The stakes in Hulk Hogan’s Gawker lawsuit

On Monday afternoon, a Florida jury added twenty-five million dollars in punitive damages to the hundred and fifteen million dollars it had awarded Hulk Hogan, on Friday, in his invasion-of-privacy case against Gawker Media. Hogan sued Gawker for posting portions of a sex tape it received from an anonymous sender. It’s a shocking amount, not least because it’s forty million dollars more than Hogan (whose real name is Terry Bollea) had demanded.

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Verdicts of this size can pose an existential risk to a media company. Gawker has reported that it earned forty-four million dollars in revenue in 2014, and in January Gawker’s owner, Nick Denton, announced that he had sold a portion of his company to investors in order to fund this case. Gawker will certainly appeal the verdict, as it should (after it pays a bond of up to fifty million dollars), arguing that the jury was unreasonable in finding that Hogan’s right to privacy outweighed Gawker’s right to publish the material, which it believed was of public interest. The publication of a videotape of consensual sex between adults is not the most appealing place to plant a First Amendment flag. But it is worth considering the possible effects on publishers if a judgment of this magnitude is allowed to stand.

Violations of privacy, like other forms of personal injury, are generally an issue of state law. But because state courts are not permitted to impose penalties that would violate the U.S. Constitution, the First Amendment protects the publication of true facts about public figures, unless such facts would be highly offensive to a reasonable person and are not of legitimate concern to the public. In this case, there was evidence both that Hogan was accustomed to publicly discussing details of his sex life, and that he himself considered his sex life, and the existence of the videotape, if not its contents, of legitimate public interest. Many established news organizations, including this one (I am The New Yorker’s general counsel), would not publish a video of this kind, but it is important to separate what might be considered tasteless or even mean-spirited conduct from conduct that violates the law.

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