Tag Archives: First Amendment

Gawker v Hogan is it really a first Amendment Issue?

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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.

It’s not about the money, it’s about sending a message

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The Joker said it best in The Dark Knight. Destroying something that people care deeply about wakes them up. Gets them to pay attention. I think the recent events have woken people up in a lot of ways because it’s driven something home that would have otherwise been a misunderstood topic. A few days ago I wrote a blog about the militarization of police in that blog I compared a positive and a negative example of this (Boston and Ferguson). This has been getting a lot of interest lately because of the seeming disconnected in the amount of force actually required and the display of force on hand (especially considering the US government doesn’t think displays of force like this are effective for de-escalating situations). I do think that the protests would have started to draw less attention as time went on – in a similar fashion to the Occupy Wall Street protests fizzled out, however, the fact that the Police started to threaten and arrest a large number of journalists, made the news because the news itself was being threatened.

If we’re honest with ourselves we have to admit that the police killing a young blackman really isn’t news. It happens so often in the US that we rarely see it at a national level. We’d hear about it if it was a white guy (unless he was a drug user) or a white woman. Since it’s just another black kid, we don’t hear about it. However, attention stayed in the area because first amendment rights started to be restricted by the government. I know that a judge ruled that it was a special area which allowed some restrictions on where the press could go, but that’s exactly what the first amendment was supposed to defend the press against. It’s a type of prior restraint.

The press helped make this story bigger than it normally would have been by getting targeted by police. The fact that the news itself became the news to many of the people watching on Twitter rather than the message of the protesters is sad, but I’m glad that it was able to keep the attention on the protests in a way that have been some what constructive. It’s starting to force us to actually have a conversation about what sorts of equipment our police officers need. In an interview with the former Seattle Police Chief that oversaw a similar sort of confrontation in 1999 over the World Trade Organization, he argued that what needed to happen was a reduction in arms on the police side. He further argued that there is a great deal of racism in our police forces, not initially intentionally, but through learned fear and through common language in the departments. This is partially a result of the “Us vs. Them” mentality that results whenever two groups are continual conflict – anyone that might be part of the other group is part of that group. Because the War Against Drugs has primarily impacted the black communities, this has pitted the police against the black communities. It is likely part of the reason we have a lack of diversity in our police forces.

We’re finding in other portions of our society similar sorts of either intentional or accidental bias. Looking at the populations of the largest tech companies in the world we see the same sort of biases and segregations. In many cases it is because these selections become path dependent. People end up hiring friends and pulling in more people that look like them. Creating a larger problem and then HR has to step in and it’s a forced issue and people might question why a person was hired in appropriately.

The police have shined this light on themselves through their brutal responses where they show a clear lack of understanding of the people they are expected to be protecting and serving. Their actions, which should be protecting the press as well, have made sure that the press is going to be paying very close attention to all of their actions in the next few years. Furthermore, anything like the killing of another black man in the St. Louis area will result in extra scrutiny.

I think that killing that man ended up sending a message as much as taking away the rights of the protesters and press (both first amendments). The police don’t care and can act with impunity against the black community. They don’t care what the press does they will block Freedom of Information requests, prevent the press from filming their actions, and arrest anyone that gets in their way. A message has been sent. How we react is important to the future health of our press, our communities, and our freedom.