Online Media

Gawker Media is Fighting for Free Speech—and Its Life

Facing $100 million lawsuit from Hulk Hogan over posting excerpts of and writing about a sex tape featuring the pro-wrestler.

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americasupportsyou.mil via Wikipedia

On Tuesday, July 6, a case opens in a courthouse in Florida that could have profound effects on the exercise of free speech on the Internet: Long-time professional wrestler Hulk Hogan is suing Gawker Media for $100 million—enough to put the company out of business—for posting a 90-second excerpt of a sex tape filmed in 2006. The salaciousness of the story aside, this case has the potential to chill all sorts of reporting on wealthy and powerful individuals based on private documents and materials obtained by members of the press.

In the video Gawker posted, Hogan is shown having sex with Heather Clem, the wife of radio shock job Bubba Clem, also known as "Bubba the Love Sponge." The video was run alongside an October 2012 story written by A.J. Daulerio about the public's fascination with celebrity sex tapes. Daulerio argued counterintuitively that people liked to watch celebrity tapes because the sex is closer to the average sex the public is familiar with than with what we might imagine celebrity sex to be like. Hogan contends that by posting the video, Gawker violated his right to privacy. Gawker says it has a First Amendment right to publish true information about public figures.

If successful, Hogan's suit could be financially ruinous to Gawker. But the case has larger implications for free speech as well. Indeed, it could have serious chilling effects on other news outlets that report unfavorably on celebrities and pseudo-celebrities obsessed with image management while setting a poor precedent on the use of privacy claims to squash reporting on public figures.

On the most basic level, this is a case about Gawker, an independent media company, fighting for its life. But it's also a case about the First Amendment and the right of the press to publish ideas, information, and images that the public wants to read.

At its core, the dispute between Gawker and Hogan is about competing visions of fundamental rights—a nearly unbridled right to free speech (at least theoretically) and a free press vs. the right more and more public figures are asserting to choose which parts of the lives they have made public can be reported on and how.

Hogan's lawyer, Charles Harder, a veteran media/entertainment litigator, argues that it's not a First Amendment case at all. Hundreds of articles were written about the sex tape, he says, and Hogan doesn't have a problem with any one of them.

"Nobody is trying to stop the media from reporting news about a sex tape," Hogan's attorney told Reason. "The only problem we have is that Gawker was able to publish the sex tape itself. And it has the potential, if it's not stopped, to allow that sex tape to continue to be played."

It's the video itself, not what was written about it. That's why Hogan is suing, Harder says. For Hogan, the case is about "the right to privacy, and it's a constitutional right," Harder told Reason, saying he realized the First Amendment "is also a constitutional right" but that it "has limitations" imposed on it.

"You can't defame someone if you're a reporter. There's a law against defamation," says Harder. (Gawker is not being accused of defaming Hulk Hogan.) "You can't print child pornography," Harder continuues. (Gawker is not being accused of printing child pornography.) The First Amendment is not unlimited, says Harder. "There's a limitation on privacy—you can't invade someone's privacy in a way that's against the law."

Specifically, Harder insists Gawker broke Florida's laws against video voyeurism, and specifically the law against video voyeurism dissemination, which Florida's statute defines as distributing images secretly recorded of another person dressing, undressing, or privately exposing their body when they had a reasonable expectation of privacy, for the purpose of amusement, entertainment, sexual arousal, gratification, or profit. (Hogan, whose birth name is Terry Bollea, is a Florida resident, which is the reason the trial is taking place in the Sunshine State.

Gawker's attorneys dispute Harder's characterization of the case, saying the Supreme Court "has been clear that when the news media reports on something that is newsworthy and of public concern they are not liable for" underlying criminal claims, "as long as they didn't have a hand in the illegal interception." There is no evidence Gawker broke the law to acquire the sex tape, and Hogan has not made that claim.

The legal history suggests that Gawker's argument has real merit. Hogan's lawsuit was initially filed in a federal court, which ruled in favor of Gawker's First Amendment rights to publish excerpts of Hulk Hogan's sex tape while reporting on the sex tape and controversy around it. The court said that publication of the tape was newsworthy and served the public interest, and was thus exempt from the publication of private facts tort.

But now the case, a civil one, has been refiled in a Florida state court—and Gawker's attempts to have it sent back to federal court have been rejected. 

The legal particulars are complicated, with Hogan initially charging Gawker with invasion of privacy and inflicting emotional distress, then tacking on an allegation of copyright infringement when a federal judge ruled Hogan had failed to demonstrate irreparable damage and denied a temporary restraining order.  Hogan eventually settled with Bubba Clem, who was responsible for the making of the tape.

Hogan dropped his copyright claim against Gawker and the federal lawsuit, adding Heather Clem, Bubba's wife—and the woman he was having sex with in the video—to the lawsuit, and refiling it in state court.

Because Heather was a resident of Florida like Hogan, adding her "broke diversity." That is, when a case has a plaintiff and a defendant from different jurisdictions (as Hulk Hogan and Gawker are), it must go to federal court. With a defendant from the same state as the plaintiff, the lawsuit can be filed in that state's courts. Hogan's lawyer says there's nothing unusual about this and disputes Gawker's assertion they went "court shopping," saying the previous lawsuit, from 2012, was "a long time ago."

In interviews, Hogan's lawyers rely on the rhetoric of a "constitutional right to privacy." Eugene Volokh, a UCLA law professor and founder of the law blog The Volokh Conspiracy, explained in an email to Reason, that Hogan's case is mostly "about the 'disclosure of private facts' tort, which generally allows lawsuits against private parties that have disclosed private and highly embarrassing facts about people, so long as those facts aren't seen as 'newsworthy.'"

The private facts' tort is limited by the First Amendment, but it's generally been upheld as constitutional when narrowly applied (that is, when the material that is published isn't considered newsworthy or in the public interest). The tort's boundaries are vague, and the Supreme Court has yet to weigh in. Volokh argues that Gawker is likely to face an uphill battle. "Actually showing someone having sex is likely to be seen as private, highly embarrassing, and not newsworthy (absent extremely unusual circumstances)," he told Reason.

Gawker's lawyers say that those circumstances do exist. Indeed, they are exactly why this case is about fundamental First Amendment rights.

In court filings and press statements, Gawker and its lawyers have insisted the matter of the Hogan sex tape was obviously newsworthy and of public concern—and a federal court agreed. Hulk Hogan isn't just a wrestler—he's created a celebrity image based on exploiting public interest in his private life. In particular, Gawker notes Hogan has talked in graphic and extended detail about his sexual exploits repeatedly with the media. 

More importantly, Hogan had appeared numerous times on the satellite radio show of Bubba Clem, the shock jock whose wife he slept with, and in whose house the tape was filmed, to talk about his sex life. When admitting that the sex tape depicted him having sex with Heather Clem, Hogan claimed her husband gave him his permission.

Gawker points to comments Hogan made on The Howard Stern Show in 2011 that he would never sleep with Heather Clem, after he had already had sex with her, a lie uncovered only by the existence of the sex tape. Essentially, Gawker argues, Hogan had made his sex life—and in particular his sex life as it pertained to Heather and Bubba Clem—newsworthy, and a matter of public interest.

"Our basic test is whether the information is both true and interesting," Gawker's founder and publisher Nick Denton explained to Reason, pointing out that Gawker hadn't published leaked nude photos of Jennifer Lawrence, because they did not believe the photos added anything to the story.

"Hulk and Bubba have aired the wrestler's sex life on talk radio," Nick Denton said. "The way they talk about women seems disrespectful, but it's a free country. But—especially when revealing information leaks out—Gawker writers and readers also have a right to their own conversation on the same subject."

Gawker's attorney, Heather Dietrick, notes "the tape was a missing piece in a story that had been widely reported, we didn't have reason to believe that it wasn't real, and we included links to Hogan's public statements surrounding the existence of the tape."

Harder, Hogan's lawyer, argues that Gawker's position amounts to a declaration that "if someone's talked about sex, they've given up their right to privacy."

Harder insists Hogan had no problem with stories about the sex tape that didn't include excerpts from the tape. But he objected to Gawker not calling Hogan or his representatives when they received the tape, saying media outlets have generally always called beforehand. "Sometimes they'll stop, sometimes they'll print anyway," he explained "At least they reach out, at least they're trying to do the right thing in their mind." Not Gawker, according to Harder. "Gawker doesn't operate that type of way. They don't give anyone any warning, they just do what they want to do."

Gawker doesn't deny not reaching out to Hogan first. After all, as Denton explained, Gawker "takes more risks than most: we put the information of our readers before the pandering to subjects."

Harder points to the case over the Pamela Anderson and Tommy Lee sex tape from 13 years ago. That case revolved around a lawsuit by the couple against Internet Entertainment Group (IEG), which sold copies of the sex tape. The lawsuit was initially thrown out by the judge, who said the couple had signed away its rights to the video to IEG but an appeals court reversed the ruling. IEG stopped defending itself in court, and in a summary judgment Anderson and Lee were awarded about $1.4 million, the amount in profit IEG had made from the tape.

It's a very different case than Hulk Hogan's, however, which is about a tape depicting sex Hogan denied having as part of a wider, voluntary disclosure of his sex life to anyone who will listen.

Given Hogan's history of disclosure, the lawsuit against Gawker seems less a response to an invasion of privacy than a response to unfavorable coverage. Hogan certainly hasn't been shy about addressing the tape's contents: According to court filings by Gawker, Hogan made multiple media appearances when the sex tape was first reported on in 2012, talking about his "performance" in it and joking about the size of his penis even as he insisted it was a "serious thing."

Hogan has written elsewhere about his angst at having details of his sex life made public. In his 2010 book My Life Outside the Ring, Hogan wrote about how he felt when his affair with Christiane Plante, a record executive working with his daughter, became a national news story—in large part because of Hogan and his family's reality television show. "I was humiliated. I was angry," wrote Hogan. "I didn't know what to do. There was no one to sue – the story was true. I couldn't even figure out who to be angry with, except for myself for letting it happen in the first place."

But this time, there was someone to sue. First Bubba Clem, who claimed that Hogan knew about the sex tape the entire time, but eventually settled with Hogan for an undisclosed amount. And now Gawker.

There's a huge amount of money at stake if Hogan wins in court, although Hogan's lawyer wouldn't explain how his side came up with the $100 million figure, saying he would leave that explanation for the trial itself.

But the size of the damages may be a problem for Gawker if it loses. Under Florida law, a party found to owe damages must usually post the awarded money as bond while they appeal. Gawker's Denton says his company simply doesn't have that amount of money. So if Gawker wins a ruling in favor of its First Amendment rights on appeal, it may already be too late.

Denton told staffers earlier this month that once the case gets going, he'll "probably be portrayed as a New York pornographer and foreigner"  in front of the Florida jury, but said he hoped "we can make it clear that we're fighting for the truth to hold elites accountable." (Free speech experts say Denton shouldn't worry about being called a pornographer. "Pornography is not a legal term," Jeffrey Douglas, chair of the board of the Free Speech Coalition, Chair Emeritus of the First Amendment Lawyers Association and a criminal defense lawyer, explained to Reason. "The characterization would have only emotional impact, not legal.")

Denton has also said the company didn't have $100 million to pay if it loses the lawsuit, and that it would need "somebody with deeper pockets and hopefully principles in order to keep it both commercially viable and editorially viable."  In short, this means Gawker media, which owns Gawker as well as a suite of other feisty online media properties, would need an outside backer in order to survive.

Hogan's lawyer, Harder, says there may be a way out. He told Reason that there is another offer is on the table—one that would get Hogan to drop the lawsuit without paying $100 million. But Harder wouldn't share the details, saying it was for the lawyers and not for the media.

Dietrick, Gawker's lawyer, responded that she wasn't sure what Harder was referring to. But she did offer that "you don't need to be a First Amendment scholar to understand that a celebrity doesn't get to publicly talk about a topic again and again and then wield the power of the courts to exercise a line item veto over how the media tells the story."

Yesterday, First Look Media filed a "motion to intervene" in the trial, seeking to keep it open to the public. "The overarching principles at stake—that the public is entitled to know what takes place in the courts of the state of Florida, and the First Amendment right of Intervenors to report what happens in the courtroom to its readers," the motion reads, "transcend this case alone."

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  1. Ooooo, this’ll put progs in a bind. They support Hulk and they’ve run loyal media members out of the business (sure there are more, but they won’t be happy with you). They support Gawker and they’ve just made case law that revenge porn is a protected first amendment right.

    1. You underestimate their capacity for doublethink, and overestimate the strength of precedent in the modern court.

      1. Yes indeed, and even though this Florida case is a mere civil dispute, one key precedent that will be sure to influence the court’s rulings as the litigation moves forward is America’s leading criminal satire case, documented at:

        http://raphaelgolbtrial.wordpress.com/

        There, New York’s highest court has held that while it is okay to cause “momentary discomfort or embarrassment,” if you go further and seek to “harm a reputation,” then you have committed a crime. Because in New York it is understand that conduct potentially harmful to a reputation should be punished with prison. It should also be observed that Internet trolling has now been criminalized in New Zealand, an excellent development that will hopefully lead to comparable legislation throughout the United States. See:

        http://www.nbr.co.nz/article/h…..-ck-174934

  2. Gawker has danced on the edge of libel and defamation since the very beginning. And given their obsessive push to make revenge porn illegal, I’m very OK with them losing this suit. A $100M hoist on his own retard couldn’t happen to a better hypocrite than Denton. The next time he rears his vile head in media maybe he’ll think twice about hiring so many semi-useful idiots.

    1. I must admit being torn between really wanting to see Denton get his ass handed to him, and any restriction on Amendemnt I protections…

      1. It would be more cool if Denton saw the light on the road to Damascus and became less liberal and more libertarian. 😉

        1. No it wouldn’t, I wouldn’t want someone like that associated with libertarianism. It would be worse than WAR.

          1. But better than GWAR being associated with libertarianism.

        2. What little snippets I’ve head of the guy, fat chance that happens.

          1. Well, he hides his money in off-shore accounts, so he’s at least a libertarian for himself.

            1. I am always entertained by the number of liberals and socialists I know who still hire a CPA to reduce their taxes…

      2. I’m in the same boat. This is one of those difficult tests of one’s principles, because goddamn would I love to see Gawker burned to the ground. The demise of Jezebel alone would amuse me for years.

        1. Hey, remember when The Fappening was the mass rape via eyeballs of all those celebrities?

        2. Im less concerned with the 1st amendment implications. We are talking about a video of a couple having sex that appears to have been recorded without the approval of both parties – which makes the tape illegal in FL (a 2 party consent state). Gawkers claim that there is a public interest in seeing Hulk Hogan banging someones wife is preposterous. The claim *might* have some water if Hulk were a politician, but he is a washed up wrestler and reality TV star.

          Gawker is the worst kind of tabloid – a vicious, partisan, inaccurate piss-yellow rag. They thought they could make a few bucks showing illegal porn. The claim such an amoral cash grab makes them “journalists” is as shameful as it is preposterous.

          NOTE: I have supported nearly every pornographer to ever be charged criminally and I supported Larry Flynt in his pissing match with Falwell – to me, the real historic part of this lawsuit is that it is the first such suit I can remember in which I sided with the plaintiff.

          1. OTHER NOTE: I should disclaim my previous statements such that I can imagine circumstances arising at trial that would change my opinion of the case. For example I think the case would be much different if it turned out that Hulk knowingly created the tape as pornography to be sold the issues change from privacy invasion to royalties. I have a hard time imagining a circumstance in which Gawker has a leg to stand on, but all we have to go on is the prelimenary media blitz, which can be misleading.

          2. Yep, Reason seems full of it here.

            While it is of course critical to protect actual First Amendment rights, there’s no legitimate reason to _show_ chunks of the tape. That seems purely an invasion of privacy. (Though perhaps not, with slightly different facts.)

            Sure, _write_ about the tape all day long, if it makes you happy, but this is different. And, no, it’s not somehow fine ’cause he’s a lewd fellow. There just have to be some boundaries somewhere … and sorry, but you’ve not just wandered over one, but waltzed over it with glee.

    2. ” A $100M hoist on his own retard ”

      I have zero interest in this matter other than something to occupy my mind while having a couple cups of coffe this AM.

      But I love that line and seek permission to use it in the future.

      1. Please do.

      2. Just wash it off first. You don’t know where SugarFree’s hands have been.

        1. It’s this sort of prissy attitude that gets you stink-palmed.

          1. Hugh is just looking for a nice solid Danza slap.

    3. And what is wrong with them pushing to make revenge porn illegal?

  3. Yet another case where there are no good guys.

    1. My only concern is that the 1st amendment should be absolute. I don’t believe in slander and libel; they are too nebulous and subjective. I don’t even believe in fraud as a crime, because if it assists another crime, such as theft, there’s your criminal charge, and if there is no harm, then there is no crime.

      But the participants in this case — I couldn’t be less excited. If Hulk doesn’t like having his lies exposed to the public, he shouldn’t lie. If he doesn’t like his body parts being exposed on video, he shouldn’t make the video. And if Gawker wants to be on the cutting edge of voyeurism for their readers’ sake, regardless of the legal ramifications, well, a statist caught up by state coercion is just delicious tears.

      1. Libel and slander are common law civil matters between private parties – Amendment I is a prohibition on the G (“Congress shall make no law…) swinging the force hammer.

        1. I don’t care how libel and slander are defined. I don’t think speech of any sort should be any matter for courts. I don’t care if someone stands on a corner and shouts that I am the devil’s spawn, or sends out letters to all businesses that I am a thief and embezzler. I do not think that should ever be a matter for courts under any circumstances.

          And I also don’t care that libel and slander are “private” matters. The big G will step into the matter sooner or later, at the point of a gun if pushed.

          1. “You, sirrah, are a direct lineal descendant of the impenitent thief on the Cross!”

            *waits for lawsuit or dueling proposition*

      2. “If he doesn’t like his body parts being exposed on video, he shouldn’t make the video.”

        Its my understanding that this is one of the matters under contention – in other worda Hogan claims he did not give consent to be filmed or to have the video circulated. Wouldnt (or shouldnt) he have *some* rights to the circulation of such a video? What if someone takes a polaroid of their butt and puts it in a safe? If someone breaks into the house and puts it on the internet should the picture taker have no recourse to have the image removed?

        1. Gee, I dunno… Breaking and Entering?

  4. I hate that this case is being argued over the fairly narrow idea of its “newsworthiness”. One of the reasons I despise Robert Bork was his assertion that, since the purpose of the First Amendment was to foster healthy political debate, it is only political speech and only “healthy” political speech that is protected by the First. Just as freedom of the press doesn’t apply only to news-gathering and – disseminating organizations, free speech doesn’t apply just to “meaningful” speech. The right to keep and bear arms isn’t obviated by the size and strength of the US military. Once you start limiting liberty based on the idea that the liberty itself serves some greater purpose, it’s no longer liberty.

    1. Good point.

  5. If only Heather had snapped into a Slim Jim instead. Oh Yeah!

  6. It’s pretty ironic that this involves Gawker, which published articles calling for the jailing of “climate change deniers.”

    1. Gawker also argued that anybody looking at the hacked photos of a naked Jennifer Lawrence were one step away from being rapists for looking at photos that weren’t intended for public view.

      It’s probably too much to expect some sort of consistency.

  7. “Hogan’s lawyer, Harder”

    Huh-huh huh, huh-huh, Harder, huh-huh.

  8. As Reaxxion mentionned:”Get your popcorn, this is gonna be good”.
    http://www.reaxxion.com/10007/…..is-privacy

    1. Aren’t these the people that write articles stating that transgender people are mentally-ill?

      http://www.reaxxion.com/3654/h…..g-e-sports

  9. 90 seconds? Typical Hogan. Ric Flair’s sex tape would be 60 minutes.

    1. But Hogan is like 6’5″ and has 24 inch pythons. Only yokels in Atlanta want to see a Flair tape.

  10. I have it on good authority that Warty is actually Hulk Hogan’s handle here.

  11. I enjoy that you refer to him as “Hogan” throughout the article, which is the second half of the name of a fictional character he played for pro wrestling. Shouldn’t you say “Bollea” instead?

    http://thebiglead.com/2015/06/…..r-bandana/

    He even has to go by his real name in the trial, for what it’s worth.

    1. Can he at least call the Judge “Brother”?

      1. I hope so.

        1. From his cell.

          The judge wouldn’t want to be addressed by a familiar term like “brother.” Especially if the judge is a chick.

  12. Can’t say I’m entirely comfortable with the idea of losing any and all entitlement to privacy by virtue of becoming famous or “notable”. Seems like an easy way to commit legal blackmail as long as you use a media proxy. In this particular case the cat was already out of the bag anyway, but “Welp, if you didn’t want your tax records published, you shouldn’t have hired a CPA who leaked them to the media…” seems defensible under the logic Ed is employing here… and that’s pretty fucked.

    1. If receiving stolen goods is a crime, how is publishing material that was “stolen” also not a crime?

      1. First of all there’s no allegation this video was stolen. Bubba made it, not Hulk.

        1. That’s a really big point, so can you elaborate? If this Bubba guy owned the tape and Hogan was aware it was being made, then Hogan doesn’t have a leg to stand on. Or was this some sort of “hidden camera to catch his wife cheating” thing?

          1. Good point. I’m not that familiar with the case, but I was inferring (possibly incorrectly) that Hogan wasn’t aware of the tape. I believe by the time Gawker ran with it the tape was already leaked anyway, but the logic that they’d have been entitled to run it in any case because Hogan is a public figure still strikes me as somewhat wrong. Like I said, you can picture a headline something along the lines of “Prominent tax policy analyst took questionable deductions” along with 10 years worth of hacked/stolen/leaked private tax returns.

            1. Right. You don’t have fewer rights just because you are famous.

              1. Bullshit. I don’t care what you’re doing, you don’t come into my house with an expectation of privacy from me. That’s fucked up, even from a libertarian perspective.

                Even at that, Bubba owned the tape and leaked it, unless Gawker is just the largest in a class-action suit against everyone who invaded Hogan’s privacy, Bubba should be the one getting taken to the mat. Even if it is class-action, which it’s not, Bubba should be named specifically.

                Assuming they did zero leg work on the story; Gawker was trafficking in ill-gotten goods at worst.

                Hogan not only doesn’t have a leg to stand on, any leg he could stand on is out of reach and he’s unwilling or unable to tag in the partner that might actually have an expectation of privacy in Bubba’s house.

              2. On the other hand Hogan is a media whore along the lines of Paris Hilton and those Kardashians, IMHO.

                Those who live by the sword often die by it.

                One of the links here links to an article that says the tape was from a security camera. Hogan claims the husband gave his permission for Hogan to be sexing his wife up but the husband isn’t quoted on that matter.

                If it was a security cam the the wifey probably knew it was there and knew she was being recorded. It might have been put there by the husband who suspected Hogan was doing his wife and wanted to catch them.

                1. “you don’t come into my house with an expectation of privacy from me”

                  Regardless of whether such a claim is legitimate Florida is a two party consent state. At least in Florida, surreptitious recordings are not legal.

                  But focusing on the ethical point here, if someone uses the bathroom in your house you think you have a right to record them doing their business, publish it and profit by it without their authorization? Such a claim is a lot of things but prima facie libertarian is not one of them.

  13. It’s really uncomfortable being on the same side of the argument as Gawker, under even these circumstances.

    1. I feel the same. It’s like siding with Larry Flynt. But we gotta do it.

      1. At least Larry Flynt is a pretty big free speech absolutist. However dirty you might find him, he’s pretty honest about who he is. Defending Gawker is more like defending the Illinois Nazis, even if we defend their right to to free speech, they’re still going to be assholes to us afterwards.

  14. I don’t know if I should blame (or thank) either Hulk Hogan or Vince McMann for ruining my interest in professional wrestling. I can even remember the exact match that turned my 12-year old self against if forever. Hogan vs. Andre cage match. After the usual theatrics, both Hogan and Andre are climbing the cage. They leap off the fence and they both reach the floor in near unison. I am then subjected to 10 minutes of split screen slo-mo replay of the two jumping onto the floor, trying to determine who touched first. Such a boring and pointless 10 minutes of my life that I swore off pro wrestling forever.

    But I probably shouldn’t blame them. It’s obvious to me that my brain’s ability to be entertained by such obvious fakery would soon end. Not that the wrestlers aren’t incredibly strong, talented at what they do, and subject themselves to pain and injury. Don’t hurt me David Schultz!

    1. Wait, wait…fakery? When did this start happening?

      1. Theatrics in general or just pro-wrestling/”sports entertain… nevermind.

        Rome, the answer is Ancient Rome.

    2. That wasn’t Andre the Giant. It was Paul “Mr. Wonderful” Orndorff.

  15. Ugh, why do I have to be on Gawker’s side? I hate everything about that group. But they absolutely have to win this case.

    Goddamnit.

  16. Don’t make sex-tapes if you don’t want them to be seen. Duh. Fuck him.

  17. This is truly a case where I am torn. I loathe Gawker, but am a free-speech extremist. But goddamn do I loathe Gawker. Their classy, end-zone speech after the gay marriage verdict was what almost pushed me over the edge…

    1. This is truly a case where I am torn. I loathe Gawker, but am a free-speech extremist. But goddamn do I loathe Gawker. Their classy, end-zone speech after the gay marriage verdict was what almost pushed me over the edge…

      So best case…..Gawker wins the case but moments later Gawker media HQ and all who work their are obliterated by a meteor strike?

      1. ….work there

        shit!

        1. Yes to both…

      2. Well, they did unionize…

  18. I’m conflicted on this. Let’s take Hogan at his word. If he wasn’t famous, but instead was just some random guy. Someone illegally gets this guy’s sex tape. Someone else publishes it. Seems like that is certainly an invasion of privacy to me. What if, instead of a sex tape, it had been private financial information? Medical information?

    But at the same time there is an obvious slippery slope. Giving someone veto power over what is reported about them is a great way to destroy any ability to hold bad actors accountable for their actions.

    I think I side with Gawker here, but I’m sympathetic to the counterargument.

    1. How about if we just charge Denton with a felony?

      Following states like California, Arizona lawmakers passed a bill this week that makes it a felony to post sexual photos or videos of a person without their consent.

      Signed by Governor Jan Brewer on Wednesday, Arizona’s law is notable because it classifies revenge porn as an actual felony, not a misdemeanor. According to the Christian Science Monitor, this makes it one of the most severe revenge porn laws in the country.

      Under Arizona’s law, the court does not require “proof that the defendant intended to cause emotional distress,” which protects victims from former partners who might just want to make money from distributing sexually explicit images. Reuters reports:

      Under the law, perpetrators of so-called revenge porn would face a presumptive sentence of 18 months in prison for the crime, which could be increased to 2.5 years if the person shown in the image can be recognized.

      All emph mine.

      1. Yes, those laws are unfortunate. Revenge porn should be handled by civil lawsuits and case law, not criminal law.

    2. Was it illegally made? Was it illegally sold? Was it illegally bought? Did the publisher know it was illegally made, sold, or bought?

      If there was a crime, who was the victim, who was the perp? If anyone else in that chain knew about the criminal act, or helped with it, they are criminals too. But don’t go dragging unknowing participants into it.

      I also don’t believe in any difference between criminal and civil trials. If there is a victim, let them prosecute and let them collect restitution from the criminal. If Hogan is only arguing “unfair to talk about me, only I get to do that” then fuck off, slaver, take your falsities back to the wrassling rings..

    3. The First Amendment prohibits laws that interfere with free speech. It does not prohibit private parties from recovering damages in private lawsuits due to speech in civil lawsuits. We have a fairly broad interpretation, and a tradition, of free speech that limits this ability as well, and that’s a good thing, but the boundaries between consequence-free speech and speech that entitles someone to recover damages are ultimately decided by case law.

  19. Think they’ll get a woodchipper-worthy judge?

  20. A few categories of speech have less protection than others. Posting somebody’s sex video is not one of them.

  21. There is nothing wrong in principle with civil lawsuits over speech people engage in; that’s not a violation of the First Amendment.

    I think Hogan should lose this lawsuit, but it is reasonable for a court to look at the facts and make that determination. And that seems to be what’s happening here.

  22. Gawker versus Hulk Hogan.

    Hmmm….

    Isn’t there some way they can both lose?

  23. On Monday, July 5

    Monday is July 6.

      1. Date and Time are artificial human constructs, and it’s ridiculous that you bigoted sheep keep trying to force your conformist values on me.

  24. “we can make it clear that we’re fighting for the truth to hold elites accountable.”

    By publishing a sex tape.

    Seriously?

  25. My understanding is that Hulk Hogan already sued Bubba the Love Sponge for taping him, and that Hulk Hogan has already accepted a settlement from Bubba the Love Sponge for creating the tape–which included Bubba the Love Sponge publicly apologizing for creating the tape.

    Seems to me that Hulk Hogan exhausted his legitimate options with that.

    This is like a local news team showing video of an armed robbery in progress from a liquor store security camera.

    1. Thanks, that clears up my conflict. It sounds like the proper person to go after was Bubba, which Hogan did. If Gawker just published something that was already out there and had no hand in creating it w/out Hogan’s permission, they should walk.

  26. Je Suis Gawker!

    Ha ha ha! No, I’m not. I could say they deserve everything that is coming to them, wringing my hands in satisfaction, but I can’t because I know they did not commit an act of aggression against anyone and because I am not a little Marxian dimwit like those that infest the halls at Gawker Headquarters.

  27. Maybe you shouldn’t be surprised when bad things happen as a result of banging someone else’s wife.

  28. The folks at Gawker are gigantic hypocrites for attacking the dissemination of compromising photos and videos of female celebrities while, at the same exact time, themselves distributing this sex tape. Personally, I’d love to see Gawker run out of business, but this may not be the best way for that to happen.

  29. What of “revenge porn ban” laws?

  30. Technical legal point, Ed. You have things backward.

    When the plaintiff and defendant are from different states, the case may be brought in federal court, but need not be. But when the plaintiff and defendant are from the same state, the case must be brought in state court.

  31. I absolutely love it. Very rarely is there so obviously a massive contradiction you get to watch someone dance around.

    They refused to post Fappening pictures because the ladies and lady-defending boys would have lost their shit, yet Hulk Hogan is male and they don’t like him so fuck it. I like many of the posts on Gawker (Deadspin actually), but watching them dance around their double standard bullshit is fantastic.

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