Hulk Hogan's $115 Million Win Against Gawker Raises Serious First Amendment Questions

from the the-appeal-should-be-interesting dept

Well, this isn't necessarily a huge surprise, but Friday afternoon a Florida jury sided with Hulk Hogan in his lawsuit against Gawker, awarding him a fairly astounding $115 million (he had asked for $100 million) for posting a short clip of a Hogan sex tape along with an article about it. We hadn't written about this case recently, as it was getting tons of press coverage elsewhere -- but when we discussed it three years ago, when a Florida court first issued an injunction against Gawker, we noted the serious First Amendment issues here. Hogan (real name: Terry Bollea) had originally sued in federal court where it was more or less laughed out of court, mostly on First Amendment grounds. However, he was able to try again in state court, where it's astounding that it even went to trial in the first place.

Given how the trial played out, the jury result wasn't much of a surprise. The judge limited Gawker's defense options, blocking a few key ones, and even the judge (during jury selection) had expressed opinions that appeared to be distasteful of internet celebrity media coverage. On top of that, much of Hogan's lawyers' case was built around making Gawker, its owner Nick Denton, and the reporter who wrote the article, AJ Daulerio, look as... obnoxious as possible. It highlighted their snarkiness and dismissive attitudes. But none of that is illegal. Being a jerk is still quite legal. But given all that, it seemed pretty obvious how the jury would rule. Hogan was made to look sympathetic and Gawker was made to look obnoxious and snarky.

But... the First Amendment remains. It's kind of insane, in the first place, that there even was a trial at all on the question of "how newsworthy" the tape was. Whether or not you or I think running the tape is appropriate, the fact remains that courts should never be determining if something is newsworthy. That's not the role of the courts, and that's part of the reason why the First Amendment is so clear in barring regulations that restrict freedom of expression or the freedom of the press. I've seen a bunch of people saying that this case isn't that big a deal because the only thing it really restricts is publishing sex tapes, but it goes beyond that in several ways. First of all, that kind of thinking is dangerous in its own right. It's the kind of thinking that wipes out the First Amendment because some people can come up with excuses for killing off just about any kind of content, as long as you say, "Well, that's okay, it's just shutting down content that is mean." The issue with the First Amendment and free expression is that the whole reason we have it is to protect content we don't like. Because someday someone's not going to like something you said either.

But, still, to me the key thing is simply having a court tell a newspaper what is or is not "newsworthy." As Scott Greenfield wrote in his post on the jury's decision:
But that’s not the most serious problem this verdict creates. What this trial put at risk is the determination of what constitutes “newsworthiness,” what is sufficiently worthy of protection under the free press clause of the First Amendment. On the one hand, it’s asked, “why should the editorial decision of what is sufficiently newsworthy to be entitled to protection be left to the media?” On the other, the question is, “what happens if newsworthiness is left to the sensibilities of 12 nice people from Tampa?”

There is good reason to question why media gets to decide what constitutes newsworthiness. They’re not gods. They have no magic. There are vague journalistic ethics floating around, but they aren’t laws, and certainly aren’t hard and fast rules to which all media adheres. What gives them the right to decide?

The alternative is that newsworthiness is left to Ma and Pa Kettle to decide. While journalists have no magic, the Kettles have none either. So are we better off constraining your right to know by their feelings of ickiness? Would you really want disclosure of the Pentagon Papers decided by whether it offended some folks in Tampa that Daniel Ellsberg stole them? Should the scope of a free press be determined by guts of some yokels from the hinterlands?
Gawker, not surprisingly, has made it clear it will appeal, and it has a decent chance to succeed. Based on earlier rulings in this case, in which the higher courts have indicated they see Gawker's move protected by the First Amendment, Gawker is probably at least somewhat confident that the jury's award will get thrown out. I know that some activists had been pushing for Hogan to win, arguing that it would be a win for "privacy rights" -- but this is woefully shortsighted. Media organizations get threatened all the time with bogus threats of anything from defamation claims to publicity rights to copyright and more, over coverage that people dislike. Adding the possibility of huge fines for violating someone's privacy over reporting on stuff they'd prefer remain secret is going to put a serious burden on investigative reporting. It's going to lead to a lot of lawsuits where the real focus is on trying to silence negative coverage, rather than for any legitimate purpose. The chilling effects of this may be massive.

Even if you dislike Gawker (and I know some people do, quite a lot) and even if you dislike their snark -- and even if you are a strong believer in privacy, this ruling should be a major concern if you support free speech and the First Amendment.

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  • identicon
    Anonymous Coward, 21 Mar 2016 @ 6:36am

    The media decides newsworthiness based on the wishes of Advertisers and owners, and to some degree the biases of the editorial staff.

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  • identicon
    Anonymous Coward, 21 Mar 2016 @ 6:39am

    I wanna see Gawker fucking burn. But not like this. Not with the First Amendment as collateral damage.

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  • identicon
    Linh, 21 Mar 2016 @ 6:46am

    I'd prefer Gawker be executed in the court of public opinion, but I think this won't actually set too large of a precedent.

    ...that may be more of a hope than a belief.

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  • icon
    MadAsASnake (profile), 21 Mar 2016 @ 7:08am

    "Being a jerk is still quite legal."

    Something Hogan relies on as well...

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  • identicon
    Anonymous Coward, 21 Mar 2016 @ 7:13am

    Where do you draw the line?

    Allow me to ask: Where do you draw the line?

    Can there be a situation where something cannot be published?
    Can "privacy" ever be a reason? Can anything else? Can anything limit the 1st amendment?

    While I read ever more stories that we (will) have ever less privacy, I ask if is it permitted to publish every single secret about everyone?

    Intuitively, I feel there should be a line somewhere. Is there? And if there isn't: should there be one?

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    • icon
      Mike Masnick (profile), 21 Mar 2016 @ 7:36am

      Re: Where do you draw the line?

      Can there be a situation where something cannot be published?
      Can "privacy" ever be a reason? Can anything else? Can anything limit the 1st amendment?


      There are an existing set of limits on the First Amendment. But it's a very small list, and privacy is not included:

      http://blog.bennettandbennett.com/2014/10/first-amendment-101/

      Things are different outside the US.

      Intuitively, I feel there should be a line somewhere. Is there? And if there isn't: should there be one?


      Why does there need to be a legal line? In most cases, the limit comes from the natural fact that publishing things that are not newsworthy or which cross a line too far, leads to social and economic damage for the publication.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 21 Mar 2016 @ 8:00am

        Re: Re: Where do you draw the line?

        Thanks for the reply and the link!

        Why does there need to be a legal line?

        Not having one makes privacy a one-way street: you can only loose it and the information can only be spread further. There is nothing that can be done to stop the dissemination.

        Now, I'm not as naive to think that a law prohibiting certain publications (such as private data - think "all the data needed to steal someones identity") would automagically mean that it would never happen again, far from it.
        But the fact that there is a law with liability concerns (and possible repercussions) would at least deter a lot more parties from gaining/publishing such data on a large scale. Something which, I assume for most cases, would make the "economic danger" that you speak of, a reality instead of a theory.

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        • identicon
          Anonymous Coward, 21 Mar 2016 @ 9:23am

          Re: Re: Re: Where do you draw the line?

          If I correctly understand the article you linked to, there exists a number of categories of 'unprotected speech' and any speech that is so categorized is thus not protected by the 1st amendment.

          While 'privacy' is indeed not on that shortlist, I find that there is at least one category that could apply: "Obscenity" (a sextape could be considered obscene, I suppose).

          How do you suppose that influences this case?

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          • icon
            IAmNotYourLawyer (profile), 21 Mar 2016 @ 10:11am

            Re: Re: Re: Re: Where do you draw the line?

            I'm not sure the tape is considered obscene. Obscenity definition from Miller v. California:
            The basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

            I haven't seen the clip in question, but from the description, it could fail the prurient interest prong- it's sounds fairly plain in terms of the act. Also, it could have literary/political value given that Hogan/Bollea is a public figure who has injected his sex life into the public discussion.

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      • identicon
        Rando M. Internetguy, 21 Mar 2016 @ 8:38am

        Re: Re: Where do you draw the line?

        Why does there need to be a legal line? In most cases, the limit comes from the natural fact that publishing things that are not newsworthy or which cross a line too far, leads to social and economic damage for the publication. (emphasis mine)


        Yeah, but it doesn't, does it. Publish anything on the Internet, some thousands or millions of folks will find it entertaining-- no matter how prurient, how despicable, how violative of human dignity. See any number of Daesh beheading videos.

        The problem with this case is that this abhorrent speech isn't what we think of protecting with the First Amendment. When we think of those rights, we think about racists, anti-abortionists, Westboro Baptists-- people with ideas that we find offensive, but we believe need to be able to be heard so that other now-unpopular ideas that will take hold in a future version of our society aren't silenced. Not some poor schlub banging someone in a private home and being filmed by some asshole.

        Gawker screwed themselves on this one. If they'd written a story about adultery, there'd be no conversation. They wanted to make money and be assholes. That it's Hulk Hogan doing the banging doesn't make the tape itself more worthy of release than if it's John Smith. You'd have us believe that the First Amendment should protect Gawker. I'm not sure I disagree. I can sure as hell understand why others do, though.

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      • identicon
        Anonymous Coward, 21 Mar 2016 @ 8:39am

        Re: Re: Where do you draw the line?

        In most cases, the limit comes from the natural fact that publishing things that are not newsworthy or which cross a line too far, leads to social and economic damage for the publication.


        Yes, like having to pay >100 Million for publishing a private sex tape. You know, the thing you just argued against...

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      • identicon
        Anonymous Coward, 21 Mar 2016 @ 9:25am

        Re: Re: Where do you draw the line?

        Can there be a situation where something cannot be published?
        Can "privacy" ever be a reason? Can anything else? Can anything limit the 1st amendment?


        This is all kind of ignoring the elephant in the room, why wasn't this prosecuted as sexual harassment? What implications does this have for revenge porn laws and prosecution around the country?

        reply to this | link to this | view in chronology ]

      • identicon
        Nic, 21 Mar 2016 @ 9:27am

        Re: Re: Where do you draw the line?

        Sorry Mike, can't back you on this. A court determining newsworthiness does sound like a bad idea but your concept that there needs to be no legal line and privacy should never matter is where you lose me.

        No, publishing private documents without the subject's consent should most definitely should be illegal, with some exceptions, namely, if the owner of said document is the government. But there's absolutely no reason why publishing a sex tape should be legal when there are revenge porn laws on the book. Obtaining that footage or selling it without consent (not Hogan's case though) is illegal but publishing it is? That makes no sense to me.

        Because once you go down that line, if a tabloid rag bought illegally obtained... say, medical records of an athlete/celebrity showing they have AIDs or a rare disease and then published it, hurting their career. Like with the Hogan case, it's a msssive breach of privacy and whoever does that should be punished.

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        • identicon
          Anonymous Anonymous Coward, 21 Mar 2016 @ 9:51am

          Re: Re: Re: Where do you draw the line?

          Wouldn't the illegal act be the stealing of the document, or video, or whatever? Or in this case recording a private act in secret?

          While it is shameful that stolen information gets disseminated, I personally would rather risk the potential shame (learn how not to Streisand it) than water down my right to speak my mind.

          Where I run into difficulty is the one party/two party consent laws. I think recording anyone in public should require no consent, and business being conducted on a telephone should be considered public, everywhere. Careful deliberation of what constitutes 'private' is in order, and (at least for many in today's society) private would include the bedroom during intimate moments, like sex.

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          • identicon
            Anonymous Coward, 21 Mar 2016 @ 4:46pm

            Re: Re: Re: Re: Where do you draw the line?

            I think recording anyone in public should require no consent, and business being conducted on a telephone should be considered public, everywhere.


            Why? If I were to engage in a conversation, in person, and behind closed doors, I expect it to be private. Same thing with a telephone. I'm not in a public place, out in the open. I should have a reasonable expectation of privacy since I'm talking to only one person (usually) on the phone. If you go to an office to conduct business, do you expect them to record you?

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    • icon
      Roger Strong (profile), 21 Mar 2016 @ 8:08am

      Re: Where do you draw the line?

      Just so. This isn't someone's criminal record we're talking about. It isn't sex in a public place. It isn't even sex the subjects filmed themselves and didn't exercise proper security over. It's a hidden camera sex tape. "Newsworthiness" *IS* an issue.

      Yes, there's a slippery slope, but it goes in both directions. If you're worried about what the government might do with the power to stop something from being published, then you should worry - in the age of electronic surveillance - about the government threatening you with the power to publish anything it wants about you. They'd have no problem finding a reporter to leak it to.

      Corporations - and Presidential campaigns annoyed with reporting - could threaten you the same way. And they have the money for the bounties on such video that have worked in the past.

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      • icon
        PRMan (profile), 21 Mar 2016 @ 8:29am

        Re: Re: Where do you draw the line?

        I agree with this.

        In this case, Hogan believed what he was doing was completely private.

        For his most intimate moments to be blasted everywhere for everyone to see is NOT the Founding Fathers' intent for the First Amendment allowing reporting.

        If they want to report that he had an affair, that's fine. But posting the video for salacious page views is another thing entirely.

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      • identicon
        Isocrates, 21 Mar 2016 @ 11:00am

        Re: Re: Where do you draw the line?

        I agree, there may not be explicitly a privacy limitation on the first amendment, but the 14th amendment has been interpreted to include just such a thing.

        And more specifically discussing the sex act wasn't wrong, it was the showing of the video, allegedly filmed with no knowledge by the participants, which violates privacy. If Gawker had simply written about it, describing the video they would have won, but by airing something that a reasonable person would assume was private I think they violated the privacy interpretation of the 14th amendment (a lawyer would be better able to discuss that though).

        If there is no expectation of privacy what's to stop the government from causing information that a court has determined is inadmissible due to a fourth amendment violation to be published publicly so as to do harm to the accused's reputation?

        The fallout from this decision will probably spread far, but likely will be moderated and kept to it only covering things that a reasonable person would expect to be private.

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        • icon
          IAmNotYourLawyer (profile), 21 Mar 2016 @ 11:47am

          Re: Re: Re: Where do you draw the line?

          Privacy with respect to the 14th amendment applied to state actors, I thought, which would be inapplicable to a private entity such as Gawker.

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  • identicon
    Anonymous Coward, 21 Mar 2016 @ 7:17am

    Hogan is toxic now, had better not be seen on our property without permission. Thankfully I haven't been exposed to Mr. Hogan's dirty laundry so no quarantine here. That being said my porno comes out next month and will be releasing the trolls a few weeks afterward. Hoping I clear 1/100 of what Mr. Hogan walked away with.

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  • icon
    CK20XX (profile), 21 Mar 2016 @ 8:02am

    These are some good points. I've always appreciated how consistent this site is when dealing with legal matters.

    Still, I think the result of this case is a strike against the paparazzi, not journalism. It SHOULDN'T impact freedom of speech in chilling ways, but... well, we do live in a time where anything and everything is abused, so I understand the concern.

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  • identicon
    John, 21 Mar 2016 @ 8:05am

    I wonder if Techdirt would take this stance if Gawker had published a woman's sex tape.

    reply to this | link to this | view in chronology ]

    • icon
      Sarah Black (profile), 21 Mar 2016 @ 8:10am

      Re:

      Do you think Hulk Hogan was having sex with another man?

      Gawker did publish a woman's sex tape... Hulk Hogan with a Woman.

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    • identicon
      Anonymous Coward, 21 Mar 2016 @ 9:23am

      Re:

      You can look up their coverage of "The Fappening" if you're really interested and not just trying to make an empty, hollow point without any evidence to back it up.

      reply to this | link to this | view in chronology ]

    • identicon
      zip, 21 Mar 2016 @ 10:57am

      Re:

      "I wonder if Techdirt would take this stance if Gawker had published a woman's sex tape."


      Unlikely.

      The problem there is that applying the concept of male/female "equality" will draw scorn and condemnation (even -and especially- from the very people who loudly profess the ideal of equality).

      Unless you want to be tarred and feathered with the "misogynist" label, you must apply a double-standard (while insisting that you don't, since a double-standard is inconsistent with the very notion of equality).

      Consider Wikipedia, for example:

      A few years ago, Gawker published "private" stories about both Terry Bollea/Hulk Hogan and Christine O'Donnell, the aspiring Republican/conservative politician whose career was extinguished as quickly as Pastor Ted Haggard's (as both preached a similar message while similarly leading a double-life in stark contrast)

      Wikipedia editors zealously scrubbed any and all reference to Christine O'Donnell's Gawker story, labeling it "un-newsworthy" -- despite it being the one story that gave an otherwise-unknown person instant and widespread fame and drew comments from many opinion-leaders. Yet, with Hogan, Wikipedia did the exact opposite.

      So it would seem that such stories are "news-worthy" when the subject is male but "not news-worthy" when the subject is female.


      http://gawker.com/5676725/why-we-published-the-christine-odonnell-story

      In a Techdirt story on the so-called "Fappening" -- the leaked celebrity nude photos -- Mike Masnick said this:

      "Let's be clear: it's quite reasonable for those who were victims here to be upset and seek to do something about it, but it's bizarre to pin the blame on Google."


      Unlike the Hogan leak -- in which 1st Amendment issues were the centerpiece of Mike's discussion -- Mike never even once mentioned 1st Amendment issues in the Fappening leak, when the shoe was on the other foot in the male/female divide. That's not meant to condemn Mike as some kind of hypocrite. He's just human like the rest of us, with prejudices consistent with society. Or at least aware that applying supposedly-sacred universal principles evenly and consistently tends to create enemies.

      https://www.techdirt.com/articles/20141002/07015628701/lawyer-victims-nude-celebrity-hacks-t hreatens-google-with-100-million-lawsuit.shtml

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      • icon
        Mike Masnick (profile), 21 Mar 2016 @ 2:58pm

        Re: Re:

        Unlike the Hogan leak -- in which 1st Amendment issues were the centerpiece of Mike's discussion -- Mike never even once mentioned 1st Amendment issues in the Fappening leak, when the shoe was on the other foot in the male/female divide.

        I think the issue was quite different there. There wasn't a lawsuit against a publisher for publishing those images. Just a legal threat against Google, which I noted was a mistake. If the lawsuit had actually gone forward, Google would have been protected.

        If a newspaper had published photos from those leaks, I still think the result should be effectively the same: the public can (and almost certainly should) shun & shame the publication for taking the low road and making such a decision. But a jury shouldn't be deciding if it's "newsworthy" or not.

        Again, I don't condone Gawker's decision to publish. And I don't think it should have published. But I'm not Gawker and I still worry about juries making editorial decisions.

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        • icon
          Whatever (profile), 21 Mar 2016 @ 5:46pm

          Re: Re: Re:

          "Again, I don't condone Gawker's decision to publish. And I don't think it should have published. But I'm not Gawker and I still worry about juries making editorial decisions."

          I don't think it's really that difficult. Gawker could have chosen any number of less confrontational and insulting ways to present the facts. They could have used a still image or two from the tape to "prove" it, if they wanted to authenticate it. They certainly didn't have to run a big chunk of the video, and they certainly didn't have to engage in name calling, baiting, insults, and what seems to be a real campaign against him. They made it personal, which is something journalists are really not support to do. It's about facts and information, not opinion and hatred.

          Should Techdirt be worried? I think there are moments where you may come close to crossing the line from reporting and commentary to insults and degrading people. I have seen instances in the past where I have felt that you are awfully close to having someone go after you on things, likely only stopped by the fact that you have many high end lawyers on speed dial and would certainly fight everything to SCOTUS if need be. You are in some ways worse than a deep pocket defendant, you are a "convinced of my rights and I have enough high end lawyer friends to help me" defendant that would be hard for anyone to take on directly.

          If the Gawker judgement makes you rethink certain stories or to pull back away from personal insults and derision, it might be a good thing for the site. Keeping the focus on the ideas more and the people less is a very good way to avoid problems.

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        • icon
          Blackfiredragon13 (profile), 30 Mar 2016 @ 11:03am

          Re: Re: Re:

          If the sex tape gawker had posted of hulk hogan had been recorded with his consent, I might have been on your side. As it is, fuck gawker, let them burn.

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  • identicon
    Brrrootthheeerrr, 21 Mar 2016 @ 8:12am

    They were the first to release it.

    What Gawker did amounts to posting revenge porn.. If Gawker found the video leaked elsewhere I would side with them.

    Revenge porn is illegal.

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    • identicon
      Anonymous Coward, 21 Mar 2016 @ 8:53am

      Re: They were the first to release it.

      then they should have made that the case against them instead of what they went with.

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  • identicon
    Anonymous Coward, 21 Mar 2016 @ 8:15am

    The jury got it right. Gawker got exactly what it deserved. What techdirt and other morons keep forgetting is that the first amendment is not without limits. When every other media organization refused to publish that video, Gawker decided to publish it, violating the very core ethics that run most media organizations.

    Gawker set itself for liability when they published Hogan's sex video and opened itself up for a lawsuit.

    Even celebrities have the right to privacy and the media can't just publish anything they want and then claim "the first amendment protects us".

    The fact that no other media outlet published the video should tell you something. It's something that should have been posted on PornHub or one of those porn video sites, not on some media organization's website.

    They really crossed the line and I'm glad that a jury finally saw through the ruse and slapped Gawker down for it. Hell, not even TMZ posted it. Hell, even TMZ posted a response after Gawker leaked the video that "We can't show it for legal reasons so we're re-enacting it".

    That should have told Gawker something. Now they are going to pay for publishing it.

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  • identicon
    Roland, 21 Mar 2016 @ 8:18am

    I could understand an argument based on prior restraint. But this isn't a 1stAmendment issue. Nobody (specifically no government) forbade Gawker from publishing the tape. But the 1stAmendment doesn't protect anyone from consequences, including being sued. Did the suit claim laws were broken? I don't think so. Civil suits are often not about laws, but about harm and compensation. Terry was harmed by the actions of the defendants. The award was excessive & will be reduced on appeal. I predict by 50%.

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  • identicon
    Anonymous Coward, 21 Mar 2016 @ 8:32am

    Oh please, just let Gawker and their other shitty click-bait pages die. Especially Gawker who called everybody the worst kind of human being for wanting to look at "The Fappening" pictures (not saying that was wrong) had the nerve to publish parts of a sex tape (that shouldn't even exist and that was stolen/illegally copied) and call it newsworthy doesn't get to go around and complain.

    And apart from this: there is such a thing as privacy, no matter how popular you are. Free speech is fine, but it needs limits and Gawker Media is the kind of company that would publish any kind of crap for clicks. In fact they do, as various of their outlets have repeatedly proven. Go defend something worthy like The Intercept or NPR or whatever.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Mar 2016 @ 8:34am

    Tell me about it. Everybody has an expectation of privacy in their bedroom. It doesn't matter whether someone's sex act was videotaped or not, Gawker made itself liable for damages the moment they decided to publish the video online.

    Even TMZ, who publishes embarrassing videos of celebrities, wouldn't go anywhere near Hogan's video because of legal issues regarding the video. It's obvious that not a single editor at Gawker stepped forward to pull the video from being published and now they are paying dearly for it.

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  • icon
    DeadBolt (profile), 21 Mar 2016 @ 8:41am

    Hey Gawker

    There's a video online of you being bent over a table and reamed by Hulk Hogan & his lawyers. Don't bother trying to get this sex tape removed, as this is an actual newsworthy video.

    Bla, bla, bla

    Get over yourself

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  • identicon
    Anonymous Coward, 21 Mar 2016 @ 8:50am

    So the judge broke his oath to be unbiased and gave his full support to the prosecution while deliberatly crippling the defense's ability to defend themself.

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  • identicon
    Anonymous Coward, 21 Mar 2016 @ 9:03am

    If you believe this is actually a first amendment rights violation so damn much (it's not) then how about you go grab the video and put it up on this site? Make a stand. Be a man....

    (crickets...)

    Ya, I thought so. For all of your hemming and hawing, you are the cowards you so pretend not to be. No free speech for you!

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    • identicon
      Anonymous Anonymous Coward, 21 Mar 2016 @ 9:21am

      Re:

      What have cowardice and good taste to do with one another?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Mar 2016 @ 2:00pm

      Re:

      Ok I will, but you first...crickets...thought so....assclown.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Mar 2016 @ 6:23pm

      Re:

      If you believe this is actually a first amendment rights violation so damn much (it's not) then how about you go grab the video and put it up on this site?

      Tell ya what, instead of trying to tell Mike what to put on his blog, why don't you go put it on your blog? Now, where is that?

      (...crickets...)

      Thought so.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Mar 2016 @ 9:36pm

      Re:

      you are as much a coward as I am

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Mar 2016 @ 9:06am

    We need laws governing the 1st amendment

    The article is right that the media cannot be left along to determine what is news. There should be permits to exercise your first amendment right. The permit should require training and a background check, including being fingerprinted. If you are caught exercising your 1st amendment right without the permit on you, you should go to jail and lose your first amendment right. If you are convicted of certain crimes, including all felonies, you should lose your first amendment right.

    Rights aren't free you know, they require permission to be exercised!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Anonymous Coward, 21 Mar 2016 @ 9:40am

      Re: We need laws governing the 1st amendment

      WTF are you talking about? Maybe in some not so distant future totalitarian regime, but the rights mentioned in the US founding documents are things the Government may NOT trample upon. There is no permission needed to assert those rights, and yes they are free.

      At the same time, everybody is allowed an opinion. You may disagree with something asserted via the First Amendment, but you have no right to quash it. You have the right to not listen, but that makes it difficult to pursue an opposing response because then you wouldn't know precisely what to oppose, like I am doing here.

      Then there is a matter of taste, or maybe morality. In those cases, exercising your right to not listen, view, or participate in any way would be the appropriate action. Stopping the other party is not an appropriate action, which is what you wrongly suggest.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 21 Mar 2016 @ 11:00am

        Re: Re: We need laws governing the 1st amendment

        You know he is applying Second Amendment restrictions to the First Amendment. Right?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Anonymous Coward, 21 Mar 2016 @ 12:03pm

          Re: Re: Re: We need laws governing the 1st amendment

          Actually no, I missed that, but I see what you mean now.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 21 Mar 2016 @ 12:32pm

          Re: Re: Re: We need laws governing the 1st amendment

          Yes I was and I am glad that he didn't notice that and you did. This is to point out the absurdity of the thousands of laws around the 2nd amendment. Either we have a 2nd amendment right or we do not. Any right you have to ask permission to exercise is not a right.

          Now if someone disagrees with an amendment/right, then they should work to get it changed. Creating unconstitutional laws should not be allowed or we might as well ignore the document altogether.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Anonymous Coward, 21 Mar 2016 @ 12:55pm

            Re: Re: Re: Re: We need laws governing the 1st amendment

            I don't disagree with your position. Firearms have about the same ability to do harm as automobiles (which one kills more people annually?). Both require licenses. Hmm?

            Some people abuse the power of both contraptions. The issue is the people, not the contraptions. No easy fix there.

            Governments will be governments. Power will corrupt.

            I tend not to get into Second Amendment discussions because people have a tendency to start foaming at the mouth, both sides.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 21 Mar 2016 @ 3:27pm

              Re: Re: Re: Re: Re: We need laws governing the 1st amendment

              While I am a 2nd amendment supporter, I am also a strict constitutionalist. If the 2nd amendment is to be ignored or laws passed infringing on the right, then where does it end? Can I choose which parts to obey and which to ignore? No, I will be jailed for sure. Can the government ignore the very foundation of our country? Yes, they do it every day. So my point is, we either obey it or we rewrite/amend it, but to ignore it is cause for many, many problems in society.

              reply to this | link to this | view in chronology ]

              • icon
                Whatever (profile), 21 Mar 2016 @ 5:51pm

                Re: Re: Re: Re: Re: Re: We need laws governing the 1st amendment

                " I am also a strict constitutionalist"

                Generally, 2nd amendment supporters are "comma constitutionalist", as the comma is SO important. Remind me again how many Americans are part of a "well armed militia". (slight foaming at the mouth detected).

                The SCOTUS rulings on the 2nd are perhaps some of their poorest work. The current claims by Senator McConnell that any SCOTUS appointment must be approved by the NRA pretty much sums up the problem. One lobby has swayed who is in the court and as a result, the rulings from that court. It's an overwhelming usurpation of the legal system to meet the desires of a certain group.

                reply to this | link to this | view in chronology ]

  • identicon
    Anon, 21 Mar 2016 @ 9:08am

    The Trouble With Prvacy...

    The trouble with privacy is that it rebounds to bite the people who want it. Almost every case where there's a question of "what happened?", government agencies or large corporations say "we can't discuss that case because of privacy laws...". Canada has more strict youth crime privacy restrictions than the USA - which makes sense, your youthful shoplifting misdemeanors should not follow you the rest of your life - but that means that heinous and callous sadistic murderers under 18 are not identified either. Similarly, a case a few years ago in Canada, a man tried to have a gag order imposed on his trial for abusing his stepdaughter because any identifying information about him (such as that eh was a professor, what university and what discipline) would also allow people to identify the victim; she WANTED the information released, but the law did not allow any information to identify her. A recent FOIA request in the US resulted in Beyoncé's name redacted on a description of her concert in Central Park -because privacy, of course.

    Public figures (i.e. Hulk Hogan) are entitled to even less protection in the USA than regular figures, and for a good reason. You cannot make yourself a public figure but then claim the right to censor or legally intimidate anyone who chooses to contradict your public image.

    Is a sex tape "newsworthy"? Obviously millions of viewers thought so. The peccadillos and relationship behavior of celebrities is the standard fare of gossip rags and has been since the days of Fatty Arbuckle or Charlie Chaplin.

    Surely anyone who has any connection with popular culture today knows that (a) people will want to see nude photos and sex tapes if you are a celebrity (or banging one) and (b) your private porn is only as private as the weakest ling. And... (c) with the amount of money at stake, as any paparazzi can attest, a celebrity cannot trust anyone else of a lesser status to be discreet.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Mar 2016 @ 9:28am

    The AC is above is a moron. Requiring anybody to have a permit in order to exercise their constitutional rights is an idiotic thing to do. The constitution of the united states is the premium law document of this country. It establishes the rights for every citizen of this country. It's so defended by law that you don't need a permit. The constitution is the permit.

    It's only when someone violates our "constitutional rights" when it becomes a problem for the courts, where they have to determine is the violator is subject to sanctions by law.

    Gawker simply has no defense. They can;t exactly appeal because they would need to put up a bond to cover the judgment of the jury verdict in case they lost. Simply put, Gawker is screwed. They even said that they wouldn't be able to appeal if the jury awarded a high verdict to Hogan.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Mar 2016 @ 9:39am

    I'm from the UK, and we've got a more tightly-controlled press. There's a "newsworthiness" test here, and we still have just as many godawful celebrity-focused, paparazzi-fueled rags as anywhere else.
    The "newsworthiness" test requires very little more than "There was a celebrity in this public place and they were seen doing this thing", and the story sails out happily onto the pages.

    Had this story been about someone with any stake whatsoever in anything to do with sex, this video could easily have been published in the UK.
    It's no more, though, than Gawker mindlessly invading the privacy of a public figure. There's literally nothing "newsworthy" about it, any more than there would be of a video of "Mike Masnick eating dinner with his family".
    I can't help but think that if such a video were published your own first reaction wouldn't be "Well, I'm a public figure and my privacy's pretty much fucked. No harm done. Carry on, journos!"

    Is it a first amendment issue? Definitely. Will the courts uphold the right of any publisher to publish any facts about anyone, at any time, without any regard to even the concept of privacy? Who can say.

    But if they do, where does that leave your complaints about surveillance?
    This was a private tape, made available by a private individual. If this is a "no foul", then where does that leave your complaints about road cameras tracking the movements of vehicles and individuals? Those are just facts held by private companies, too.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Mar 2016 @ 10:03am

    Gawker got hit for two things:

    1) Actually posting the video
    2) Filling the article with mockery and jokes about Hogan's performance and penis size.

    A public journalistic news site posted literal pornography with the barrier being "Not Safe For Work" in the title and then proceeded to do everything they could to shame one of the participants.

    Gawker is seeking coverage under Freedom of the Press in which case they completely failed to actually report on anything and are facing damages for libel.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Mar 2016 @ 10:30am

    Ok, so when TMZ or Gawker or whoever catches you nom-ing on that big bag of dicks you hide in your closet, and proceeds to smear it all over the internet, it'll be ok because of the first amendment? Freedom of speech and expression is one thing, but getting page hits and monetary gain from someone's stolen content is fucked. Anyone in Bollea's situation would feel the same. There has to be a fucking standard, and sometimes these shit news companies need to learn the hard way; out of their wallets.

    reply to this | link to this | view in chronology ]

  • icon
    Whatever (profile), 21 Mar 2016 @ 11:30am

    thread 603

    I can't say that I am surprised to see your stand on this Mike, but I can honestly say that many of your readers will disagree with you on this one.

    Part of the problem you run into here is the question of privacy. Even as a public figure, this guy does have a right to a private life. Moreover, the privacy of his bedroom (of that of another) is pretty high on the list of things generally not shared with others.

    The material isn't really newsworthy in any real sense, it's not "break news, Hulk is f---king Bubba's wife" interrupting prime time on the major networks. It's not even material you would be likely to see on a major news organization, except perhaps to mention that a sex tape has leaked. You cannot imagine CNN or Fox actually running the video in it's entirety.

    More importantly, the comments and insults in relation to his performance and endowment are certainly NOT newsworthy. They are cheap personal insults hiding behind the guise of journalism.

    Gawker ran the tape not for it's newsworthiness, but rather for it's commercial aspects - that of driving viewers to their website. The continued down the road of insulting and degrading Hogan as part of that process. No news was imparted by any of it, the public is not better informed by reading that someone thinks he has a small dick.

    Gawker lost basically because there was no way to show this was anything other than a nasty combination of profiteering and personal attacks. If they wanted to cover it as news, a couple of second clip that shows Hogan's face would have been more than enough. Running an ongoing series of comments and updates in relation to his endowment (or lack of) doesn't show any interest in informing the people, rather it's about making fun of the subject.

    I do think there is a key element here too: If you are alright with Gawker's actions, why are you so gung ho about due process, warrants, probable cause, and the like? Why are you so upset about location data for a cell phone? After all, private information is just information that hasn't been stolen and made public yet. At the moment it's made public, it's all fine, right? It's Wikileak mentality, we don't care HOW you got there, as long as the end product is right? Do you not see an insane situation where individuals and private companies can do things which are harmful to others, and get away with it under the guise of "journlism", while the same actions by authorities would be considered an insane over reach that someone must lose their job and get sued into the ground for?

    Perhaps the best answer is that in some ways, you face your own issues here. Some of your "team" tend to play close to the edge of personal insult and attack in some of their posts. They (and you as well from time to time) live in the space between snarky, mockery, and the downright personally insulting. Perhaps a judgement like this might make you pull a punch or have one of your team step back from making attacks too personal.

    Maybe that would be a good thing. As many say, there should be a line. My guess is that Gawker, TMZ, and even Techdirt may sometimes are over that imaginary line. Does the line need to be made clearly in law? Perhaps yes.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Mar 2016 @ 2:24pm

      Re: thread 603

      The pain of clicking "insightful" on one of Whatever's comments...

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Mar 2016 @ 2:59pm

      Re: thread 603

      The material isn't really newsworthy in any real sense

      We've discussed the genuine concerns around letting the press decide what is newsworthy, and the genuine dangers of letting the courts decide - but none of us considered the obvious solution: just let Whatever decide!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Mar 2016 @ 3:00pm

      Re: thread 603

      You cannot imagine CNN or Fox actually running the video in it's entirety.

      Ah yes, the gold standards of journalism.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Mar 2016 @ 3:02pm

      Re: thread 603

      They (and you as well from time to time) live in the space between snarky, mockery, and the downright personally insulting.

      But not you, right Whatever? Never you. That's just not your style.

      Does the line need to be made clearly in law? Perhaps yes.

      Oh good call, that'll definitely solve anything and have no unintended consequences.

      reply to this | link to this | view in chronology ]

      • icon
        Whatever (profile), 21 Mar 2016 @ 4:07pm

        Re: Re: thread 603

        "But not you, right Whatever? Never you. That's just not your style."

        It doesn't matter. I am not working from the bully pulpit of being a writer for the site or being a staff member. Instead, I am a section 230 protected anonymous poster. According to Techdirt lore, I can turn the snark up to whatever and never be held liable because, well, Techdirt would never reveal my IP and connection info, right?

        reply to this | link to this | view in chronology ]

  • identicon
    Loki, 21 Mar 2016 @ 11:38am

    If being an obnoxioys, snarky, dismissive (not to mention pretentious) jerk were a crime, Hogan should have had to pay them money.

    reply to this | link to this | view in chronology ]

  • icon
    Eponymous Coward (profile), 21 Mar 2016 @ 11:39am

    Rough analogue?

    Posting hidden cam sex tape on a for-profit website seems a rough analogue to selling stolen property.

    I don't see the First Amendment implications in the case, though framing the verdict in terms of "what constitutes 'newsworthy'" can skew it more in that direction. How about framing it as "Gawker used an illegal recording to drive that clickbait dollar machine"?

    It could've been a video of Hogan and the lady playing Monopoly, still wouldn't change the fact that the recording itself is an illicit thing, apart from definitions of speech rights.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Mar 2016 @ 6:38pm

      Re: Rough analogue?

      Posting hidden cam sex tape on a for-profit website seems a rough analogue to selling stolen property.

      Like when a for-profit news agency reports on something newsworthy that they didn't create themselves, they're selling stolen property. Yeah, I see how that works. Like if an airplane crashes and the for-profit news agency reports on it but they didn't actually create the crash themselves, then they're profiting off a crash that someone else created. That's selling stolen property!

      reply to this | link to this | view in chronology ]

      • icon
        Whatever (profile), 21 Mar 2016 @ 9:04pm

        Re: Re: Rough analogue?

        A plane crash is news. Calling the pilot a short dicked idiot and someone too stupid to fly a plane is libelous. The difference is clear.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 22 Mar 2016 @ 4:18am

          Re: Re: Re: Rough analogue?

          Calling the pilot a short dicked idiot and someone too stupid to fly a plane is libelous.

          You seem to be an idiot too stupid to understand libel law.

          reply to this | link to this | view in chronology ]

  • identicon
    SayWhat, 21 Mar 2016 @ 11:41am

    ummm

    And here I thought Gawker messed up by ignoring the court order to take the video down, as well as the fact that Hogan apparently was not aware of the video being taken and surely did not consent to it being taken and posted.

    And it may not be illegal to be a jerk, but if you act like one on the stand or are inconsistent between your deposition and being on the stand, then yeah, you will likely get no sympathy from the jury. And it is pretty stupid to be flippant or sarcastic when in court.

    Sure they could write a story about it. But showing the video is where they crossed the line, is it not? And then they doubled down by ignoring the court order to take it down, and acting smug and flippant at trial?

    Am I wrong here?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Mar 2016 @ 12:21pm

    bunch of asswipes versus fartknockers and the american people lose again.

    reply to this | link to this | view in chronology ]

  • icon
    Ryunosuke (profile), 21 Mar 2016 @ 1:01pm

    "Well, that's okay, it's just shutting down content that is mean." The issue with the First Amendment and free expression is that the whole reason we have it is to protect content we don't like. Because someday someone's not going to like something you said either.


    SEE also: Snyder vs Phelps - United States Court of Appeals for the Fourth Circuit - (08-1026). Though we may not agree with what is being said, they have a constitutional right for it to be said.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Mar 2016 @ 2:27pm

    I hope this puts a stop to the release of the rumored upcoming Rosanne Barr sex tape.

    reply to this | link to this | view in chronology ]

  • identicon
    Dale, 21 Mar 2016 @ 5:31pm

    Recording somebody without their knowledge, sharing this video on the internet with the express purpose of shaming them, and then refusing to take it down is "a breach of the first amendment"

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Mar 2016 @ 6:42pm

    New rule: The 1st ammendment doesn't cover stuff...

    ...that people don't want other people to know about.

    reply to this | link to this | view in chronology ]

  • identicon
    AC, 21 Mar 2016 @ 7:11pm

    Ummm - privacy

    Saying that there are 'serious first amendment issues' in play here seems completely illogical to me.

    Just because person X has spoken publicly about their sex life in the past does not mean that it suddenly becomes OK to post a video of them having sex with someone.

    By extension this would imply that any subject you speak publicly about is suddenly fair game for people to watch you do privately. I use the bathroom a lot - but now that I have admitted it, does that make it OK for someone to surreptitiously film me doing it and then post it to the internet? No.

    IF (and this is a real if) the person knew they were being filmed doing said private thing and did not object to it, then maybe there it's OK to post the video of that somewhere.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Mar 2016 @ 2:38am

    Honest question, does/should free speech / press freedom always trump the rights of others? Including rights to privacy, etc?

    I was under the impression that "free speech" isn't and has never been carte blanche to do/say anything you want, regardless of the rights of others. It's why you can't defame someone and then go "aha, but the first amendment!"

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Mar 2016 @ 4:20am

      Re:

      It isn't defamation if it's true or an expression of opinion.

      reply to this | link to this | view in chronology ]

      • icon
        TheLoot (profile), 22 Mar 2016 @ 5:27am

        Re: Re:

        No, defamation applies when something is false, even if it's an "opinion".

        I could loudly and repeatedly state my opinion of you is that you traffic children and run a dog fighting ring. I'm not saying it's a fact, just my opinion.

        Do you think the law should protect me for that?

        reply to this | link to this | view in chronology ]

        • icon
          Gwiz (profile), 22 Mar 2016 @ 6:32am

          Re: Re: Re:

          Do you think the law should protect me for that?


          Yes. Just my opinion though :)

          Reason 1: Qualifying your statement with "I'm not saying it's a fact, just my opinion." makes it pretty damn clear that your statement is an opinion.

          Reason 2: Courts look at whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact. Being that you qualified your statement not once, but twice, with "my opinion", most reasonable readers would view that as not a verifiable fact.

          Reason 3: Remark was made on the internet. A few courts have said that statements made in the context of an Internet bulletin board or chat room are highly likely to be opinions or hyperbole.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 22 Mar 2016 @ 10:43am

          Re: Re: Re:

          No, defamation applies when something is false, even if it's an "opinion".

          Oh? And just how can an opinion be false?

          reply to this | link to this | view in chronology ]

  • icon
    TheLoot (profile), 22 Mar 2016 @ 5:29am

    If you wish for any aspect of your personal life that you discuss publicly to be fair game for any and all media outlets to disseminate against your wishes, go ahead and fight this one First Amendment grounds.

    I, however, will be over here respecting the privacy of myself and everyone else.

    reply to this | link to this | view in chronology ]


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