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 “establishes” anything, 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?