Gawker Defies Judge, Refuses To Take Down Post About Hulk Hogan Sex Tape Despite Court Order

from the first-amendment,-brother dept

Gawker has been in a legal fight with Hulk Hogan, who was upset that they posted a brief clip (about 1 minute out of 30 minutes) of a sex tape involving Hogan and Heather Clem, the wife of one of Hogan’s friends. Hogan claims that he didn’t know he was being filmed at the time. His initial lawsuit, for $100 million, had a huge number of questionable claims and a federal court ruled against Hogan pretty quickly, pointing out that Gawker was protected by the First Amendment. Hogan then tried strategy two, which was suing in state court in Florida under a particular state law. Somewhat amazingly, the judge in that case has now granting an injunction against Gawker’s post, but made it so incredibly broad that it effectively demanded not just the takedown of the video, but the entire post, written by A.J. Daulerio (which was about the whole concept of celebrity sex tapes, rather than just about the Hulk Hogan video) and all of the comments on that post.

It’s unfortunate when state courts seem to go out on a limb like this, and Gawker has decided that the ruling is so ridiculous that it’s refusing to take down the post, though it did agree to take down the video clip (again, which was just a very small portion, which is why the federal judge had argued it was protected by fair use). In the Florida case, Hogan is claiming that the publication of the video was an invasion of privacy. Even if that’s true — and it seems like a stretch — to the go even further and order the entire commentary be taken down as well is extreme and clearly beyond the First Amendment. Amazingly, the judge also determined that a preliminary injunction was appropriate without even looking at the video in question!

We publish all manner of stories here. Some are serious, some are frivolous, some are dumb. I am not going to make a case that the future of the Republic rises or falls on the ability of the general public to watch a video of Hulk Hogan fucking his friend’s ex-wife. But the Constitution does unambiguously accord us the right to publish true things about public figures. And Campbell’s order requiring us to take down not only a very brief, highly edited video excerpt from a 30-minute Hulk Hogan fucking session but also a lengthy written account from someone who had watched the entirety of that fucking session, is risible and contemptuous of centuries of First Amendment jurisprudence.

In the Gawker post, they demonstrate segments from the transcript where it appears the judge is quite unfamiliar with the basic concepts of freedom of speech, and the fact that it extends beyond what someone is verbally saying out loud. For example, she expresses confusion over what “free speech” issue there even is and asks Gawker’s lawyer if it’s the “speech” between Hogan and the woman he’s having sex with, and then being confused when the lawyer points out he’s talking about the written report about it.

The injunction really does seem to go against pretty much all First Amendment case law. Furthermore, on the question of comments from others, the ruling seems to completely ignore Section 230 of the CDA as well, which clearly says Gawker is not liable for those comments. While the subject matter here may be a bit crazy, the ruling is serious… and seriously problematic for those who believe in free speech.



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Comments on “Gawker Defies Judge, Refuses To Take Down Post About Hulk Hogan Sex Tape Despite Court Order”

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68 Comments
Anonymous Coward says:

Re: Re: Re:

The bench warrants might change their attitudes. There’s a way to challenge a court’s order without getting arrested, and this is not it. Bragging about disobeying the court order is really, really dumb. I’m not surprised Mike is applauding it. Moreover, I don’t see how the order is “blatantly unconstitutional.” What about Hogan’s rights? The First Amendment doesn’t necessarily trump his rights of privacy and publicity. If the video violates his rights, then the written narrative describing what’s on the video might as well.

Anonymous Coward says:

Re: Re: Re: Re:

“No one is disputing that they have a right to write a legitimate news story.”

“And then talking about he had an extramarital affair. He was in a bedroom. It was not his bedroom. It was not his wife, et cetera. A tape was made allegedly. Someone is trying to shop that tape. You can say all that in words.”

This is from the transcript, from the side that wanted the injunction.

Anonymous Coward says:

Re: Re: Re:2 Re:

Did you read the article they’re not taking down? http://gawker.com/5948770/even-for-a-minute-watching-hulk-hogan-have-sex-in-a-canopy-bed-is-not-safe-for-work-but-watch-it-anyway It’s just a play by play of the tape. Then read paragraph 2 of the TRO that says no written narrative describing what’s on the tape–that’s what the article is. They have the right to write a legitimate news story, sure. But the play by play of a tape that violates Hogan’s rights is different since, it seems to me anyway, it also implicates his rights.

Josh in CharlotteNC (profile) says:

Re: Re: Re:5 Re:

I wouldn’t particularly care about privacy rights, no. There’s a lot of sex tapes out on the internet, so one of me wouldn’t change much. Suing you would bring far more scrutiny than just letting you do whatever the hell you wanted with it.

Would I be pissed off at you? Sure. Pissed off enough to punch you in the face if I ever saw you? Probably. Pissed off enough to sue? Nope.

AzureSky (profile) says:

Re: Re: Re:7 Re:

if you know anything about Terry Gene Bollea you would know hes a giant egotist, I mean of epic scope and scale, watch the reality tv show his family did, watch videos of him talking about this situation.

he acts as if the world is against him and hes some kind of picked on 12yo girl…..

I was a huge fan when I was a kid, till I met the man behind the scenes, he lost my respect then….the mans ego is even more out of control then shatners was….and thats bad.

Ockham's Stubble (profile) says:

Re: Re: Re:5 Privacy

I would care about my privacy rights, sure. I’d be looking for the Prosecutor’s office to charge you with the appropriate criminal charges, and/or go after you civilly. If you sold/leaked it to others and they reported on it, I’d be furious at that too. (Not sure my performances would be newsworthy, though…) In any case, I’d use that public dissemination at YOUR trial, not theirs, when it came to damages. Free speech is not stalking. The problem (if there is one – in this case, it’s apparently unsettled fact) is the initial taping, not the reportage after that.

S. T. Stone says:

Re: Re: Re: Re:

The description of the video and the commentary on sex tapes in general that makes up the bulk of the original post does not constitute either defamation or an invasion of privacy.

Even if Gawker came into possession of the sex tape via unlawful means, its description of the video (and the aformentioned general commentary) does not constitute an unlawful act. The theft of the Pentagon Papers constituted an unlawful act; reporters talking about the information contained within the Pentagon Papers does not. Any attempt by a court to prevent such discussions qualifies as a blatant end run around the First Amendment.

Nothing Gawker did before defying this court order rises to the level of an illegal act, and I would argue that even defying this blatantly unconstitutional court order doesn’t count because of the unconstitutionality of the order.

Anonymous Coward says:

Re: Re: Re:2 Re:

Nothing Gawker did before defying this court order rises to the level of an illegal act, and I would argue that even defying this blatantly unconstitutional court order doesn’t count because of the unconstitutionality of the order.

As I said, it’s still contempt even if the order violates their First Amendment rights. They MUST obey it or be in contempt. Even if they later challenge the constitutionality of the order and WIN, they will still be guilty of contempt. The only defense would be that the court didn’t have jurisdiction.

Anonymous Monkey (profile) says:

Re: Re: Re:3 Re:

S. Carolina v. U.S., 199 U.S. 437, 448 (1905).
?The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.?

Owen v. Independence, 100 S.C.T. 1398, 445 US 622
?Officers of the court have no immunity, when violating a Constitutional right, from liability. For they are deemed to know the law.?

Boyd v. U.S., 116 U.S. 616
?The court is to protect against any encroachment of Constitutionally secured liberties.?

That’s just 3 I found from a very quick scan…

RD says:

Re: Re: Re: Re:

“What about Hogan’s rights? The First Amendment doesn’t necessarily trump his rights of privacy and publicity. If the video violates his rights, then the written narrative describing what’s on the video might as well.”

Actually, thats pretty much EXACTLY what the First Amendment does. His right of privacy does NOT extend to supressing speech ABOUT him just because he doesn’t like it. The Constitution also grants him NOTHING on the subject of publicity rights. Nada. Zip. Zero. You are completely wrong.

Anonymous Coward says:

Re: Re: Re:2 Re:

You’re right, it doesn’t suppress speech about him because he doesn’t like it. But it can suppress speech that defames him, or that paints him in a false light, or that appropriates his likeness for commercial purposes, or that intrudes upon his seclusion, or that reveals private facts that are not newsworthy, etc. The First Amendment is not absolute–it’s qualified by countervailing interests and rights.

S. T. Stone says:

Re: Re: Re:3 Re:

it can suppress speech that defames him, or that paints him in a false light

Prove that Gawker lied about anything presented as a statement of fact in the original column.

that reveals private facts that are not newsworthy

How can we determine if certain facts do not count as ?newsworthy? if we cannot openly discuss those facts?

Anonymous Coward says:

Re: Re: Re:4 Re:

Prove that Gawker lied about anything presented as a statement of fact in the original column.

You missed my point. I was giving examples of things that can trump the First Amendment: defamation, right of privacy, and right of publicity. I wasn’t saying all of those necessarily apply here. I was refuting your claim that the First Amendment trumps all. It doesn’t. Not even close. First Amendment rights are extensive and powerful, but they are also qualified and limited by countervailing rights.

How can we determine if certain facts do not count as ?newsworthy? if we cannot openly discuss those facts?

The intimate details of a sexual act he engaged in are not newsworthy. They are private facts that would be protected by his right of privacy–even if he’s a celebrity. Celebrities have less privacy protection than non-celebrities, but they still have a right of privacy.

Anonymous Coward says:

Re: Re: Re:5 Re:

I don’t believe the phrase “right of publicity” is found in the constitution. I also don’t see where any exceptions are granted in the text of the first amendment. For example, when the supreme court decided that “obscenity” has no first amendment protection. Can anybody point out where the first amendment says “except for obscenity”? No. It’s not there. Neither are any other exceptions that courts pull out of their butts. But that’s what courts love to do: restrict our freedom by making up exceptions that are found nowhere in the constitution.

Anonymous Coward says:

Re: Re: Re:6 Re:

That’s an easy one. Some (though very few) judges have taken an absolutist approach to the First Amendment–Justice Black, most famously: http://en.wikipedia.org/wiki/Hugo_Black#First_Amendment But to answer your textual question, the First Amendment states “Congress shall make no law . . . abridging the freedom of speech . . . .” The wiggle room is found in the “abridging the freedom of speech” part. The reasoning is that recognizing a right of publicity does not abridge the freedom of speech. Neither does copyright for that matter. I realize that you likely disagree, but that’s where the wiggle room is. The debate is over what it means to abridge the freedom of speech. You might think that any restriction whatsoever on speech is an abridgement, but that view has always been the minority view.

S. T. Stone says:

Re: Re: Re:6 Re:

The restrictions placed on our freedom of expression exist because we would otherwise regularly infringe upon the freedoms and rights of others.

We hold defamation as illegal because of the harm lies (lies and slander!) can do to a person?s reputation. That harm can further damage a person?s life by making it impossible for said person to, say, get a job or go out in public.

We hold incitements to violence and ?fighting words? as illegal because of the potential for actual physical harm to come to the person(s) on the receiving end of such speech.

We make these exceptions so that we can hold people accountable for their actions in a court of law instead of leaving them to face either no consequences or the justice of a mob.

The First Amendment, much the same as the rest of the Constitution, must adapt with the changing world while still holding true to its underlying principles. That means we must create laws that make certain kinds of provably harmful speech illegal while still protecting speech that cannot provably create harm in all possible instances.

Anonymous Coward says:

Re: Re: Re:8 Re:

In the US, libel and slander are civil rather than criminal, presumably because of the first amendment. A person can be sued for them, but not prosecuted.

Well, that’s easily disproved. http://scholar.google.com/scholar_case?q=369+F.Supp.2d+1291&hl=en&as_sdt=2,19&case=9488057975772539813&scilh=0

(a) Criminal defamation is communicating to a person orally, in writing, or by any other means, information, knowing the information to be false and with actual malice, tending to expose another living person to public hatred, contempt or ridicule; tending to deprive such person of the benefits of public confidence and social acceptance; or tending to degrade and vilify the memory of one who is dead and to scandalize or provoke surviving relatives and friends.

(b) In all prosecutions under this section the truth of the information communicated shall be admitted as evidence. It shall be a defense to a charge of criminal defamation if it is found that such matter was true.

K.S.A.21-4001.

The holding: Based upon the reasoning above, the court finds that the criminal defamation ordinance is neither unconstitutionally vague nor overbroad, and therefore, the court finds that the criminal defamation ordinance is not facially unconstitutional.

S. T. Stone says:

Re: Re: Re:5 Re:

I was refuting your claim that the First Amendment trumps all.

Now that could count as defamation: you stated that I claimed the First Amendment ?trumps all? when I said no such thing and have never said any such thing.

I recognize the limitations of the First Amendment and consider the generally accepted limits of defamation, incitements of violence, and ?fighting words? as reasonable.

The ?privacy right? and ?publicity right? limits you mention don?t strike me as reasonable. How can a news organization know beforehand if information it receives will absolutely infringe on either (or both) of those rights ? and even if the info does infringe, how can you expect the organization to keep a lid on it forever if said organization finds it newsworthy?

Any law that would codify those rights would have to receive the most narrowed and specific wording possible to prevent any misuse by a celebrity looking to, say, silence a critic or pull down information said celebrity finds embarassing before it becomes widespread. Unless an exception to the First Amendment makes as much sense as the three exceptions I listed above, we must tread carefully into any situation where we could chill the right to freely speak our minds.

And that brings me to your next point?

The intimate details of a sexual act he engaged in are not newsworthy.

You can judge the worth of such things in relation to how you see the world, but you don?t stand as the lone judge of ?worthwhile? in the world. Plenty of people may think of the details of a celebrity?s sex life as ?newsworthy?. (I agree with you in that I don?t find it newsworthy in any way.)

Gawker, TMZ, and other such gossip rags report on such things because they know this sort of ?news? will catch people?s attention. As long as people pay attention to gossip-level ?news?, it will remain ?newsworthy?.

Oh, and don?t assume that information you don?t find ?newsworthy? doesn?t deserve protections under the First Amendment. I don?t consider the answer to ?Where do I live?? (North Carolina for the record) as ?newsworthy?, but that doesn?t mean I have the right to shut you up if you print it on the front page of a newspaper.

G Thompson (profile) says:

Re: Re: Re: Re:

A bench warrant against whom? Gawker is a company (ie: a legal fiction) and not a natural person in the criminal sense of the word.

A bench warrant would have to be against EVERY person in Gawker who had any knowledge (and authority) to both ignore and delete the offending article. Otherwise the Judge will be sanctioned himself.

Though ONLY in the USA can a Federal court give one order then a state based court give a totally different order due to the state based judge playing the ‘butthurt’ card. Especially when both claims all are based under Federal Constitutional claims or Federal Statutes

out_of_the_blue says:

Ankle-biters at Gawker have gotten outside the fence!

Disobeying an injunction in order to uphold the right to publish sex tape or comment about it is not a winning case, it’s just insane fixation on promoting a bit of vulgarity that cheapens all free speech and especially in the political realm.

Just because speech is in principle “free” doesn’t mean that it’s in unlimited supply. You cannot spend “free speech” on trivial and vulgar subjects and still have it! CHOOSE your battles.

This is a mix of vulgar and stupid that crosses the “icky” line, and that’s all most people will see. I bet a jury hands Gawker a big loss simply because they don’t want to see it, and don’t want some nasty little kids promoting vulgarity by trumpeting what they should clearly have the common decency to avoid. Remember, kids, your mother is the type who serves on juries. Clearly Gawker likes to wallow in this stuff, and your mother will take an instant dislike, won’t get to the Constitutional questions.

Gawker should have just given in reluctantly. The content of their speech here is not worth fighting over.

And it’s possible that the anarchists at Gawker intend to take another bite out of worthwhile free speech. — And YES, I can and DO judge what’s worthwhile. So do all the little weenies here who tell me to shut up ’cause I’m not saying anything worthwhile! This is not worth anyone’s time. If the battle lines for free speech are now down to defending publishing this, civilization is about over.


Take a loopy tour of Techdirt.com! You always end up same place!
http://techdirt.com/
Techdirt fanboys are totally committed to free speech — which to them means links to FREE infringing content!
15:17:15[q-290-6]

Anonymous Monkey (profile) says:

Re: Ankle-biters at Gawker have gotten outside the fence!

The content of their speech here is not worth fighting over.

It is not the content, but the fundamental First Amendment right.

This is a mix of vulgar and stupid that crosses the “icky” line

I most certainly agree with you on that point, but, alas, that point is secondary to the fundamental issue here.

out_of_the_blue says:

Re: Re: Ankle-biters at Gawker have gotten outside the fence!

The content of their speech here is not worth fighting over.

It is not the content, but the fundamental First Amendment right.

I’m making the practical case that fundamentals won’t matter to a jury.

People every day decide whether to fight or not on sheerly practical grounds: here, Gawker has chosen to fight for vulgarity on lofty grounds. In my opinion, that won’t work.

S. T. Stone says:

Re: Ankle-biters at Gawker have gotten outside the fence!

promoting a bit of vulgarity that cheapens all free
speech

The content of their speech here is not worth fighting over.

?First they came for the pornography??

People fight for the First Amendment right to express ideas that we find offensive or vulgar specifically so that the government can?t later expand the supression of that right into other areas.

I remind you that the ACLU sued the state of Illinois on behalf of a group of Neo-Nazis for this exact reason ? and won.

Just because speech is in principle “free” doesn’t mean that it’s in unlimited supply. You cannot spend “free speech” on trivial and vulgar subjects and still have it!

I can say whatever fucking vulgar things I want and you can?t legally do jack fucking shit about it because my fucking right to offend you doesn?t give you the right to not feel fucking offended at my speech.

Gawker didn?t fucking defame Hogan, and it didn?t fucking do or say anything illegal by posting that rundown of his sex tape or the commentary on sex tapes in general. Vulgarity doesn’t serve as a barrier to free speech, and fucking shame on you for suggesting otherwise.

I bet a jury hands Gawker a big loss simply because they don’t want to see it

And then Gawker gets to appeal the verdict, win said appeal specifically on constitutional grounds, and shove it in that jury?s face.

Clearly Gawker likes to wallow in this stuff, and your mother will take an instant dislike, won’t get to the Constitutional questions.

At which point your mother will decide a case based on emotion instead of facts.

I can and DO judge what’s worthwhile.

You can judge whether you consider certain expressions or forms of speech worth your while, but when it comes to the Constitutional protections of the First Amendment, I believe nine souls who sit on a very important bench in a very important city have a far greater right than you to judge what we should consider ?worth? protecting.

If the battle lines for free speech are now down to defending publishing this, civilization is about over.

The ACLU fought for Neo-Nazis specifically because it believed even offensive speech deserved Constitutional protections, and the courts agreed.

The videogame industry fought against the state of California for the right to publish violent videogames without having that right impugned by an unconstitutional fine.

Larry Flynt won a Supreme Court decision that expanded the protections afforded to parodies ? for publishing an ad in Hustler that said Jerry Falwell lost his virginity to his mother in an outhouse.

We defend the offensive, the vile, the vulgar, and the disturbing because we must.

G Thompson (profile) says:

Re: Re: Ankle-biters at Gawker have gotten outside the fence!

We defend the offensive, the vile, the vulgar, and the disturbing because we must.

This a thousand times this…

The interesting thing is that OOTB is itself protected by this otherwise I finding him/it vulgar, vile, disturbing and offensive to my intelligent would be able to shut him up with legal shenanigans too.. Damnation!!! 😉

Ninja (profile) says:

Re: Re: Ankle-biters at Gawker have gotten outside the fence!

I remind you that the ACLU sued the state of Illinois on behalf of a group of Neo-Nazis for this exact reason ? and won.

That takes guts to be done. I’d feel very uncomfortable defending such speech. But that’s the nature of free speech. It allows everything. Including our trolls bullshit.

Jesse (profile) says:

“which was just a very small portion, which is why the federal judge had argued it was protected by fair use”

Fair use implies Hulk Hogan made a copyright claim, but how can that be if he didn’t know he was being filmed. He most definitely can’t be the copyright owner then? Unless filmer sold rights to him, in which case does that mean Hulk published it knowingly to web?

TaCktiX says:

Re: Re:

Fair use is an important part because the original video IS copyrighted in some capacity. Hulk Hogan may not be the holder of the copyright, but without fair use the video is easily taken down by either a DMCA filing or a court order about the illegality of posting the video. Fair use is necessary to get to the First Amendment aspects of the case.

Anonymous Coward says:

yet another example of judges hearing and then ruling on cases that they have no suitable knowledge of. why do these illiterate judges (and i mean it from the Constitution and Internet side of things) even get involved? they know they are not capable of doing the right thing but are so concerned about losing the ‘gravy train’ of a job, the screw peoples lives and rights in the process. for goodness sake, get up to date or butt out!!

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