The Death of Gawker – a Threat to the First Amendment?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Mar 29, 2017

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Gawker LogoAs I blogged about previously, pro-wrestler-turned-reality-TV-star Hulk Hogan sued the news website Gawker when it published excerpts from a sex tape “starring” Hogan.

In 2007, Hogan was apparently filmed without his knowledge by home security cameras when he was having sex with Heather Clem, the wife of his then-friend, radio shock-jock “Bubba the Love Sponge Clem.” 

(According to The New Yorker, the Clems had an “open marriage” and Mr. Clem encouraged Hogan to sleep with his wife.)

As the New York Times reported, a court awarded $140 million in damages against Gawker for invasion of Hogan’s privacy. Hogan later settled with the site for $31 million.

In the course of the dispute, it came out that Silicon Valley billionaire Peter Thiel had financed the lawsuit. Thiel was unhappy that a Gawker blog had outed him as gay ten years earlier.

Gawker filed for bankruptcy in June of 2016 and then sold itself to Univision in August for $135 million.

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A New Era?

According to The New Yorker, the verdict in the Hogan case

heralds a new era, in which judges and jurors see the ribald world of the Internet, rather than the staid realm of newspapers, as the dominant form of journalism.

Since the nineteen-sixties, a series of Supreme Court precedents, most of them involving newspapers, have made libel cases very difficult to win, in part because plaintiffs bear the burden of proving that the stories about them are false. In these cases, the Court came close to saying, but never quite said, that publication of the truth was always protected by the First Amendment.

But, in an age when Internet publishers can, with a few clicks, distribute revenge porn, medical records, and sex tapes—all of it truthful and accurate—courts are having second thoughts about guaranteeing First Amendment protection.

Competing Rights

As I blogged about earlier, there’s a tension between two important civil rights: the right to privacy and freedom of the press.

As The New Yorker points out,

The prospect of liability, perhaps existential in nature, for true stories presents a chilling risk for those who rely on the First Amendment.

But other commentators are more concerned about the privacy issues.

Writing in the New York Times, George Washington University Law School professor Daniel J. Solove said,

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.

Solove is the author of The Future of Reputation: Gossip, Rumor and Privacy on the Internet.

But what “private” matters are a public concern?

In October, then-Presidential-candidate Donald Trump threatened to sue to the New York Times for libel after the newspaper ran an article about two women who accused Trump of touching them inappropriately years ago.

David McCraw, vice president and assistant general counsel of the Times, replied in a public letter to Trump:

The women quoted in our story spoke out on an issue of national importance — indeed, an issue that Mr. Trump himself discussed with the whole nation watching during Sunday night’s presidential debate. It would have been a disservice not just to our readers but to democracy itself to silence their voices.

McCraw also noted that in order for a libel claim to succeed in court, the plaintiff must show that his reputation has been damaged. He said that Trump had boasted in public about his “non-consensual sexual touching of women.”

So far, the President has not followed up on his threat to sue the Times.

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