On Hulk Hogan and Free Speech


From CNN:

Jurors in the Hulk Hogan sex tape case ignored a plea for mercy Monday and added another $25 million to the $115 million they already awarded ex-wrestler Hulk Hogan.

The jury deliberated nearly four hours before deciding on the punitive part of the case.

Hogan had sued Gawker, founder Nick Denton and former editor A.J. Daulerio for violating his privacy by posting a snippet of a sex tape.

1. A $140 million dollar award seems ridiculously high, and may well be a threat to free speech. However, I’d be willing to bet $100 (donated to charity of the winner’s choice) that the award will be enormously lowered by a higher court – or overturned entirely.

2. Unless you’re arguing that high damages should never be awarded in any case where  a press outlet is sued, the overly high jury award is a different issue from the question of whether or not the first amendment protects publishing nine seconds of video of people having sex, when not everyone in the video has consented to have the video made public.1

3 The fact that only nine seconds of sex tape were published without consent, rather than a longer clip, does not make publishing nine seconds okay.

4. This case is fundamentally about free speech vs the right to privacy. It is possible to think this case was rightly decided (other than the amount of the damages award), and still be in favor of free speech, because what we have is a matter of weighing two conflicting interests. If you don’t see any interest at all at stake here other than free speech, then I’m confused.

5. There was a case recently where a female sports broadcaster was filmed nude through a peephole in a hotel room, without her consent. She sued the hotel and won.

But suppose she had earlier given an interview in which she said that her job had really stringent appearance requirements, and she had to have a body as good as any swimsuit model’s in order to be a TV journalist; and then suppose Gawker had published the nude video. In that case, would the folks now arguing that Hogan’s right to privacy was lost the moment he publicly discussed his sex life, now be arguing that she lost her right to privacy the moment she publicly discussed what her body looked like? If not, what’s the difference?

6. No one is arguing that Gawker didn’t have the right to report on what the content of the sex tapes are. Gawker’s right to report is not at issue here; only Gawker’s right to publish a sex tape without the consent of all the people in the sex tape.

7. Erwin Chemerinsky, Professor of First Amendment Law at the UC Irvine School of Law, wrote:

1st Amendment absolutists will worry about the “chilling effect” the verdict may have on speech, and will claim it’s impossible to draw a line between permissible and impermissible expression. Speech is speech.But I can imagine a clear rule: No videos of people having sex should be made public unless all of the participants consent. I think the media will survive the restriction.

We have many legal limitations on  free speech – some of which I disagree with (such as many applications of copyright law).

But there are some legal limitations on free speech which don’t substantially impede anyone’s right to politic, to create, or to report. For example,, my right to free speech doesn’t extend to making a political speech in Sean Penn’s living room if Penn didn’t invite me in. Yet, that legal restriction hasn’t turned this country into Orwell’s 1984. We can have reasonable restrictions on speech – including admitting that all people, even celebrities, have some privacy rights – without putting all free speech under threat.

Given that, I don’t understand why so many people – including smart people I admire – consider a “No videos of people having sex should be made public unless all of the participants consent” rule to be a burden that free speech can’t survive.

  1. Actually, Hogan claims that he didn’t even know the video was being made, although other parties dispute this. []
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7 Responses to On Hulk Hogan and Free Speech

  1. 1
    Sharon Cullars says:

    I think Gawker overstepped boundaries simply because there wasn’t a need to know. I’m all for freedom of the press, but I also understand that some “news” is none of my business; that includes Hulk Hogan’s sex life.

  2. 2
    Lirael says:

    I’m still bewildered at how $55mil in economic damages could have happened here (the $115mil compensatory was $55mil economic, $60mil for intentional infliction of emotional distress). I know the WWE fired him for saying something racist in the video, but 1) is that really $55mil, for a guy who’s been in pro wrestling for decades and presumably is going to retire eventually? and 2) I don’t think that one aspect is on Gawker, because they would have been in their rights, I think, to report that Hogan said a racist thing on the tape, the problem is that they showed the tape.

    I come down pretty much where you do on this one. The verdict is much too large (note that Hogan got more for intentional infliction of emotional distress, than the female sportscaster got in her entire verdict – I guess her emotional distress, not to mention that of everyone else who has brought a suit like this, counts for less) but the fact that the finding went against Gawker is correct.

    Unrelatedly, but related to the First Amendment, you may have seen that I was acquitted last week of trespassing on state property and (aiding and abetting) disorderly conduct – yay! – for having been present on unfenced, unposted grass, with first aid supplies, to offer first aid to anyone who needed it at a protest, observe public police behavior, and express agreement with the cause of Black Lives Matter – but that the DA’s office is still pursuing the conspiracy charge.

  3. 3
    Ampersand says:

    I hadn’t seen that – but now I have, and congratulations! That’s great news. Good luck on the conspiracy charge, too!

  4. 4
    Lee1 says:

    It seems obvious to me here that the right to privacy should outweigh free speech considerations, although I agree the amount the jury came up with is pretty ridiculous. I think it’s also worth pointing out that in the Erin Andrews (the female sportscaster) case, one reason she got such a big jury award from the hotel was that someone at the hotel told the stalker who filmed her what room she was in and specifically gave him a room right next to hers.

  5. 5
    Eytan Zweig says:

    I guess the potential “chilling effect” case here is that if sex is decided to have an inviolable privacy constraint, than you could use sex to mask illegal activity by ensuring that you always perform your illegal activity while you are also performin sexual activity, meaning that no tape of your illegal activity can be published.

    Which can have problematic implications in a case where, for example, a rape victim wants to publish video evidence of the rape which the rapist will block claiming they have not consented to the sex act involved being published.

    That said, I think the cases I’m describing are clearly exceptions, not the norm, and also clearly not what happened with Gawker and Hogan. So while I am a bit wary of a blanket rule being applied, I think that the presumption should be towards the right for privacy trumping free speech in the case of sex tapes, unless very exceptional circumstances hold.

  6. 6
    Ampersand says:

    I agree with what Eytan just wrote; I can certainly imagine some cases in which a legitimate public concern would override consent/privacy concerns.

  7. 7
    VK says:

    In a somewhat related, positive, UK court case: media have been gagged on reporting on a threesome a celebrity had with the consent of their partner, and the couple involved on the basis that it is no-one’s damn business/ side order of “think of the children”. I’m less keen on the secondary motivation, but very pleased with the decision.