Free speech, celebrity sex tapes, and Digital Age issues

March 10, 2016

By Gene Policinski
Inside the First Amendment

Former pro wrestler Hulk Hogan's lawsuit against Gawker, centering on a tawdry "celebrity sex tape," is rated the first of its genre to make it to trial — but it is about so much more.

In 2012, the online news outlet Gawker posted online a one-minute 41-second excerpt from a half-hour videotape showing Hogan — actual name, Terry G. Bollea — having sex with a woman described as the wife of his then-best friend.

The Gawker item was titled, "Even for a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed Is Not Safe for Work but Watch It Anyway." It was accompanied by a 1,400-word "narrative" written by Gawker's editor, A.J. Daulerio.

Hogan says he was not aware at the time he was being taped, did not agree to make it public and that Gawker published it just for the click-bait commercial value. He is suing Gawker in a Florida courtroom for $100 million for invasion of privacy and emotional distress.

Why should we care about this misbegotten mess of failed friendship, sorry sex and prurient posts? It's a long way — if ever — from reaching the U.S. Supreme Court. But we're just beginning as a society to reset legal lines in the Digital Age for protection of personal privacy, personal information reported by the news media, how we deal with so-called "revenge porn," and even the extent to which you and I can post critical comments online.

The trial already has echoes of a case that produced historic Supreme Court ruling decision, Hustler Magazine, Inc. v. Falwell. At issue was a crude satirical magazine ad aimed at Falwell. When all was said and done, Hustlerand its publisher Larry Flynt were responsible for helping to creating a lasting legal bulwark protecting social satire and political caricatures.

Writing for the Court, Chief Justice William Rehnquist said in the Hustlerdecision that "the sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those public figures who are 'intimately involved in the resolution of important public questions, or, by reason of their fame, shape events in areas of concern to society at large'."

So what does Gawker say it was doing in publishing the video along with the commentary? Its lawyers say Hogan had made his sex life — and the tape itself — newsworthy through a number of radio appearances and interviews prior to its post, making it a "matter of public concern."

Attacking that stance, Hogan's lawyer told a six-person jury this week that "we did not object to Gawker telling the story of the sex tape. ... We objected to using a video ... to promote the pornography to increase their profit."

The Hogan v. Gawker case asks us to revisit basic concepts around individual privacy, in a Web world where it's now exponentially easier for private information to be splashed instantly and pervasively across the globe — something many scholars say is not yet fully recognized by free speech laws.

The legal reverberations touch an 1891 law review article that first set out the concept of "privacy" in U.S. law. In that article, two young Boston lawyers, Samuel Warren and future Supreme Court Justice Louis Brandeis, argued that each person has a right to an "inviolate personality," and should have control over information about their "private life, habits, acts, and relations."

It was "new media," then as now, that sparked two lawyers' concerns — in their case the relatively new mass circulation newspapers: "The press is overstepping in every direction the obvious bounds of propriety and of decency," they wrote. "To satisfy a prurient taste, the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle."

Sound familiar? But even Warren and Brandeis accepted the notion of such information being published when a matter of public concern, say involving elected officials or candidates.

And then there's the matter of whether new efforts to legislate and punish "revenge porn," and whether the definition — posting of embarrassing videos or photos involving sexual content — should expand to include so called "non-consensual porn" where, as Hogan claims, there was no permission granted for public distribution.

We also have to parse future situations in which famous people like ESPN broadcaster Erin Andrews clearly are victims of criminal conduct, where scurrilous video is posted online — and, unfortunately, likely be available somewhere, from someone, for her entire life. Her recently concluded civil case against the man who secretly videotaped her naked through a hotel door peephole, and the company that owns the Nashville hotel where the crime occurred, produced a $55 million judgment. But as Andrews said in testimony, "... every day of my life, either I get a tweet or somebody makes a comment in the paper or somebody sends me a still of the video to my Twitter or someone screams it at me in the stands and I'm right back" to memories of the incident.

First Amendment advocates have long-maintained that one of the strengths of the 45 words of the First Amendment is that it sets out general principles that have withstood the pressures of repeated generations of new technology and have accommodated wild swings in social mores.

The Hogan trial issues test the core meaning of those 45-words and the social values behind them, in new age where not only the content but the speed, global reach and permanence of the message must now be reconsidered.

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at gpolicinski@newseum.org. Follow him on Twitter: @genefac.

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