Hogan case set to test limits of press freedom

Court hammer

The US does things on a grand and, at times, bizarre scale – and its courtrooms are not immune as the Gawker-Hulk Hogan case turns into a full-on battle between a constitutional right to freedom of the press and a celebrity’s dubious right to privacy.

An appeal is looming after punitive damages of $US25.1 million were added on Tuesday to the $115 million in compensatory damages awarded last week, bringing total damages against Gawker to $US140 million.

Gawker says the jury has not heard the full story and will take the case to appeal, but first it wants a reduction in the required $50 million bond necessary for it to proceed.

Hogan, a retired professional wrestler, sued the Gawker website for violation of his right to privacy after it posted a video of him having sex with the wife of a friend, Todd Clem, at Clem’s home.

The fact that Hogan had committed the act was no secret; the wrestler had discussed it in a television show on gossip site TMZ and had boasted on his sexual athleticism on Howard Stern’s syndicated radio show.

There are two highly questionable aspects of the case – the basis upon which the plaintiff mounted it and the fact it was run under Florida state law.

The first hinges on the fact privacy laws in Florida and other states have yet to be tested on constitutional grounds. Some legal experts even contend the case should not have been accepted by the Florida judge because of its constitutional overtones.

The second is a schizophrenic attempt by Hogan to mute the point that he had made the video newsworthy by bringing it into the public domain himself, in effect promoting its public interest.

Mounting the case under his legal name, Terry Bollea, Hogan tested the credulity of the jury by contending that it was not he who made those statements to Stern and TMZ, but rather the gregarious, over-the-top wrestling character he portrays.

The awarding of such massive damages undoubtedly will make the media think twice before publishing any material that might fall into this contentious ballpark, thereby curtailing its ability to publish freely.

This brings any appeal by Gawker fully into the realm of the First Amendment of the US Constitution, which, among other things, prohibits the making of any law that constrains freedom of speech or the freedom of the press.

Len Niehoff, a professor at University of Michigan Law School, says the magnitude of the damages could have a serious chilling effect on all media that report on public figures and their lifestyles.

“As the Supreme Court has recognised, the threat of large tort verdicts against the media can inhibit free speech every bit as effectively as government censorship” – Len Niehoff

“As the Supreme Court has recognised, the threat of large tort verdicts against the media can inhibit free speech every bit as effectively as government censorship,” Prof Niehoff wrote in an article for The Huffington Post.

“Second, and in my view more importantly, Hogan’s case could create a dangerous precedent within privacy law. If he is successful, his case could inspire a strategy of privacy-bait-and-switch, where a celebrity lures the media into reporting on a presumptively private topic and then ambushes them with a lawsuit seeking millions of dollars when they do so.”

Samantha Barbas, a law professor at the University at Buffalo whose research focuses on the intersection of the First Amendment, media and privacy, told The New York Times the verdict “could have a profound impact on privacy rights and also free press rights” in the United States.

“For a jury to say that a celebrity has a right to privacy that outweighs the public’s right to know, and that a celebrity sex tape is not newsworthy, represents a real shift in American free press law,” Prof Barbas said.

Dan Kennedy, a former media critic for the Boston Phoenix, weighed up the right to privacy over the public’s right to know on his blog, Media Nation.

“Our modern understanding of privacy law is rooted in Samuel Warren and Louis Brandeis’ 1890 Harvard Law Review article, The Right to Privacy,” Kennedy writes. “The first of Warren and Brandeis’s six principles – newsworthiness – is what Gawker hung its hat on in its defence.

“The right to privacy does not prohibit any publication of matter which is of public or general interest, Warren and Brandeis write.”

Any appeal will centre on arguments over merit of the video as a piece of journalism.

Noah Feldman, a professor of constitutional and international law at Harvard University said that even a film clip counts as content under the First Amendment, and defensible under free speech and press freedom provisions. However Daniel Solove, a privacy expert and a George Washington University Law professor writes in The New York Times that the posting of the Hogan sex video is not speech that the First Amendment does or should protect.

“Sex videos, nude photos and revenge porn – even of famous people – are not newsworthy. They are not of legitimate public concern.

“Gawker founder Nick Denton will appeal, and it’s possible that he’ll win. If the verdict stands, though, it should serve as nothing more than a common-sense reminder that though the First Amendment’s protections are vast, they are not limitless.”

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