But it is worth considering the possible effects on publishers if a judgment of this magnitude is allowed to stand. The publication of a videotape of consensual sex between adults is not the most appealing place to plant a First Amendment flag. Gawker will certainly appeal the verdict, as it should (after it pays a bond of up to fifty million dollars), arguing that the jury was unreasonable in finding that Hogan’s right to privacy outweighed Gawker’s right to publish the material, which it believed was of public interest. Gawker has reported that it earned forty-four million dollars in revenue in 2014, and in January Gawker’s owner, Nick Denton, announced that he had sold a portion of his company to investors in order to fund this case. Verdicts of this size can pose an existential risk to a media company. It’s a shocking amount, not least because it’s forty million dollars more than Hogan (whose real name is Terry Bollea) had demanded. Hogan sued Gawker for posting portions of a sex tape it received from an anonymous sender. On Monday afternoon, a Florida jury added twenty-five million dollars in punitive damages to the hundred and fifteen million dollars it had awarded Hulk Hogan, on Friday, in his invasion-of-privacy case against Gawker Media. Photograph by Steve Nesius / New York Post / Pool / AP At the end of the day, Americans should be much more afraid of a world in which the government, or a favorable local jury using the enforcement powers of the government, decides what’s worthy of coverage than one in which Gawker decides.It’s worth considering the possible effects on publishers if the judgment against Gawker in the Hulk Hogan case is allowed to stand. This kind of tough case, in which an editor who resembles Ted Bundy in affect and empathy published a story designed to attract clicks through humiliating an aging C-lister, is exactly when we ought to be most protective of a site’s right to be obnoxious. Why risk a judgment in some unfavorable local court for ‘invading the privacy’ of a local hero?” Most publishers try to avoid risk, and they will shy away from any stories with a whiff of danger-think stuff like the Cosby case, or our various politicians caught in flagrante delicto. If you don’t think that would send a chilling message to all media, you’re wrong. You’d now have a standard that says that whatever the most conservative locality in the country deems as indecent, invasive, or non-newsworthy would be the standard that all of us would have to live by, or risk bankruptcy. “It would be a disaster for all publishers, online and off-everyone from TMZ to The New Yorker. “What is the lesser of two evils? Allowing media to publish tapes depicting a public figure engaged in conduct that he has brought to media attention, even though some of us might personally consider the tapes insufficiently ‘newsworthy’ or ‘highly offensive’? Or allowing the government to saddle the media with potentially bankrupting damages whenever a few people, sitting on a jury, make those inherently subjective assessments?” ![]() Strossen, who spent 19 years as the president of the ACLU, laid out the dilemma. Soon after the verdict, the Observer spoke to one of the most knowledgeable and thoughtful free-speech experts in the country, New York Law School professor of constitutional law Nadine Strossen. The balance between a free press and a right to privacy is a fundamental question for journalists and the nation. Our forefathers understood that yesterday’s outrageous proclamation-that men should be permitted to marry one another or that a black man ought to count for 5/5 of a human being, rather than 3/5-is today’s starting point for a just society. The First Amendment, with its grand and sweeping scope, is designed to protect the most provocative and shocking ideas. We believe Gawker’s decision was wrong and that their editor’s behavior in a taped deposition, in which he concluded with a bored monotone that the only line he would not have crossed would have been if the subject on the tape had been under 4 years old, bordered on sociopathic.īut our Bill of Rights was not written to protect the liberties of those who engage in non-controversial behavior.
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