Gawker v Hogan is it really a first Amendment Issue?


Gawker just lost a wopper of a case today. They have lost their case related to reporting on the Hulk Hogan sex tape. It’s unclear how the sex tape was leaked to Gawker, or if there was any money exchanged, according to Wikipedia. Before we can determine if this massive damages of $115 million and potentially more as punitive damages.

Let’s take a step back and figure out what lines were crossed here. First, the Hulkster was not in his house. He as having sex with someone of his own volition. He was having sex with a married woman whose husband was known for filming his wife with other men. These all indicate that his privacy is going to be somewhat compromised, especially if the woman he was sleeping with had no idea if there were cameras running or in the bedroom at that time. So his privacy was already somewhat diminished because there was a likelihood of a camera in the house.

Gawker didn’t film this themselves. They did not set up Hulk Hogan to have sex and be filmed. There was no intent to create a situation where Hulk Hogan would be duped into having sex on camera for Gawker. The person violating Hulk’s privacy was the husband who’s bed he was having sex in.

Let’s take a step back and figure out where the boundary for privacy is in many of these cases. First we know that, due to the Streisand Effect, that suing over pictures of a celebrity’s house isn’t grounds for invasion of privacy. We also know that embarrassing images like Beyonce’s can’t be removed because people are talking about them and have moved into public discourse.

As much as media consumers have a love/hate relationship with the paparazzi, there’s some pretty clear lines for what’s an invasion of privacy and what is not – breaking into a home and taking the pictures themselves. If someone is in public they can be photographed. This may not be fair or really ethical in the manner they strive to get their pictures. But in public our expectation of privacy is greatly diminished.

So what about reporting on other sex tapes? Kim Kardashian sued several years ago over her sex tape that someone actually bought, rather than being leaked to them in the way Gawker had their tape leaked to them. Rather than following through with the law suit, she actually turned it into a business deal and likely made close to $4.5million, which really was the smart thing to do. She didn’t sue any of the many new sites that reported on this deal and the site she sued likely didn’t have the first amendment protections of a new outlet since it was a porn website. Tommy and Pamela Lee did win some money when suing over their sex tape, but that was over copyright infringement, because it was a porn company they sued, not a news site. So, most of the people that have won money in sex suits cases have been due to copy right infringement and, in fact, the women that were victimized during the so called “Fappening” threatened to sue Google using this approach.

In all these cases news sites reported on this and showed, in many cases doctored, images of the people that were involved in these cases. Kardashian’s sex tape was everywhere and snippets were shown on sites like Gawker. The argument here is that these are topics people care about and are news worthy. Which is why the paparazzi get away with the things they do, because people eat it up. The issue at hand is ultimately if this is actually newsworthy or in the topic of conversation. Which it was first talked about on Howard Stern and then stayed somewhat in public discourse afterwards. Ironically, similar to the Streisand Effect, the topic probably became even more interesting to the public as a result of the law suit. If Hogan had done nothing people wouldn’t have cared and I would never have written an article about this.

The goal here was to prevent other new agencies from distributing similar material, according to Hulk Hogan’s attorney. The goal is specifically to chill media activities in regard to celebrities. Which will be unsuccessful in the long run. History is on Gawker’s side and the president indicates that this will likely be overturned in appeal.

So, to answer the question, it’s likely a first amendment issue and because of the personality, it’s “news worthy.” The goal of the suit is to chill discussion and that’s unacceptable.

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