Hulk Hogan's $115 Million Win Against Gawker Raises Serious First Amendment Questions

from the the-appeal-should-be-interesting dept

Well, this isn't necessarily a huge surprise, but Friday afternoon a Florida jury sided with Hulk Hogan in his lawsuit against Gawker, awarding him a fairly astounding $115 million (he had asked for $100 million) for posting a short clip of a Hogan sex tape along with an article about it. We hadn't written about this case recently, as it was getting tons of press coverage elsewhere -- but when we discussed it three years ago, when a Florida court first issued an injunction against Gawker, we noted the serious First Amendment issues here. Hogan (real name: Terry Bollea) had originally sued in federal court where it was more or less laughed out of court, mostly on First Amendment grounds. However, he was able to try again in state court, where it's astounding that it even went to trial in the first place.

Given how the trial played out, the jury result wasn't much of a surprise. The judge limited Gawker's defense options, blocking a few key ones, and even the judge (during jury selection) had expressed opinions that appeared to be distasteful of internet celebrity media coverage. On top of that, much of Hogan's lawyers' case was built around making Gawker, its owner Nick Denton, and the reporter who wrote the article, AJ Daulerio, look as... obnoxious as possible. It highlighted their snarkiness and dismissive attitudes. But none of that is illegal. Being a jerk is still quite legal. But given all that, it seemed pretty obvious how the jury would rule. Hogan was made to look sympathetic and Gawker was made to look obnoxious and snarky.

But... the First Amendment remains. It's kind of insane, in the first place, that there even was a trial at all on the question of "how newsworthy" the tape was. Whether or not you or I think running the tape is appropriate, the fact remains that courts should never be determining if something is newsworthy. That's not the role of the courts, and that's part of the reason why the First Amendment is so clear in barring regulations that restrict freedom of expression or the freedom of the press. I've seen a bunch of people saying that this case isn't that big a deal because the only thing it really restricts is publishing sex tapes, but it goes beyond that in several ways. First of all, that kind of thinking is dangerous in its own right. It's the kind of thinking that wipes out the First Amendment because some people can come up with excuses for killing off just about any kind of content, as long as you say, "Well, that's okay, it's just shutting down content that is mean." The issue with the First Amendment and free expression is that the whole reason we have it is to protect content we don't like. Because someday someone's not going to like something you said either.

But, still, to me the key thing is simply having a court tell a newspaper what is or is not "newsworthy." As Scott Greenfield wrote in his post on the jury's decision:

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 guts of some yokels from the hinterlands?

Gawker, not surprisingly, has made it clear it will appeal, and it has a decent chance to succeed. Based on earlier rulings in this case, in which the higher courts have indicated they see Gawker's move protected by the First Amendment, Gawker is probably at least somewhat confident that the jury's award will get thrown out. I know that some activists had been pushing for Hogan to win, arguing that it would be a win for "privacy rights" -- but this is woefully shortsighted. Media organizations get threatened all the time with bogus threats of anything from defamation claims to publicity rights to copyright and more, over coverage that people dislike. Adding the possibility of huge fines for violating someone's privacy over reporting on stuff they'd prefer remain secret is going to put a serious burden on investigative reporting. It's going to lead to a lot of lawsuits where the real focus is on trying to silence negative coverage, rather than for any legitimate purpose. The chilling effects of this may be massive.

Even if you dislike Gawker (and I know some people do, quite a lot) and even if you dislike their snark -- and even if you are a strong believer in privacy, this ruling should be a major concern if you support free speech and the First Amendment.

Filed Under: first amendment, free speech, hulk hogan, journalism, newsworthy, reporting, sex tape
Companies: gawker

Gawker Defies Judge, Refuses To Take Down Post About Hulk Hogan Sex Tape Despite Court Order

from the first-amendment,-brother dept

Gawker has been in a legal fight with Hulk Hogan, who was upset that they posted a brief clip (about 1 minute out of 30 minutes) of a sex tape involving Hogan and Heather Clem, the wife of one of Hogan's friends. Hogan claims that he didn't know he was being filmed at the time. His initial lawsuit, for $100 million, had a huge number of questionable claims and a federal court ruled against Hogan pretty quickly, pointing out that Gawker was protected by the First Amendment. Hogan then tried strategy two, which was suing in state court in Florida under a particular state law. Somewhat amazingly, the judge in that case has now granting an injunction against Gawker's post, but made it so incredibly broad that it effectively demanded not just the takedown of the video, but the entire post, written by A.J. Daulerio (which was about the whole concept of celebrity sex tapes, rather than just about the Hulk Hogan video) and all of the comments on that post.

It's unfortunate when state courts seem to go out on a limb like this, and Gawker has decided that the ruling is so ridiculous that it's refusing to take down the post, though it did agree to take down the video clip (again, which was just a very small portion, which is why the federal judge had argued it was protected by fair use). In the Florida case, Hogan is claiming that the publication of the video was an invasion of privacy. Even if that's true -- and it seems like a stretch -- to the go even further and order the entire commentary be taken down as well is extreme and clearly beyond the First Amendment. Amazingly, the judge also determined that a preliminary injunction was appropriate without even looking at the video in question!

We publish all manner of stories here. Some are serious, some are frivolous, some are dumb. I am not going to make a case that the future of the Republic rises or falls on the ability of the general public to watch a video of Hulk Hogan fucking his friend's ex-wife. But the Constitution does unambiguously accord us the right to publish true things about public figures. And Campbell's order requiring us to take down not only a very brief, highly edited video excerpt from a 30-minute Hulk Hogan fucking session but also a lengthy written account from someone who had watched the entirety of that fucking session, is risible and contemptuous of centuries of First Amendment jurisprudence.

In the Gawker post, they demonstrate segments from the transcript where it appears the judge is quite unfamiliar with the basic concepts of freedom of speech, and the fact that it extends beyond what someone is verbally saying out loud. For example, she expresses confusion over what "free speech" issue there even is and asks Gawker's lawyer if it's the "speech" between Hogan and the woman he's having sex with, and then being confused when the lawyer points out he's talking about the written report about it.

The injunction really does seem to go against pretty much all First Amendment case law. Furthermore, on the question of comments from others, the ruling seems to completely ignore Section 230 of the CDA as well, which clearly says Gawker is not liable for those comments. While the subject matter here may be a bit crazy, the ruling is serious... and seriously problematic for those who believe in free speech.

Filed Under: hulk hogan
Companies: gawker

Hulk Hogan Says Calling People 'Brother' And Your Muscles 'Guns' Violates His Publicity Rights

from the oh-brother dept

Another day, another silly publicity rights claim. Apparently Hulk Hogan is suing a car dealership in St. Louis for violating his publicity rights. From the THREsq post on this:

Hogan is suing Southland Imports and Suntrup Automotive Group over a commercial that warns unwary car buyers of getting "body slammed" over bad deals and that invites customers "tired of wrestling for a good deal." The lawsuit filed on Tuesday in Florida District Court alleges that the defendant violated Hogan's likeness and implied an endorsement by imitating his voice and using his catch phrases.

And what catch phrases does Hogan claim in the lawsuit to have popularized?

• The heavy use of "brother" to refer to one's acquaintances
• Pointing to one's own muscles and referring to them as "guns" (Watch out, Ron Burgundy)
• Reference to fans as "Hulkamaniacs"

Yet another case of publicity rights gone mad. Calling someone "brother" and referring to muscles as "guns" is something that's gone on for ages. Even if he did popularize it, it doesn't mean only he gets to use the phrases. But this is the sort of situation that's created by the pernicious nature of "ownership" culture, where people are being taught that they can "own" pretty much any idea or concept. It inevitably leads to clearly ridiculous lawsuits such as this one.

Filed Under: hulk hogan, publicity rights