The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A previous post discussed the issue of third-party financing in Hulk Hogan's privacy lawsuit against Gawker. The media site faces a $140 million judgment from a Florida jury for publishing a video of Hogan having doubly-adulterous sex.
Hogan's lawsuit has raised questions over how far concepts of privacy go. One aspect of the question that has not been much discussed is how a widely celebrated progressive legal development—unrelated to privacy law—is in part responsible for Hogan's legal victory over Gawker. Until recently, adultery was a crime in most states, generally a felony. Now, only about 15 states criminalize it. (Most recently, New Hampshire legalized it last year.)
When sexual conduct is a crime, a news outlet reporting on it can hardly be a violation of privacy. Whatever privacy means, it cannot extend to evidence of participation in a crime.
But with the old moralistic laws gone, the presumption of legality that revelations such as Gawker's would have enjoyed goes with them. The converse, of course, is not true: Just because something is legal does not mean it is protected by privacy doctrines. The legalization of sexual conduct is based either on the notion that it is "not the government's business" or that it is "nobody's business." The latter rationale but not the former would mean that decriminalization also supports affirmative privacy protection against private parties.
Take Florida's sex crime laws, for example. There is a statutory offense of "adultery," but it is quite narrow, limited to people living in an "open state of adultery"—exactly what Hogan was not doing. The broader "fornication" prohibition, which would not clearly apply to the conduct, was ruled unconstitutional on equal protection grounds by the Florida Supreme Court in 1979. So there is a tension—not a contradiction—between thinking the Constitution prohibits even handing out a $500 citation for such conduct but that it also prohibits, as Gawker suggests, privacy lawsuits for unwanted publication of videos of such conduct.
Quite misleadingly, Gawker, in one of its filings in the case, argued in passing that the matter is of public interest because "adultery" is "a criminal offense in Florida." See Bollea v. Clem, 2015 WL 10489452 (April 20, 2015). That misrepresents matters, as the offense is not simple adultery. Rather, it is entitled "Living in open adultery," and case law confirms that it does not apply to private adulterous relations.