the chilling effect: should the NY Times, or the DeLand Beacon, or even Gawker, have to worry that the editorial decision will be subject to second guessing.

          Remember, too, that this is a tort claim. If Gawker wins, they do so at great cost to themselves. See Arcambel v. Wiseman, 3 U.S. 306 (1796).

  5. JimEd

    How many times will this ruling/decision/whatever be improperly cited? The mind boggles.

    “but in the famous gawker vs hulkster case he won 116 million. so your argument is mute (sic))

  6. Ross

    Some of this is brought to us by the same types of people who think that CDL’s who defend child pornography suspects (or murderers, or any other less than warm and fuzzy defendant) are evil and should be run out of town on a rail. They don’t care about the Constitution at all, just their own feelz.

  7. Francois

    ”no, constitutional protections are not “subject to limits determined by juries.”

    In cases of obscenity, aren’t the limits effectively determined by the jury? I think to the general public this kind of journalistic behavior is seen as a form of obscenity and they want the value of these articles to be decided in a similar way. It’s like ‘newsworthyness’ is the new ‘pornography’. This is of course very problematic from a practical standpoint.

    1. SHG Post author

      Obscenity isn’t a catchall for icky stuff, even though many (who don’t understand free speech) think it kinda sorta should be. But they conflate most of the first amendment in that way. If this tape wouldn’t be obscene otherwise (and it’s clearly not), then it fails to be obscene because people want to find an excuse to justify why it’s not protected.

      That’s exactly the fear: protected speech under creepy circumstances becomes unprotected, not for any doctrinal reason but people just feel that way.

      1. Bob

        I’d be careful, Scott. I think we all know that Simple Justice appeals only to the prurient interest.

      2. Patrick Maupin

        > protected speech under creepy circumstances becomes unprotected

        The question may be how far down the slope we already are rather than whether we are on it or not. If laws against videotaping sex in a private bedroom without consent are deemed constitutional, then it might not take many changes to the verbiage of the decision in New York v Ferber to put Gawker in a world of hurt.

        1. SHG Post author

          I’m not worried about Ferber or the Supremes. I’m worried about local judges in every two-bit jurisdiction in the country deciding that they have the power to ignore the First Amendment, refuse to dismiss, and put media through a trial wherever some local feels offended.

          1. Patrick Maupin

            You’d accuse local judges of doing that? You might as well accuse them of wantonly piercing corporate veils and imposing judgments against owners and employees.

            1. SHG Post author

              Not all local judges, but it only takes one who decides to ignore her job as First Amendment gatekeeper and forces a case like this to trial and verdict to wreak havoc.

  8. John Rew

    I must admit to a somewhat sadistic feeling of delight at hearing the damage done to Gawker and it’s subsidiaries but objectively the figure does seem quite extreme. I imagine it was calculated with suspected loss of earnings in mind and not just feels although I can’t imagine revealing that Hulk Hogan was banging his best mates wife would have a hugely negative effect on his public persona. Perhaps if Gawker had just left it at that and merely reported on the existence of the sex tape they wouldn’t be in this mess. Showing the sex tape has brought them down to the level of those who leak nude pictures of female Stars which of course is seen widely as a criminal act. Whether it is or not is something you are more familiar with than me. Those who do these things have usually the good sense to ensure they remain anonymous. A lot of this would depend on how the tape was made in the first place because if as hulk hogan asserts he was not aware of the filming it is even worse than leaking private pictures. There must be a line somewhere as there was in the infamous “news of the world” case. There has to be consequences for receiving private information that has been obtained in an inappropriate manner. Perhaps they went a little too far with this one and needed to be reminded of the responsibility that comes with their position. I concede that it could have been done with a lower figure.

    1. SHG Post author

      No one thinks Gawker deserves an award for good taste or judgment. Then again, Gideon didn’t deserve an award for good behavior. But if you stop focusing on sex tape detail and think stolen papers instead, the same feelings apply. So no Pentagon Papers, no Snowden, no Wikileaks. See how that works?

  9. Barnassey

    @ the time terry bollea was fired from the WWE his brand was worth about 28 million, he had an income of about 2-3 million a year alone from merchandising rights as well as being part of the WWE. The racist comments came from audio of the sex tape AFTER it was pulled down by order of the court. Gawker defied a court order to take the tape down while at the same time condemned the Fappening. Combined with the incredibly stupid statements made during the hearing they sunk themselves. Also in FL in oreder to appeal they have to post about 50 million to do so. Since they dont have insurance this will be VERY hard to do.

    1. SHG Post author

      This is the sort of focus on lurid details that obscures the doctrinal legal issue. In other words, this is what makes people stupider. Also, you neglected to mention that the order to take down the video (which Gawker refused to do) was reversed on appeal because the court held that Hulk had failed to demonstrate a likelihood of prevailing. That’s the part of the backstory that is of legal consequence.

        1. SHG Post author

          No need to apologize, but if you’re going to raise an issue of law, it’s always best to Shepardize. (It’s a lawyer joke).

  10. OEH

    I’m listening to Nancy Grace right now say she doesn’t think the verdict is unfair because Gawker had plenty of opportunity to take it down before they sued…

  11. Ash

    > because the media doesn’t publish things that no one is interested in.

    Your logical fallacies are known as appeal to the efficient market and assumption of homo economicus.

    Just as you see the slippery slope this decision portends to the characteristic of newsworthiness as well as the chilling effects, I see the slippery slope of your logical fallacies, in which everything must be publishable because someone will publish it and someone will buy it.

    Your belief the only way to battle the slippery slope and the chilling effects is to trust the market getting the decision right in the long run is similar to thinking that the public has no constitutional reason to fear the privacy invasion of cameras everywhere in public tracked in databases and linked by computers with facial recognition, or automatic license plate recognition, because I mean, what could possibly go wrong, and if something does, we can all just vote the jerks out of office.

    I would never have been any sort of competent lawyer, which is why I can say it seems odd to chastise Chemerinsky for claiming this sets a precedent of any sort while then immediately going on to explain it sets no precedent, except you worry it will.

    It’s possible the only defense against having six nice people from Tampa just newsworthiness, and the chilling effects is to rely on an efficient market where publishers only publish what is interesting and people only buy the right things. But jeez, if so, just come out and acknowledge that is no defense at all and demand that everything be publishable because that’s what the first amendment says.

    1. SHG Post author

      I realize that understanding this post requires a relatively sophisticated grasp of First Amendment law. This has already been addressed in the post and comments. If you haven’t gotten it by now, there’s nothing I can do to help.

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