By Lena Williams, Guild-CWA :: Hulk Hogan’s wrestling days may be over but the former pro wrestler won a major victory in court this week over an unlikely opponent: the media.
Last Friday, a Florida jury awarded Hogan $115 million in compensatory damages in an invasion of privacy suit the wrestler and reality television star filed against Gawker.com after the online website posted a video of him having sex with another man’s wife. On Monday, the jury awarded an additional $25 million to Hogan in punitive damages.
Gawker said it will appeal the decision but the company’s founder, Nick Denton, seemed as stunned and dazed at the verdict as some of Hogan’s opponents after a pummeling by the 6-foot-7 inch, 302-pound wrestler.
The trial was a case of competing First Amendment principles: the rights of a free press and free expression verses an individual’s right to privacy.
It was up to the jury of six in St. Petersburg, Fla., to decide whether Hogan’s sex life, which he admittedly often bragged about, was newsworthy enough to be a matter of public concern, one of the basic tenets of the First Amendment.
Gawker’s lawyers and editors argued that the one minute 40-second video it posted in 2012 was an act of journalism protected under the First Amendment and that a verdict in favor of Hogan could cripple press freedoms.
In its defense, Gawker asserted that Hogan is a celebrity who has flaunted details about his sex life in public in several radio appearances and writings. As a result, Gawker representatives claim that Hogan’s sex life was fodder for his fans and, thus, fair game for journalists as a matter of “public concern.”
What they failed to say, perhaps purposely so, is that any mainstream media outlet that aired video of anyone having sex would face heavy fines and/or imprisonment under Title 18 of the United States Code for broadcasting obscene, profane and indecent material, an area not protected by the First Amendment.
Gawker, which has cultivated a reputation as a kind of tabloid, gossip news website, wanted the jury to believe that posting the explicit sex video of Hogan was somehow in the public interest and claimed the 30-minute secretly recorded sex tape was newsworthy. They pointed to the fact that the existence of the tape had been discussed in the news media.
“Gawker is defending its First Amendment right to join an ongoing conversation about a celebrity when others are talking about it and the celebrity is talking about it,” Seth D. Berlin, a lawyer for Gawker said in an interview. “This is a crucial issue not only for Gawker, but for all media organizations.”
The jury, which deliberated for a mere six hours before handing up its verdict, didn’t see it that way.
They apparently saw a man’s private life being viewed by millions of strangers without his knowledge or consent and the possibility that their own private sex lives could be similarly publicly exploited for all to see. So the jury decided in favor of Hogan over that of the press’ guaranteed right to publish just about anything it considers news.
The whole tawdry affair would be laughable were it not for the broader repercussions. That was made clear last November when Florida Circuit Court Judge Pamela Campbell, who is overseeing the case, ruled that Hogan and his legal team could search through the computers and cell phones of Gawker and its top executives to determine if employees at the website purposely leaked “irrelevant and inflammatory” confidential information about the wrestler to the National Enquirer, Radar Online and others.
Campbell also ruled that Hogan’s attorneys could conduct depositions of Gawker’s founder, Nick Denton, former editor-in-chief, A.J. Daulerio, and the website’s general counsel Heather Dietrick.
Many mainstream media organizations have distanced themselves from Gawker and its tabloid-style journalism, saying that it’s sites like Gawker that are giving journalism a bad name. The company found itself widely criticized and condemned last July when it published an article that accused a married male media executive of paying for sex with a gay escort via a text message. The article was removed after a barrage of criticism and two of the website’s editors resigned.
But most journalists recognize that regardless of how they feel about Gawker and its editorial decisions, the judge’s rulings could be devastating to press freedom.
Imagine, for example, if the editors of The New York Times, The Washington Post or CBS and NBC were forcibly deposed about a news story. Or employees at media companies were told to turn over their computers and cell phones to lawyers to search for possible leaks. All of us in the media would be crying foul and waving the Constitution in the judge’s face.
As for the Gawker case, courts have generally found that the media has the constitutional right to publish just about anything it deems newsworthy. But journalists also bear a responsibility to be fair and accurate and to show discretion. Most media organizations, for example, have strict policies against publishing or broadcasting the names of victims of rape or sexual violence or the names of minors involved in family conflicts.
In most states, media companies can be sued for publishing facts about another person, even if those facts are true. Private facts usually include information about someone’s personal life that has not been previously revealed to the public, that is not of legitimate public concern and the publication of which would be offensive to a reasonable person.
Hogan’s lawyers said the posting of the sex tape was a “massive, highly-intrusive and long-lasting invasion” of their client’s privacy. They said in court that the post has been viewed by at least 7 million people.
Gawker may prevail on appeal. A federal court in Florida refused to force Gawker to remove the posting in 2012 and several courts have tended to give strong constitutional protection to the news media for broadcasting or publishing truthful articles that are deemed newsworthy.
But even if Gawker prevails on appeal, the multi-million monetary damages awarded to Hogan and the money the company will be forced to pay to litigate the case may ultimately force it out of business. Either way, the Hulk wins.