Many media experts were surprised to hear how much retired professional wrestler Hulk Hogan was awarded by a jury in his suit against Gawker Media. A Florida jury in mid-March awarded Hogan a whopping $140 million—$115 million in compensatory damages and $25 million in punitive damages—for Gawker’s release of a sex tape involving Hogan.
The invasion of privacy lawsuit stemmed from a video filmed in 2007, but posted in 2012 by Gawker that showed Hulk Hogan having sex with his friend’s wife. The jury found that Gawker was liable for harming Hogan and subjecting him to embarrassment and humiliation by the video that millions of people watched.
But legal scholars say that although the case involves a media company, the effect on press freedoms is likely to be limited. “I think the damages are crazy, but I just don’t see this as a terrible blow to the First Amendment,” said George Freeman, the executive director of the Media Law Resource Center. Freeman added, “This was an unusual and extremely private matter.” Beyond having an effect on the future of sex tapes, this case will likely not have a substantive effect on the First Amendment’s freedom of press.
Hogan’s case centered on whether the video was considered newsworthy due to Hogan’s fame. Hogan’s attorney David Houston argues that the jury’s verdict creates a clear rule that media companies cannot publish a sex video that was taken without the knowledge, and or consent, of the participants and disseminate it without their approval. But Hogan’s attorney also said that the case was about an invasion of privacy, not the First Amendment.
In response to those comments from Houston, Patrick File, an assistant professor at the Reynolds School of Journalism at the University of Nevada, Reno, made an analogy to explain the effect this case will have:
A ‘bright-line rule’ against the publication of any sex video without the consent of those depicted, regardless of the participants’ public status or the public’s interest in the video makes common sense,” Reynolds said. “But that rule would also apply to videos that might carry greater consequence as news audiences increasingly call for video evidence to substantiate contested public claims. Consider a video involving a politician who denies allegations of morally repugnant or illegal sexual activity. We can reject Gawker’s justification for posting this particular video from an ethical standpoint (I do) without accepting a legal rule that renders all similarly situated publishers liable and reluctant to provide proof.
Additionally, legal scholars do not believe this case will have much of an impact on press freedoms because so few media outlets would consider publishing a graphic sex tape, said Lyrissa Barnett Lidsky, an expert in the First Amendment at the University of Florida’s Levin College of Law.
The biggest effect that she sees this case having is in newsrooms when editors have to consider whether to publish intimate personal details that are linked to bigger news stories.
Gawker has already indicated that it plans to appeal the Hogan verdict. The media outlet’s stance at trial was that Hogan could not claim that his privacy had been compromised because he had repeatedly been inviting public attention to his sex life, even after the video’s existence became known. Unfortunately for Gawker, the jury disagreed, and releasing the video may now cost Gawker $140 million.
Published on April 18, 2016.