P110: On Hulk Hogan, Gawker, and the First Amendment

Hulk Hogan was awarded $140 million dollars in compensatory and punitive damages this week when a Florida jury sided with the professional wrestler and amateur racist in his lawsuit against the internet tabloid Gawker over the publishing of a video showing Hogan having sex with his friend’s wife. Gawker publisher Nick Denton was not amused, but supremely confident about their chances at appeal. Characteristically, Denton did not hold back in his response:

“Hogan did not sue us, as he has claimed, to recover damages from the emotional distress he purportedly experienced upon our revelation in 2012 of a sexual encounter with his best friend’s wife, Heather Cole (then Heather Clem). It turns out this case was never about the sex on the tape Gawker received, but about racist language on another, unpublished tape that threatened Hogan’s reputation and career.”

While there’s plenty of reasons to dislike Gawker — not the least of which is their gleeful publishing of celebrity sex tapes — this is an open and shut first amendment case and the fact that it even got to a jury is a travesty. And now that the decision was put to a bunch of average Floridians, Gawker Media is required to issue a bond, the cost of which could cripple or destroy the company. Yes, Gawker did this to themselves. Yes, the post in question was tacky and culturally unnecessary. That doesn’t mean it isn’t protected speech.

There’s lots of people running around out there saying that this decision doesn’t change the freedom of the press. That as long as you’re not publishing sex tapes, you have nothing to worry about. These people are wrong and they are letting their old-fashioned yearning for a more civilized age color their analysis. The fact of the matter is that every publication with less money than Gawker now has to reckon that reporting the news can get them shut down and held personally liable. The constitution won’t even get the chance to protect the hundreds of thousands of publishers writing, blogging, tweeting every day in this country. Lawyer and blogger Scott Greenfield puts it better than I ever could:

“Faced with the potential of there being someplace in America that a jury could be empaneled that would take offense to the editorial determination that something is newsworthy, decisions will be influenced. News will go unreported. Pictures will get buried. Information will never be revealed. You (and I) won’t know. And we won’t know what we won’t know.”

That’s what is at stake here, and just because you’ve never published someone’s sex tape doesn’t mean you won’t feel the chilling effects.

Periodically yours,

Bob Sherron