What The Hulk Hogan Verdict Means For Freedom Of The Press

A lewd, muscular, mustachioed wrestling hero in a sex tape with the wife of his best friend — a man named Bubba “The Love Sponge” Clem.

It’s no doubt bizarre. But is it newsworthy?

That question was at the heart of the high-profile lawsuit filed by ex-professional wrestler Hulk Hogan (real name: Terry Bollea) after Gawker ran a lengthy story entitled “Even for a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed is Not Safe For Work but Watch it Anyway.” The post featured a clip of Hogan in the ring, so to speak, with his then-best friend’s wife.

A Florida jury found on Friday that Gawker had invaded Hogan’s personal privacy by publishing the clip and awarded Hogan a massive $115 million in damages.

It was a decision that Gawker had warned would have chilling implications for the media at large.  

“We ask you to protect something that some of you may find unpleasant,” Gawker attorney Michael Sullivan told the jury in closing arguments. “To write, to speak, to think about all topics, to hold public figures accountable. It is right in the long run for our freedoms.”

While Gawker intends to appeal, many are left wondering: What impact will the verdict have on freedom of the press and what precedent does it set? 

According to Erwin Chemerinsky, dean of the University of California, Irvine School of Law, Friday’s decision simply means “you can’t put up a tape of someone having sex without that person’s consent.”

“I don’t think it goes any further than that,” he told The Huffington Post, adding that publishing the video is “inherently different” from simply writing about the fact that a Hogan sex tape exists. 

In fact, gossip websites TMZ and TheDirty.com both published news of the video before Gawker posted a 101-second excerpt of the tape.

Clay Calvert, a First Amendment expert and professor of law and mass communications at the University of Florida, told HuffPost prior to Friday’s verdict that a ruling for Hogan would mean the jury is drawing “an important line suggesting that the contents of a sex tape are not newsworthy.” But he added that, in reality, most media wouldn’t publish a story with a sexually explicit video. 

“It will affect those in the sphere of publications like Gawker,” Calvert said, “who push the envelope in terms of what they find newsworthy.”

Mary-Rose Papandrea, a law professor at the University of North Carolina, agreed it likely won’t have a larger effect, because “most journalists and most publishers are careful, and err on the side of protecting privacy.” 

Even so, there is currently an “anything goes” mentality when it comes to publishing information about celebrities, Eric Goldman, co-director of Santa Clara University’s High Tech Law Institute, told Fusion. Indeed, Gawker had argued in court that by repeatedly discussing his own sex life in public, Hogan made the subject fair game. Their loss, Goldman said, might result in ”some rethinking of that mentality.”

Since the verdict, Nick Denton, Gawker’s founder, made clear Gawker plans to appeal

Until then, one can only assume the $115 million verdict will result in other outlets thinking long and hard before publishing the next sex tape that surfaces.

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