As the Hulk v. Gawker trial, the one that should have never been, winds toward a verdict, the New York Times’ Room for Debate goes two against one (you could have asked me, Susan. I would have helped) on the question of whether a jury should decide what’s “newsworthy.” After all, should it be left to elitist editors of media to decide? Shouldn’t stories be put to public vote?

Wait a sec. If it was left to consensus to decide, wouldn’t the Times headline above the fold every day be about Kim Kardashian?  And yet, the debate provides more serious, more academic views.  Tulane lawprof Amy Gajda juxtaposes truth with the emotional pain of disclosure, and comes up with the “dignity test.”

Only in those cases in which a truthful disclosure degrades the human dignity of a news subject by intruding in traditionally private matters such as sex, nudity and sensitive medical information would the “journalism” not be considered newsworthy. Even then, the plaintiff would prevail only if the injury to dignity clearly outweighed the public value of the disclosure.

The only problem is that “dignity” is purely subjective.  And trading off true but undignified has nothing to do with newsworthy. It has to do with personal sensibilities.  Anthony Weiner’s dick pics were definitely undignified, and certainly newsworthy. But the bottom line of this vagary of dignity wrapped in a pretty pink bow of feelings is that it doesn’t answer the only question asked: who gets to decide?

Minnesota journalism prof Jane Kirtley points out the obvious.

Although Gawker may not be the ideal gatekeeper, its web traffic attests to a substantial audience eager to consume what it offers. But do those millions of clicks mean that Gawker’s sensational postings are a matter of legitimate public interest under the law, or merely that they are interesting to the public?

What is the distinction between things that are “merely” interesting to the public and of “legitimate public interest”?  In the context of civil actions, the law protects speech that is “a subject of general interest and of value and concern to the public.” If a story gets millions of clicks, guess what? That “merely” interesting is exactly what gets protected, because the public decides what it wants to know, and scholars don’t get to sniff at the public’s pathetic choices.

Phrases like “legitimate public concern,” which sound pretty official and lead academics to such other officious-sounding notions like:

But because the First Amendment requires balancing competing interests, juries must also decide whether the information is a matter of legitimate public concern – newsworthy, for short.

Except this isn’t the law. The First Amendment doesn’t require balancing competing interests. It may sound good to the unwary, but it’s wrong. True information doesn’t require a “scholar” to stamp it “legitimate” before the media can publish it. If it doesn’t fall into a First Amendment exception, then it has to pass strict scrutiny, and there is no generic exception for “privacy” from the media. You would hope someone who teaches journalism would know this.

Yet, Kirtley is the best the Times can offer for the argument that editorial decisions, what is sufficiently newsworthy to warrant publication, should be left to the discretion of whomever is doing the publishing.  So she ultimately comes to a conclusion:

But Hulk Hogan’s case is not really about privacy. He gave up his privacy when he decided to talk about the video in interviews with TMZ and Howard Stern. What he really wants is the right to control reporting about him. That’s every public figure’s dream.

It should be every citizen’s nightmare.

True, but fact-bound and hardly doctrinal. Left to Kirtley, Gawker wins, but every editorial decision that comes too close to the edge would go to trial and be left to the vicissitudes of the  a dozen locals? Nothing chilling the free press there, right?

Finally, Dan Solove, from whom I learned all about privacy on the internets, gets his say.

Gawker’s posting of the Hulk Hogan sex video is not speech that the First Amendment right to free speech does or should protect. Sex videos, nude photos and revenge porn – even of famous people – are not newsworthy. They are not of legitimate public concern.

Wait, what?  How did “revenge porn” get in there?  What the hell are you talking about?

In a series of cases, the U.S. Supreme Court has held that the First Amendment provides the greatest protection to speech of legitimate public concern. A sex video doesn’t contribute to public debate or to the development of ideas. The First Amendment doesn’t protect speech out of a desire to satisfy morbid curiosity or prurient interest.

Oh, you are a tricky one, Dan.  It’s true that the Supreme Court, in its rationale, tends to note that the First Amendment “provides the greatest protection” to valued speech, like political speech. But Dan uses the affirmative to prove the negative. Very tricky. The Supreme bolster their rationales when it comes to political speech by including the rhetoric that it deserves the “greatest protection.” What does not mean, however, and there is no Supreme Court opinion that says so, is that speech that doesn’t fall within an exception is unprotected because it’s not sufficiently “valuable.”

Some commentators argue that judges or juries should not second guess the editorial decisions of the news media. But the media is so diverse these days that there are few, if any, ethical rules that all in the media follow. For some media entities, what sells is what is fit to print.

Ethics? This is a tacit leap from law to philosophy. Tricky again, Dan. We can debate the philosophical question of whether this is too icky, too valueless, to be newsworthy, but this is law. In the absence of an ethics rule embodied by law, it’s a symposium question, but it’s not a legal one.

But then, there’s the motive question, “what sells.”

The First Amendment doesn’t protect free speech because it is a source of profit. It protects free speech because it is essential to freedom and democracy.

Is there no end to your trickiness? Again, true, yet completely misleading because of your artful phrasing.  And not just a wee bit ironic, given that you say so in the New York Times, which would cease to exist if it couldn’t turn a profit. No, the First Amendment does not protect speech because it’s a source of profit, but it doesn’t preclude speech because it’s a source of profit either. I see what you did there.

Another justification for free speech is that it is essential for the pursuit of truth. But not all truth has the same value. There’s a true answer to the number of paperclips I have in my office, but the value of that truth is low. If there are “truths” to be discerned from the Hulk Hogan sex video, their societal value has yet to be discovered.

Societal value is a curious thing. What’s considered worth knowing in a lawprof’s office, the one filled with paperclips, as opposed to the kitchen of a doublewide, can differ. You don’t care? You’re not interested in knowing about Hulk Hogan? Fair enough. I’m not either. But then, I don’t think editorial decisions should be based on stuff Scott finds valuable. Why does Dan get to decide for the country?

There are few concepts scarier than a coterie of academics who feel they’re entitled to decide what speech is valuable for the rest of us. Nothing personal, Dan, but nobody really cares whether you think a sex tape is too icky for your tastes. Nobody cares whether I think so either. Everybody gets to make their own decision based on their ick factor, of their personal definition of dignity, whatever the hell that’s supposed to mean.

To the question posed by Room for Debate, what is a matter of “legitimate public interest” is whatever the jury decides. No, not the petit jury. Nor the petty jury. But those hundreds of millions of “jurors” who click because they want to know, because they value it even if you don’t.  If it’s not newsworthy, they won’t read it. And if they do, then you academics got it totally wrong. As for Gawker, the real jury has already spoken.

Update:  The verdict is in, and the jury awarded Terry Bollea (Hulk Hogan) $115 million in compensatory damages, and will return next week to determine if, and how much, to award in punitive damages. There is nothing surprising about this, as it’s what was anticipated out of Bollea’s hometown state jury despite two federal judges having concluded that he could not prevail because of the First Amendment.

The verdict will, in all likelihood, be reversed, provided Gawker can post bond for the judgment on appeal.  In the interim, news of this will confirm those who want to limit freedom of speech and press to those things they find valuable and dignified. This case won’t change the law, but it will do enormous damage by validate ignorance and the zeal to censor.