Column: Hulk Hogan sex tape verdict: A needed lesson
If there’s one thing American journalists love, it’s arguing against limits on the First Amendment.
I fit right into that group of passionate free speech advocates. In general, if I’m posed with the question as to whether the government should be allowed to punish journalists for something they’ve published, my answer is going to be no.
But even the most staunch backer of the First Amendment understands that our laws, constitutional or otherwise, fly in the faces of each other all the time, so some limits must be placed. You can’t have absolute free speech and also maintain a safe environment, for example (e.g. yelling “bomb” in an airport).
This difficult balancing act has played out beautifully in the past week, as Gawker lost a privacy lawsuit against Hulk Hogan (real name: Terry G. Bollea, but I’m going to continue calling him Hulk Hogan for the purposes of name recognition). The loss cost the media outlet $144 million in damages, which will likely be appealed and decreased.
The case came about after Gawker published an excerpt of a video of Hogan having sex with his friend’s wife, a video that he says he did not know was being recorded. His friend testified during a different lawsuit that Hogan did not, in fact, know about the recording. Hogan also claims this friend had encouraged the encounter. The video was posted on Gawker’s website in 2012 along with an article about the appeal of celebrity sex tapes, written by former Gawker Editor in Chief Albert J. Daulerio.
This is absolutely an instance when a person’s right to privacy outweighs any publication’s right to free speech, yet some journalists are taking a ride down some seriously slippery slopes in their arguments against this verdict.
Some journalists are saying this decision will have a chilling effect on media outlets everywhere the next time they’re posed with the opportunity to report anything damaging about a public figure. The fact that this jury placed a celebrity’s privacy above the public’s right to know, they say, is going to have serious implications for how the press operates in the U.S.
This is simply not true. This case is extremely specific. Nowhere does the decision say that reporting on the existence of this sex tape is punishable. All the verdict says is that the publication of the video itself is. Gawker could have published the exact same article without the video and almost certainly would not lose a lawsuit.
Another argument is that celebrity sex tapes are newsworthy, and the public has a right to see them.
I strongly disagree with this. A public servant’s sexual conduct may very well be up for public scrutiny because those are people paid with public money. But a mere celebrity like Hogan holds no obligations to the public, and therefore his or her privacy should have fair protections. And again, the verdict does not say that Gawker couldn’t have reported on the sex tape’s existence and circumstances. That is not the same thing as publishing the video itself without the subjects’ consent or even knowledge until after the fact.
The truth is, the United States protects speech more aggressively than any other country in the world. Take a look at how other nations deal with defamation, for example, and you’ll see that America is in no hurry to restrict the press. Quite the opposite. So this very specific decision saying that Gawker had no right to publish a sex tape of Hulk Hogan that he didn’t even know was being recorded will have absolutely no broader implications for free speech and press.
No, the only “journalists” who will be affected by this decision are the tabloid scum who think it’s acceptable to post sex tapes without the subjects’ consent. And those journalists are of an entirely different breed from me and mine.
I studied ethics extensively in college and continued to practice ethical journalism in my career. I don’t subscribe to the “I can, so I will” philosophy of Gawker’s staff.
In order to get an idea of what kind of person we’re talking about, here is an excerpt from a videotaped deposition by Daulerio from last year in advance of the trial, which was shown in court on March 9.
“Can you imagine a situation where a celebrity sex tape would not be newsworthy?” asked Hogan’s lawyer, Douglas E. Mirell.
“If they were a child,” Daulerio replied.
“Under what age?” the lawyer pressed.
Gawker said Daulerio was being “flippant,” but what kind of a man is flippant about publishing videos of 5-year-olds in sex tapes during a deposition? Not the kind of journalist I want to be associated with, that’s for sure.
I think it’s good that decisions like this are scrutinized by members of the press. We must stay vigilant. I admit America does not have a perfect history of protected speech and press, and who is going to stand up for journalists if not themselves?
But someone who defends his publishing a sex tape on the Internet does not need anyone standing up for him. He needs to learn a lesson, and so do others like him. Hopefully this case managed to teach him one.
Jessica Cabe is a former Post Independent arts and entertainment editor and contributing columnist.
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