The jurors
in the Hulk Hogan sex tape case were not Hulkamaniacs. In awarding
Hogan $140 million, the jurors were sending a clear and urgent message:
respect our privacy. Indeed, both the Hogan and Erin Andrews cases were
about much more than these two plaintiffs. It was a pointed and decisive
response to our own personal vulnerability in a world where everything
is seemingly caught on tape. The cases were about the rest of us.
Privacy v. Freedom of the Press
This case pitted Hogan’s right to privacy against Gawker’s freedom of speech protected by the First Amendment of the U.S. Constitution.
Hogan argued that Gawker should be held liable for the unauthorized publication of the sex tape as he never provided his consent to its distribution. He was not aware he was being taped to begin with, and on top of that, he never gave Gawker the permission to publish the video The publication of the tape was an invasion of Hogan’s privacy and that invasion was highly offensive to a reasonable person.
On the other hand, Gawker argued that the publication of the tape was protected by the First Amendment, which extends protection to matters of public interest or concern. Gawker believed that its First Amendment right to publish news people want to read trumped Hogan’s right to privacy.
As support for its argument, Gawker pointed to Hogan publicly talking to TMZ and Howard Stern about the tape. As well, Hogan was a public figure, had reality television shows and spoke of his sexual prowess. All that made the tape a matter of public interest.
ST. PETERSBURG, FL – MARCH 08: NY POST OUT
Terry Bollea, aka Hulk Hogan, takes the oath in court during his trial
against Gawker Media at the Pinellas County Courthouse on March 8, 2016
in St. Petersburg, Florida. Bollea is taking legal action against Gawker
in a USD 100 million lawsuit for releasing a video of him having sex
with his best friend’s wife. (Photo by John Pendygraft-Pool/Getty
Images)
This case pitted Hogan’s right to privacy against Gawker’s freedom of speech protected by the First Amendment of the U.S. Constitution.
Hogan argued that Gawker should be held liable for the unauthorized publication of the sex tape as he never provided his consent to its distribution. He was not aware he was being taped to begin with, and on top of that, he never gave Gawker the permission to publish the video The publication of the tape was an invasion of Hogan’s privacy and that invasion was highly offensive to a reasonable person.
On the other hand, Gawker argued that the publication of the tape was protected by the First Amendment, which extends protection to matters of public interest or concern. Gawker believed that its First Amendment right to publish news people want to read trumped Hogan’s right to privacy.
As support for its argument, Gawker pointed to Hogan publicly talking to TMZ and Howard Stern about the tape. As well, Hogan was a public figure, had reality television shows and spoke of his sexual prowess. All that made the tape a matter of public interest.
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Catastrophic Monetary Award By Jury
And the jury agreed. While the 7 million hits to Gawker’s site demonstrated people were interested in Hogan’s private life, it did not mean the tape was a matter of legitimate public interest or concern. The jury then made an award of catastrophic monetary damages against Gawker in the amount of $140 million. Of that, the jury made an award of $25 million in punitive damages, which is reserved for conduct that is considered reprehensible or high handed nature.
While the First Amendment provides broad protections, those protections are not absolute.
Legal Implications of the Case
The finding by the jury does not represent a dramatic shift in First Amendment protections. Its application is actually quite narrow: it’s an invasion of privacy to make a tape public that includes a person having sex without that person’s consent. So the notion that the award somehow strips or substantially weakens First Amendment protections is a myth.
Sportscaster and television host Erin
Andrews wipes tears as the verdict is read Monday, March 7, 2016, in
Nashville, Tenn. A jury has awarded Andrews $55 million in her lawsuit
against a stalker who bought a hotel room next to her and secretly
recorded a nude video, finding that the hotel companies and the stalker
shared in the blame. (AP Photo/Mark Humphrey, Pool)
Jurors can be effective when they properly express community values and evolving public sensibilities. And that’s just what they did in the Hogan case, as well as the Erin Andrew case. In the latter trial, Andrews was awarded $55 million after she was secretly taped through a peephole by that creep Michael Barrett.
There is no doubt that the two awards are very high and may well be reduced on appeal (although, if you award say $2 for every view, a jury can get to a multi-million dollar award in a hurry). That being said, the jurors were sending a very clear message that everyone’s privacy must be respected. We all seem to be under constant surveillance. Public is the new private and there seems to be a ubiquitous threat that whatever you do may be published for all to see. The jurors saw themselves in Andrews and Hogan, and that was not a good feeling. People are feeling vulnerable with the risk of their private lives being broadcast for all to consume.
And it was precisely that personal vulnerability that drove jurors to put their collective foot down and say that’s enough.
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