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.
- Actually, Hogan claims that he didn’t even know the video was being made, although other parties dispute this. [↩]