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

Hulk Hogan with a fan in 2008. Photo (cc) by Rene Passet.
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.

Advertisements

Big Brother Steve is not watching you

I started writing an “Apple’s not really spying on you” post a little while ago and ditched it on the grounds that I don’t fully understand all the issues involved. (That’s a first, eh?)

But I recommend this post at the Center for Democracy and Technology by John Morris, who speculates that the real reason Apple set up your iPhone to track your location is to save on battery life.

I do think there’s less to this controversy than meets the eye (as Morris writes, the location file “normally never leaves your devices”). Still, Apple (and Google, which does the same thing with its Android operating system) could have done better.

Talking Facebook with Emily Rooney

If you have a chance to tune in, I’ll be on “The Emily Rooney Show” today sometime between noon and 1 p.m. on WGBH Radio (87.9 FM) to talk about mounting privacy concerns over Facebook, which I wrote about last week for the Guardian.

Privacy, Facebook and the future of social networking

In my latest for the Guardian, I wonder whether Facebook can survive the crisis created by its self-inflicted privacy fiasco. But I also wonder where Facebook users would go if they decide they’ve had enough.

Restoring privacy rights online

Because the law hasn’t kept up with technology, you have fewer privacy rights for data you store in the cloud than you do for what’s on your computer’s hard drive. Now the New York Times reports that a coalition of privacy groups and companies is seeking to close that loophole.

Here’s the problem. Let’s say you do e-mail the old-fashioned way, downloading all of your mail to your personal computer and storing it there. If a government investigator wants to take a look, he or she first must obtain a search warrant from a judge.

But if you use Gmail or another cloud-based e-mail system, a prosecutor need only serve a subpoena on the company that hosts your account — no judge necessary.

The Center for Democracy and Technology, a lead player in the effort to reform the law, explains all this and more.

Obama job-seekers beware

Ari Herzog, who’d like to work for the Obama administration, is put off by the 63-question, privacy-invading survey that all applicants must fill out.

That, at least, you might have already heard about. But Herzog also discovers that the data you provide to Team Obama’s Change.gov site is stored not on a government server, but with a private contractor, Cluen Corp.

Heavy grading, light blogging

I’m up to my neck in end-of-semester grading, and I’m coming down with a cold. So don’t look for much fresh content this week.

I do want to call your attention to a conference held at Southern New Hampshire University last week on blogging the New Hampshire primary. We ended up talking about everything but that, but that’s OK. The New England News Forum, which sponsored the discussion, has an account here. Christine Stuart of CT News Junkie writes it up here.

Also, Robert Weisman of the Boston Globe reports that Google’s Street View will arrive in Boston today at 10 a.m. I’m figuring there’s a pretty good chance I’ll be captured coming out of the Northeastern Au Bon Pain with a medium regular.

A judicial breach of privacy

Superior Court Judge Allan van Gestel‘s contempt for privacy ought to concern all of us. And his latest is hardly the first time he’s made a dubious decision involving the rights of individuals.

Van Gestel recently ordered the ticket service StubHub to turn over the names of about 13,000 customers to the New England Patriots as part of the team’s crackdown on ticket scalping (Globe story here; Herald story here). In a particularly ridiculous gesture, van Gestel ordered the Patriots not to reveal the names to anyone else. But isn’t it the Patriots from whom those customers were most trying to conceal their identities?

Van Gestel is also the judge who’s blocked Herald columnist Howie Carr from taking his talk show from WRKO (AM 680) to WTKK (96.9 FM). I’m not going to argue the legalities of noncompete clauses, right-to-match provisions and the like. Morally, though, there’s something reprehensible about telling Carr he can’t work for any radio station but WRKO until 2012, even though Carr’s contract expired last month.

And say, your honor, does Carr have any recourse regarding the “Virtual Howie” that’s now online at the WRKO Web site?

Finally, in 2000 I bestowed upon Judge van Gestel a Phoenix Muzzle Award for his mind-boggling decision to impose prior restraint on a group of anti-gay activists who had recorded a sex-education session for teenagers and were playing it for anyone who cared to listen.

What the anti-gay hatemongers did was contemptible. It also happened to be protected by the First Amendment, which van Gestel later acknowledged by removing the media from his order.