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Can Freedom of the Press Survive Hulk Hogan’s Non-Newsworthy Penis?

Can Freedom of the Press Survive Hulk Hogan’s Non-Newsworthy Penis?: © Wally McNamee/CORBIS

© Wally McNamee/CORBIS

In the wake of last Friday’s news that a Florida jury has awarded Hulk Hogan $115 million in his lawsuit against Gawker for publishing excerpts of a video tape of him having sex, the mainstream media spent the weekend trying to make sense of the verdict.

On the one hand, the Associated Press quoted Samantha Barbas, a University at Buffalo law professor and privacy expert as saying, “It’s a huge damage award, and just the idea that a celebrity has a right to privacy that outweighs freedom of the press and the public’s right to know, that’s a huge shift in American free press law. It could potentially be a turning point in law.” Then again, the New York Times reported that the First Amendment experts it talked to said that “even if the verdict against Gawker survived scrutiny in higher courts, any wider effect on press freedoms was likely to be limited.”

So which is it? Will the bone-crushing verdict against Gawker encourage celebrities to use the case to sue media organizations for publishing anything they consider embarrassing? Or does the press carry on pretty much as usual?

Beyond the fact that a precedent won’t be established until the jury’s decision is upheld or rejected on appeal, there are operatic peculiarities to Hulk vs. Gawker that make it a highly dubious legal platform for extrapolation.

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Splash News

For one thing, there is the icky, sui generis weirdness of the video at the heart of the case: low-res black-and-white footage of Hulk Hogan, aka Terry Bollea, having sex with Heather Cole, the then-wife of his then-friend Bubba the Love Sponge Clem, the artist (er, radio shock jock) formerly known as Todd Clem. The exact nature of the mind-fuckery going on here—Clem reportedly encouraged Hulk to bone Heather—is unclear, as is the identity of the leaker of the mid-2000s tape. Gawker ran 101 seconds of excerpts from the 30-minute-ish video in 2012.

And there’s the icky, sui generis weirdness of Gawker circa 2012. Then under the editorship of A.J. Daulerio—who the Florida jury decided is personally liable, along with Gawker’s founder and majority owner Nick Denton—Gawker was affecting a particularly nasty, combative tone. The original post containing the Hulk Hogan sex-tape excerpts was titled, “Even for a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed is Not Safe For Work but Watch it Anyway” and included creepy play-by-play written by Daulerio. “We watch Hulk stand up and clumsily attempt to roll a condom on to his erect penis,” Daulerio wrote, “which, even if it has been ravaged by steroids and middle-age, still appears to be the size of a thermos you’d find in a child’s lunchbox….”

Daulerio, it seems, was having a great time making fun of a public figure—which, of course, is standard operating procedure for Gawker and countless other sites on the internet. The difference in this case is that Gawker published explicit footage (secretly recorded, according to Hulk Hogan) of a private act that took place in a private residence; not just commentary on said footage.

Gawker’s legal team suggested that offering a version of the “truth” about a celebrity’s sex life somehow necessitated the publication of both the commentary and the x-rated source material. The jury disagreed. If there’s a line, in 2016, between the freedom of the press and privacy, they might just have located it.

It turns out that famous people in this time of ubiquitous recording devices are sometimes shot having sex; the mere existence of such footage doesn’t necessarily grant the media an automatic license to publish it. Preserving some boundaries between public and private—even for public figures—is not necessarily tantamount to gagging the press.

As University of Miami law professor Mary Anne Franks put it to the Los Angeles Times, “You should be able to control who sees you naked.” Elsewhere in American pop and legal culture, a consensus seems to be hardening around that very simple concept. Consider the case of Lancaster, Pennsylvania hacker Ryan Collins, who earlier this month admitted guilt and signed a plea deal (including jail time) for his role in “The Fappening”—disseminating private nudes of celebrities including Jennifer Lawrence. Or a jury’s award of $55 million to Fox Sports host Erin Andrews, also earlier this month, who sued a stalker for secretly recording a nude video of her in a hotel.

In his closing arguments Friday morning, Gawker’s lawyer Michael Sullivan insisted that since Hulk Hogan had been famously boastful about his sex life he was fair game. “[Y]ou would be hard pressed to think of anyone other than an actual porn star who has made the attributes of his body parts and his prolific sex life more a part of our public discourse,” Sullivan argued. “He’s done so on television, on radio, in print, and that is why he cannot establish that Gawker’s publication was highly offensive to him…. If the plaintiff were right, if posting a short truthful video of him to accompany a commentary can be the basis for a claim, then the Internet as we know it will cease to exist.”

Not quite. The internet got along just fine when, in the spring of 2013, Gawker pulled the video under a judge’s order. And as Daulerio admitted under cross-examination last Monday, during one of the most surreal moments of a hypersurreal trial, Hulk Hogan’s penis was not, in and of itself, newsworthy.

“Mr. Bollea’s penis had no news value, did it?” Hulk Hogan’s attorney Shane Vogt asked.

“No,” Daulerio replied.

In other words, even the guy responsible for posting the content at the core of the lawsuit—Hulk’s block and tackle in action—had to admit that it wasn’t exactly need-to-know (or need-to-see) First Amendment-grade stuff.

The truth is that the web may have a lot of seriously shady nooks and crannies, but private tapes of celebrities rutting are not central to “the internet as we know it”—and publication of such content is not something the vast majority of media companies both larger and smaller than Gawker are wont to do. Extrapolating from Hulk Hogan vs. Gawker to actual the-public-has-a-right-to-know journalistic practice is just nonsense.

As George Freeman, the executive director of the Media Law Resource Center put it to The New York Times, an endorsement by higher court(s) of Friday’s jury verdict “could be bad for the future of sex tapes, but I’m not sure it would be a threat to anything else.”

Can the Fourth Estate and American democracy carry on without the full exposure of Hulk Hogan’s girthy, non-newsworthy penis?

Yeah, probably.


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