How the Hulk Hogan sex tape may signal doom for press freedom in America

This New Yorker article from last month about the lawsuit between Hulk Hogan and Gawker is about so much more than the lawsuit between Hulk Hogan and Gawker.

In short, if—as is so often claimed now—everyone is a journalist in the Web 2.0+ era, then courts might be more reluctant to trust any one journalist’s news judgement. And that trust used to be the key part of why it was so difficult for public figures to fight the press in court about coverage they didn’t like. Rather than pursue the relatively difficult to prove claim of libel, and possibly blazing a trail that other thin-skinned public officials might be keen to follow, Hogan’s attorneys prevailed by arguing that Hogan had experienced an invasion of privacy. (Yes, even a man, like Hogan, who “had boasted [on the radio] about his sexual prowess, including the size of his penis; claimed numerous extramarital affairs, in his book and in interviews; and even broadcast his marriage-counseling sessions on television” still apparently has “privacy” that it is possible to violate.)

The key issue in a right-to-privacy lawsuit like Hogan’s is whether the published material should be treated as news. “In the past, there was a tendency in courts to defer to the press on what’s newsworthy,” [says] Amy Gajda, the author of “The First Amendment Bubble.”

This kind of deference to journalistic judgment about what constitutes “truthful information of public concern” may be a vestige of a more orderly period in journalistic history. The implicit trust in the news media reflected in these rulings may not extend today to the operators of Web sites, a change that could also have ramifications for traditional news organizations. “Courts are now viewing newsworthiness in a dangerously subjective way to show that today’s Internet-based media sometimes doesn’t have the same ethics constraints as more mainstream media, leading to a more judgmental bench eager to question news value,” Gajda said. “This is what the Gawker case is all about.”

Before the verdict was returned, Gawker’s attorneys worried about the precedent that a Hogan victory might set.

“In this country, it has long been clear that where a person joins in an ongoing conversation, even one about sex, that speech is protected… Otherwise, we would become a nation where powerful celebrities, politicians, and public figures will use our courts to punish people for saying things that they frankly do not like. And we will all be worse off as a result.”

But that could never, happen, right?


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