No, the Hulk Hogan verdict doesn’t threaten free speech

Hulk Hogan (or more likely an impersonator) with a fan in 2008. Photo (cc) by Rene Passet.

Based on my layman’s understanding, it seems to me that the $115 million verdict against Gawker in the Hulk Hogan case fits neatly within existing privacy law. I don’t see how it sets any precedent or poses a threat to the First Amendment.

One question that’s worth asking: Will the verdict have a chilling effect on publishers? I don’t see how. In fact, I don’t think any reasonable person would have thought that he or she could publish a video without permission of someone having sex and not risk serious legal action. Gawker is an outlier. Even observers not familiar with Gawker should have understood that there’s something deeply dysfunctional at a news organization whose former editor jokes about child pornography at a deposition.

Our modern understanding of privacy law is rooted in Samuel Warren and Louis Brandeis’s 1890 Harvard Law Review article “The Right to Privacy.” It’s not that long, and it’s a good read. The first of Warren and Brandeis’s six principles—newsworthiness—is what Gawker hung its hat on in its defense. “The right to privacy does not prohibit any publication of matter which is of public or general interest,” Warren and Brandeis write.

Gawker sought to stretch the boundaries of “public or general interest” way past the breaking point. Yes, Hulk Hogan is a public figure, which means he has fewer privacy rights than most of us. And yes, he bragged about his sexual prowess. But it doesn’t follow that it’s therefore OK to post a video of him having sex without getting his and his partner’s permission, regardless of whether he knew he was being recorded.

Legal experts are all over the place, of course, but Daniel Solove, a privacy expert and George Washington University Law professor, begins a commentary in The New York Times with this:

Gawker’s posting of the Hulk Hogan sex video is not speech that the First Amendment right to free speech does or should protect. Sex videos, nude photos and revenge porn—even of famous people—are not newsworthy. They are not of legitimate public concern.

Gawker founder Nick Denton will appeal, and it’s possible that he’ll win. If the verdict stands, though, it should serve as nothing more than a common-sense reminder that though the First Amendment’s protections are vast, they are not limitless.

Note: A Media Nation reader writes: “I am 99.9 percent sure that is not Hulk Hogan in the photo.” She may be right, and I’ve edited the caption accordingly.