Why Hulk Hogan’s victory over Gawker is a stain on the First Amendment

posted at 6:31 pm on March 20, 2016 by Taylor Millard

A lot of people are celebrating the fact Gawker is probably going to have to shut down due to the $115M verdict against them in the Hulk Hogan trial. It makes sense because Gawker is a left-wing tabloid with no real moral code and seems more willing to write about sex lives and “maximum income,” instead of actual news. Their former editor even sickeningly claimed during the trial the only way a celebrity sex tape wouldn’t be newsworthy is if it involved a four-year-old. Gawker is a stain on journalism, but the verdict against them is a stain on the First Amendment. Gawker has every right to exist and publish every tawdry story it wants because of freedom of the press.

The crux of the trial is the age old battle over what defines the right to privacy. Hogan contends his privacy was broken because he was recorded having sex with Bubba the Love Sponge’s now ex-wife without his permission. Someone stole the tape and sold it to Gawker, who then published it. It’s similar to other claims made by celebrities when details of their own lives have been published. Neil Richards’ book Intellectual Privacy notes it all dates back to 1890 when journalists decided to focus more on the private lives of “the elite”:

Writing for the newly affluent middles classe and armed with new cameras that could take pictures instantaneously, the “Yellow Press” blurred settle lines between public and private. In June, the New York Times reported that opera star Marion Manola had obtained an injunction after a photograph of her taken on stage wearing tights was used by a theater promoter for publicly. In July, E.L. Godkin, editor of The Nation, argued that the rise of the Yellow Press required greater protection for what he called “the right to privacy.” This was a person’s right “to decide how much knowledge of his personal thought and feeling, and how much knowledge, therefore, of his tastes and habits, of his own private doings and affairs, and those of his family living under his own roof, the public at large shall have”…But there was a deep-seated class anxiety at work as well. Established Victorian elites felt their social status and control in doubt as literate urban lower classes challenged their authority. They saw their social control eroding, as disrespectful reporters scrutinized life inside their townhouses in pursuit of a scoop.

Richards notes this caused future Supreme Court Justice Louis Brandeis to co-write a piece opining the press caused morality and social standards to be lowered if they kept reporting on private lives. This caused state legislatures to start passing “privacy laws” to restrict press freedom and courts to uphold said laws. All it shows is the elite were trying to keep their private lives private, so commoners wouldn’t find out just how human they actually were. When it comes to Hogan, his defenders are saying his sex tape isn’t “newsworthy,” but Hogan has talked publicly about his sex life, as did his ex-wife. So Hogan is being hypocritical for being willing to talk on Howard Stern about his private life, but claiming the sex tape is private. It shows Hogan believes, as Brandeis did, there is a fuzzy line between public and private knowledge, and that it’s only okay for Hogan to talk about it.

Here’s the other reason why the jury verdict is scary: how it can affect future cases and American politics. Hogan defenders like to talk about the fact his privacy was violated because the tape was secretly recorded. But what about news stories involving sources who give out information “without permission” of their bosses? Why was it okay for Andrew Breitbart to get nude pictures of Anthony Weiner, but it’s not okay for Gawker to get Hogan’s sex tape? Why was it okay for Matt Drudge to report on Bill Clinton’s affair, but not Gawker and Hogan? Why is it okay for Fox News reporter James Rosen to use sources to report on the government, but Gawker’s reporting on Hogan is worthy of a lawsuit? Why was Mitt Romney’s “47%” comments okay in 2012, but Hogan’s sex tape isn’t? If what Gawker did isn’t okay, then isn’t it possible more lawsuits over “sources say” news pieces or leaked documents are going to happen? This is why people need to pause before triumphantly cackling at Gawker’s probable demise because it opens the door for future lawsuits, thus stifling press freedom.

This doesn’t mean Gawker should have posted the tape. They have every right to under the First Amendment, but they have to decide whether it’s really worth it. If I’d been in Gawker’s shoes I wouldn’t have posted the tape and probably would have given it to Hogan out of good will. His privacy was violated, but Gawker wasn’t the ones who did it. It was Bubba the Love Sponge for recording the video and his lackey for stealing it and selling it. All Gawker did was report what they were given. The press does have a responsibility to decide whether or not they want to report something, but ultimately it’s their decision. Lawsuits (or threats of lawsuits) and laws shouldn’t determine it.

I don’t particularly want Gawker to exist, but I do not believe the jury should have awarded the case to Hogan. The best way to get rid of Gawker isn’t through a lawsuit, but through killing its revenue stream. As people stop going to Gawker for “news,” the website loses ad revenue and whatever seemly influence it had. Mock it in public or write it off as some salacious website which doesn’t have any value. But don’t sue it. Gawker deserves to exist under the First Amendment and freedom of the press.


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