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Privacy, the First Amendment and Hulk Hogan's $140.1 million jury verdict.

I. INTRODUCTION                                      1
II. BRIEF SUMMARY OF THE FACTS                       2
III. THE BROADER IMPLICATIONS OF
        BOLLEA V. GAWKER MEDIA                       4
IV. AUTHORITIES SUPPORTING THE RIGHT OF PRIVACY      5
V. AUTHORITIES SUPPORTING THE FIRST AMENDMENT       18
VI. PROFESSOR MIKE FOLEY ON JOURNALISM ETHICS       28
VII. OPINIONS OF LEGAL EXPERTS                      34
VIII. YOUGOV.COM SURVEY, MARCH 2016                 36
IX. CONCLUSION                                      36


I. INTRODUCTION

On October 15, 2012, Terry Bollea, professionally known as "Hulk Hogan," filed a $100 million lawsuit against Gawker Media, LLC, its founder/CEO Nick Denton, and its then-Editor-in-Chief of gossip website Gawker.com, A. J. Daulerio. In March 2016, a Florida jury returned a verdict in his favor in the amount of $55 million in economic damages, plus S60 million in emotional distress damages, plus punitive damages of $15 million against Gawker Media, $10 million against Denton, and $100,000 against Daulerio, for a total award of $140.1 million.

This article discusses the legal authorities that apply to the right of privacy and the First Amendment to the U.S. Constitution, within the context of video, audio or photographic content that is private in nature and exposed publicly, against the consent of the subject. While the Bollea case happens to involve a worldwide celebrity, the legal authorities discussed herein apply to celebrities and non-celebrities alike--all of whom are deemed by courts to have privacy rights and, conversely, all of whom can be the fair subject of news reporting.

The vast majority of legal authorities cited herein form the basis of the legal arguments by both Bollea and Gawker in their respective court papers supporting and opposing numerous motions in the underlying case, including motions for a temporary injunction, motions to dismiss, motions for summary judgment, and various pre-trial and post-trial motions. These same legal authorities are expected to form the basis of Gawker's appeal to the Florida appellate courts and beyond. This article includes additional legal authorities, for a more comprehensive discussion, as well as a short discussion about journalism ethics, as explained by Professor Mike Foley of the University of Florida College of Journalism and Communications. This article is intended to serve as a guide to any attorney, judge or other legal practitioner on the laws pertaining to the rights of privacy and the First Amendment to the U.S. Constitution.

II. BRIEF SUMMARY OF THE FACTS

In mid-2007, Bollea was recorded without his knowledge or consent in a private bedroom, without clothing, engaged in private activities with a woman. The woman was Heather Clem, the wife of Bollea's best friend, Bubba the Love Sponge Clem. The encounter occurred with the encouragement of Bubba and Heather. Bollea was unaware the encounter had been recorded until five years later, in 2012.

In late September 2012, Gawker received from an alleged "anonymous" source, a DVD containing a 30-minute video of the encounter. Gawker edited it into a 1 minute 41 second "highlight reel" (Daulerio's term) which included about ten seconds of footage of Bollea fully naked, receiving oral sex, and engaging in sexual intercourse. The video also included a minute and a half of the private bedroom conversations, before and after sex, of Bollea and Ms. Clem.

Gawker posted the video the afternoon of October 4, 2012. The next morning, Bollea's counsel immediately demanded the video be removed from Gawker.com, and said that if it was removed, Bollea would consider the matter resolved. Gawker refused to remove the video. Millions of viewers flocked to Gawker.com to watch the video, and the web traffic was driving revenue and converts to the Gawker family of websites (eight in all). Gawker kept the video at Gawker.com, knowing that Bollea had been secretly filmed. The video remained at Gawker.com for six months, and more than 60 other websites (mostly porn sites) lifted the same 1:41 video from Gawker.com and played it at their own websites. More than 7 million people watched the video on the Internet: 2.5 million at Gawker.com and 4.5 million at the other sites.

Bollea's complaint, filed on October 15, 2012 (eleven days after the video was posted), alleged causes of action for invasion of privacy/public disclosure of private facts, invasion of privacy/intrusion, misappropriation of right of publicity, and violation of Florida's Secured Communications Act (also known as the "Wiretap Act"). In March 2016, nearly three-and-a-half years after suit was filed, the jury entered its award.

III. THE BROADER IMPLICATIONS OF BOLLEA V. GAWKER MEDIA

Two weeks before the March 2016 Bollea v. Gawker Media jury trial, former ESPN on-camera reporter Erin Andrews (1) went to trial against a person who secretly recorded her naked in a hotel room and published the video recordings to the Internet. She also brought claims against the hotel that allowed the person who recorded her to book a hotel room immediately adjacent to Andrews' room. On March 7, 2016, the jury awarded Andrews $28 million against the person who recorded her, and $26 million against the hotel. (2)

The Bollea and Andrews situations have many similarities: both involve a famous person recorded naked in a private bedroom without his or her knowledge or consent, where the footage was posted to the Internet and millions of people watched it there. The same defenses claimed by Gawker in the Bollea v. Gawker Media case potentially could be raised by the person who filmed Andrews and posted the footage to the Internet--or any so-called "news" outlets that might choose to publish the most explicit, uncensored "excerpts" of the footage showing Andrews fully naked in her hotel room--in the name of "news reporting."

The Bollea and Andrews situations are not uncommon. In this era of smart phones that also make high definition video recordings and have 24/7 Internet access allowing such recordings to be posted to the Internet with one "click," all persons in modern society are at risk of their private moments being secretly recorded and posted for millions of people to watch--in the name of "the news" or otherwise. These situations are becoming increasingly common, for both celebrities and non-celebrities alike. Celebrities like Eric Dane, Rebecca Gayheart, Fred Durst, Brett Favre and Seth Rollins, among others, have been the victims of Gawker Media's posting of nude images of them without permission. (3) Gawker Media also has posted nudity and sexual activity of hundreds of non-celebrities. As one example, a young woman who was very intoxicated and recorded without her consent having sex on the bathroom floor of an Indiana sports bar begged Gawker Media for the footage to be removed. Gawker's executives responded to her with callous disregard, claiming they were "reporting the news," and those emails were presented during the Bollea v. Gawker Media trial as an example of Gawker's "news reporting" activities.

The point being: the legal authorities discussed herein have broad implications on modern society, including all individuals, and all media companies that post private recordings of people without their consent.

IV. AUTHORITIES SUPPORTING THE RIGHT OF PRIVACY

The law of privacy has been discussed and implemented over the course of centuries. The Founding Fathers did not draft a Constitutional provision to ensure privacy generally, but did include Constitutional provisions ensuring privacy in certain respects, including prohibiting unreasonable search and seizure (the Fourth Amendment to the U.S. Constitution: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."), and prohibiting the quartering of troops in private homes in times of peace (the Third Amendment). (4)

In 1890, law partners Samuel D. Warren and Louis D. Brandeis (who later became a Justice of the U.S. Supreme Court) wrote a landmark law review article entitled The Right to Privacy, published in the Harvard Law Review. (5) Their words are as applicable today as they were in 1890:
Recent inventions and business methods call attention to the next step
which must be taken for the protection of the person, and for securing
to the individual what Judge Cooley calls the right "to be let alone."
Instantaneous photographs and newspaper enterprise have invaded the
sacred precincts of private and domestic life; and numerous mechanical
devices threaten to make good the prediction that "what is whispered in
the closet shall be proclaimed from the house-tops." For years there
has been a feeling that the law must afford some remedy for the
unauthorized circulation of portraits of private persons; and the evil
of invasion of privacy by the newspapers, long keenly felt....

The press is overstepping in every direction the obvious bounds of
propriety and of decency. Gossip is no longer the resource of the idle
and of the vicious, but has become a trade, which is pursued with
industry as well as effrontery. To satisfy a prurient taste the details
of sexual relations are spread broadcast in the columns of the daily
papers....

The intensity and complexity of life, attendant upon advancing
civilization, have rendered necessary some retreat from the world, and
man, under the refining influence of culture, has become more sensitive
to publicity, so that solitude and privacy have become more essential
to the individual; but modern enterprise and invention have, through
invasions upon his privacy, subjected him to mental pain and distress,
far greater than could be inflicted by mere bodily injury....

It is our purpose to consider whether the existing law affords a
principle which can properly be invoked to protect the privacy of the
individual; and, if it does, what the nature and extent of such
protection is....

The design of the law must be to protect those persons with whose
affairs the community has no legitimate concern, from being dragged
into an undesirable and undesired publicity and to protect all persons,
whatsoever; their position or station, from having matters which they
may properly prefer to keep private, made public against their will. It
is the unwarranted invasion of individual privacy which is reprehended,
and to be, so far as possible, prevented....

Peculiarities of manner and person, which in the ordinary individual
should be free from comment, may acquire a public importance, if found
in a candidate for public office....

Some things all men alike are entitled to keep from popular curiosity,
whether in public life or not, while others are only private because
the persons concerned have not assumed a position which makes their
doings legitimate matters of public investigation. (6)


In 1960, William L. Prosser, Dean of the University of California, Berkeley, School of Law, wrote another landmark law review article published in the California Law Review simply titled: Privacy. (7) The article discussed the origin of the 1890 article by Warren and Brandeis, and summarized the numerous state court decisions following their lead and creating a common law right of publicity in the majority of U.S. states. Prosser's article also identified four different types of privacy invasions: intrusion upon seclusion, public disclosure of private facts, false light invasion of privacy, and unauthorized appropriation of name or likeness. (8) The article discussed each separate category privacy invasion, in detail, and advocated a separate tort for each. (9) The Restatement (Second) of Torts, Section 652, followed Dean Prosser's recommendation of four separate privacy torts, and several states have followed the Restatement in establishing same.

The U.S. Supreme Court has held that sexual privacy, both within and outside the institution of marriage, is entitled to protection under the U.S. Constitution. (10)

Several states also have enacted provisions within their respective Constitutions to ensure a general right of privacy. Perhaps the most comprehensive and strongly worded of all state Constitutions, from the standpoint of the individual, arguably is found in article I, section 1 of the California Constitution:
All people are by nature free and independent and have inalienable
rights. Among these are enjoying and defending life and liberty,
acquiring, possessing, and protecting property, and pursuing and
obtaining safety, happiness, and privacy. (11)


The California Supreme Court, citing article I, section 1 of the California Constitution, has held: "California accords privacy the constitutional status of an 'inalienable right,' on a par with defending life and possessing property. California's privacy protection similarly embraces sexual relations." (12)

The Florida Constitution has a similar provision in article I, section 23:
Right of privacy. Every natural person has the right to be let alone
and free from governmental intrusion into the person's private life
except as otherwise provided herein. This section shall not be
construed to limit the public's right of access to public records and
meetings as provided by law. (13)


The RESTATEMENT (SECOND) OF TORTS, Section 652, likewise recognizes separate torts for each. (14) Section 652A, citing to the various other torts and corresponding sections of the Restatement, provides:
652A. General Principle

One who invades the right of privacy of another is subject to liability
for the resulting harm to the interests of the other.

The right of privacy is invaded by:
(a) unreasonable intrusion upon the seclusion of another, as stated in
652B; or
(b) appropriation of the other's name or likeness, as stated in 652C; or
(c) unreasonable publicity given to the other's private life, as stated
in 652D; or
(d) publicity that unreasonably places the other in a false light
before the public,

as stated in 652E. (15)


Section 652D provides:
One who gives publicity to a matter concerning the private life of
another is subject to liability to the other for invasion of his
privacy, if the matter publicized is of a kind that (a) would be highly
offensive to a reasonable person, and (b) is not of legitimate concern
to the public. (16)


Comment H to Section 652D provides:
There may be some intimate details of her life, such as sexual
relations, which even the actress is entitled to keep to herself. In
determining what is a matter of legitimate public interest, account
must be taken of the customs and conventions of the community; and in
the last analysis what is proper becomes a matter of the community
mores.

The line is to be drawn when the publicity ceases to be the giving of
information to which the public is entitled, and becomes a morbid and
sensational prying into private lives for its own sake, with which a
reasonable member of the public, with decent standards, would say he
had no concern....

The limitations... are those of common decency, having due regard to
the freedom of the press and its reasonable leeway to choose what it
will tell the public, but also due regard to the feelings of the
individual and the harm that will be done to him by the exposure. (17)


On this point, the Ninth Circuit U.S. Court of Appeal held in Virgil v. Time, Inc.:
Does the spirit of the Bill of Rights require that individuals be free
to pry into unnewsworthy private affairs of their fellowmen? In our
view it does not. In our view, fairly defined areas of privacy must
have the protection of law if quality of life is to continue to be
reasonably acceptable. The public's right to know is, then, subject to
reasonable limitations so far as concerns the private facts of its
individual members.

If the public has no right to know, can it yet be said that the press
has a constitutional right to inquire and to inform? In our view it
cannot. It is because the public has a right to know that the press has
a function to inquire and to inform. The press, then, cannot be said to
have any right to give information greater than the extent to which the
public is entitled to have information. (18)


The Virgil court, citing Section 652D of the Restatement (Second) of Torts, and quoting Comment F (later renumbered Comment H) thereto ("[t]he line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern"), further held:
In our judgment such a standard for newsworthiness [Comment F, later
renumbered Comment H, to Section 652D] does not offend the First
Amendment... it avoids unduly limiting the breathing space needed by
the press for the exercise of effective editorial judgment. See Miami
Herald Publishing C., v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41
L.Ed.2d 730 (1974). The definition of the 'line to be drawn' is not as
clear as one would wish but it expresses the distinction between that
which is of legitimate public interest and that which is not as well as
we could do.... In our view this the Restatement has done. Accordingly,
we accept the Restatement's standard for newsworthiness. (19)


In Virgil, the Ninth Circuit further held:
[A]s matter of law, in the public interest to know about some area of
activity, it does not necessarily follow that it is in the public
interest to know private facts about the persons who engage in that
activity. The fact that they engage in an activity in which the public
can be said to have a general interest does not render every aspect of
their lives subject to public disclosure. Most persons are connected
with some activity, vocational or avocational, as to which the public
can be said as matter of law to have a legitimate interest or
curiosity. To hold as matter of law that private facts as to such
persons are also within the area of legitimate public interest could
indirectly expose everyone's private life to public view. (20)


In Toffoloni v. LFP Publishing Group, LLC, (21) the Eleventh Circuit U.S. Court of Appeals held that a magazine's publication of private, nude photographs of Nancy Benoit, a female professional wrestler who was murdered, was not protected by the First Amendment, and not a matter of public concern. Even though the murder was a matter of public concern, and Benoit was a public figure, the photographs themselves were not matters of public concern. Relying on Comment H to Section 652D of the Restatement (Second) of Torts, among other legal authorities, the Eleventh Circuit held that the magazine "may not make public private, nude images of Benoit that she, allegedly, expressly did not wish made public, simply because she once wished to be a model and was then murdered." (22)
The photographs of Benoit published by LFP neither relate to the
incident of public concern conceptually [her murder] nor correspond
with the time period during which Benoit was rendered, against her
will, the subject of public scrutiny. The photographs bear no
relevance--let alone "substantial relevance"--to the "matter of
legitimate interest." On these facts, were we to hold otherwise, LFP
would be free to publish any nude photographs of almost anyone without
their permission, simply because the fact that they were caught nude on
camera strikes someone as "newsworthy." Surely that debases the very
concept of a right to privacy. (23)


In Gilbert v. Med. Econ. Co., (24) the Tenth Circuit U.S. Court of Appeals held:
Because each member of our society at some time engages in an activity
that fairly could be characterized as a matter of legitimate public
concern, to permit that activity to open the door to exposure of any
truthful secret about that person would render meaningless the tort of
public disclosure of private facts.... [the First Amendment] does not
require such a result. Therefore, to properly balance freedom of the
press against the right of privacy, every private fact disclosed in an
otherwise truthful, newsworthy publication must have some substantial
relevance to a matter of legitimate public interest.


In Haynes v. Alfred A. Knopf, Inc., (25) the Seventh Circuit U.S. Court of Appeals held:

An individual, and more pertinently the community, is most offended by the publication of intimate personal facts when the community has no interest in them beyond the voyeuristic thrill of penetrating the wall of privacy that surrounds a stranger.

In Michaels v. Internet Entertainment. Group ("Michaels I"), (26) the U.S. District Court in Los Angeles held that Pamela Anderson Lee and Brett Michaels were entitled to a preliminary injunction prohibiting the distribution of their privately-recorded, stolen sex tape, and rejected the First Amendment defense by the company that sought to commercially exploit the tape against their objections. The court specifically held the tape itself was not legitimate news, and the contents of the tape were not matters of public concern.
It is also clear that Michaels has a privacy interest in his sex life.
While Michaels's voluntary assumption of fame as a rock star throws
open his private life to some extent, even people who voluntarily enter
the public sphere retain a privacy interest in the most intimate
details of their lives.... the private matter at issue here is not the
fact that Lee and Michaels were romantically involved. Because they
sought fame, Lee and Michaels must tolerate some public exposure of the
fact of their involvement.... The fact recorded on the tape, however,
is not that Lee and Michaels were romantically involved, but rather the
visual and aural details of their sexual relations, facts which are
ordinarily considered private even for celebrities. (27)


But see, Michaels v. Internet Entertainment Group, Inc. ("Michaels II"), (28) (same case, holding that short, non-explicit excerpts of the footage played during a Hard Copy television news broadcast were not actionable and protected by the First Amendment), discussed in greater detail in Section IV.

In Bartnicki v. Vopper, (29) U.S. Supreme Court held that media could publish excerpts of secret recordings of union negotiators discussing union negotiations with management, but all nine Justices held that the Court's holding did not mean that secret recordings of purely personal activity can be published, and a majority of five Justices said that the publication of illegally recorded private celebrity sex tapes is not protected by the First Amendment [emphasis added]. Justice Stevens' majority opinion exempted from its First Amendment holding "domestic gossip or other information of purely private concern." (30) Justice Breyer, speaking for himself and Justice O'Connor, stated that the First Amendment did not protect the publication of truly private matters involving celebrities or public figures, because those matters were not matters of public concern:
This is not to say that the Constitution requires anyone, including
public figures, to give up entirely the right to private communication,
i.e., communication free from telephone taps or interceptions. But the
subject matter of the conversation at issue here is far removed from
that in situations where the media publicizes truly private
matters. (31)


Justice Breyer supported this proposition by citing Michaels I, entering an injunction order against the publication of the stolen Pamela Anderson-Bret Michaels sex tape.

Chief Justice Rehnquist, speaking for himself and Justices Scalia and Thomas, stated that the First Amendment did not protect the publication of illegal recordings at all (whether or not the recordings contain matters of public concern) and that laws prohibiting such publications were constitutional:
These laws are content neutral; they only regulate information that was
illegally obtained; they do not restrict republication of what is
already in the public domain; they impose no special burdens upon the
media; they have a scienter requirement [i.e., a requirement that the
journalist know or should know that the recording is illegal] to
provide fair warning; and they promote the privacy and free speech of
those using cellular telephones. It is hard to imagine a more narrowly
tailored prohibition of the disclosure of illegally intercepted
communications, and it distorts our precedents to review these statutes
under the often fatal standard of strict scrutiny. These laws therefore
should be upheld if they further a substantial governmental interest
unrelated to the suppression of free speech, and they do. (32)


In City of San Diego v. Roe, the U.S. Supreme Court held that a police officer's recording of himself engaged in sexual activity while wearing a police uniform was not a matter of public concern: "[T]here is no difficulty in concluding that Roe's expression does not qualify as a matter of public concern under any view of the public concern test.... Roe's activities did nothing to inform the public about any aspect of the [San Diego Police Department's] functioning or operation." (33)

In Judge v. Saltz Plastic Surgery, the Utah Court of Appeals reversed a summary judgment for a defendant, where the plaintiff had alleged that the defendant distributed to the media topless "before and after" photos of the plaintiff, a patient at the defendant's cosmetic surgery clinic. (34) The trial court ruled that there was no triable issue of fact on the issues of whether the photos disclosed a private fact, and whether they were a matter of public concern, because the plaintiff had voluntarily disclosed to the media that she had obtained cosmetic surgery. (35)

The Utah appellate court reversed on two grounds. First, the issue of whether private facts are a matter of public concern touches on community standards and is a jury question: "[T]he determination of whether the private facts were sufficiently related to a matter of public interest to have themselves become matters of public interest necessarily implicated factual questions... respecting the state of community mores." (36) So long as "reasonable minds could differ as to whether the private facts have become matters of legitimate public interest," it is improper to grant even a summary judgment for the defendant, let alone a motion to dismiss. (37)

Second, reasonable minds can differ as to whether a person's decision to put some private information into the public eye waives privacy rights as to other private information. "On the record before us, we conclude that reasonable minds could differ on whether appearing on television to discuss cosmetic surgery gives rise to a legitimate public interest in viewing explicit photographic documentation of the results of the interviewee's surgery." (38) This is based on the fact that there are legitimate reasons why a person might want to allow one otherwise private fact to become public while protecting other related private facts.
Appearances can change. A college student may decide to play on the
"skins" side of a "shirts versus skins" basketball game in a public
park. By doing so, he may have made a public fact of what his torso
looked like on that day in that park such that publication of a picture
taken while he was playing would not be actionable. But by doffing his
shirt, he would not lose the ability to argue that a future picture of
his torso exposes a private fact. Our shirtless basketball player may
be willing to make a public fact of his exercise-honed torso in his
twenties but swim with his shirt on thirty years later to avoid
revealing extra pounds, medical scars, or now-regretted tattoos. (39)


In Shulman v. Group W Productions, Inc., (40) the California Supreme Court held: "[a]ll material that might attract readers or viewers is not, simply by virtue of its attractiveness, of legitimate public interest." (41)

In the Bollea v. Gawker Media case, Gawker claimed that because it posted only 1:41 of a larger 30-minute video, and the posted video contained "only" 10 seconds of footage of full frontal nudity and explicit sexual activity, the publication supposedly was "newsworthy" and protected. (42) Legal authorities, however, generally do not support that position. In Harper & Row Publishers, Inc. v. Nation Enterprises, (43) for example, the U.S. Supreme Court rejected a fair use argument in a copyright case that relied on the number of pages that were not published, because the defendant took the "heart of the book" by publishing without permission a small portion of Gerald Ford's memoirs that dealt with the resignation and pardon of President Richard Nixon.

Moreover, in Zucchini v. Scripps-Howard Broadcasting Co., (44) the U.S. Supreme Court held that a TV news broadcast of the meaningful part of a "human cannonball" act showing the performer being shot from the cannon and landing into a net was actionable as a violation of right of publicity and unprotected by the First Amendment.

By analogy, Gawker's posting of 1:41 of surreptitiously-recorded footage from a bedroom, including 10 seconds of nudity and sex, and a minute-and-a-half of private bedroom conversations, is not somehow "too little" to be actionable.

In Aguilar v. Avis Rent a Car Sys., Inc., (45) the California Court of Appeal upheld an injunction against the use of racial epithets in a workplace which constituted unprotected harassment. In its reasoning, the Court discussed that the First Amendment rights of free speech and of the press is not absolute but rather has been limited by numerous courts for a variety of reasons, and its abuse may be punished:
Although stated in broad terms, the right to free speech is not
absolute. Near v. Minnesota (1931) 283 U.S. 697, 708, 51 S.Ct. 625, 75
L.Ed. 1357 ["Liberty of speech and of the press is also not an absolute
right, and the state may punish its abuse. Whitney v. California
[(1927) 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095]; Stromberg v.
California [(1931) 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117]."].)

Many crimes can consist solely of spoken words, such as soliciting a
bribe (Pen.Code, [section]653f), perjury (Pen.Code, [section]118), or
making a terrorist threat (Pen. Code, [section]422). As we stated in In
re M.S. (1995) 10 Cal.4th 698, 42 Cal.Rptr.2d 355, 896 P.2d 1365:
"[T]he state may penalize threats, even those consisting of pure
speech, provided the relevant statute singles out for punishment
threats falling outside the scope of First Amendment protection.

In this context, the goal of the First Amendment is to protect
expression that engages in some fashion in public dialogue, that is,
'"communication in which the participants seek to persuade, or are
persuaded; communication which is about changing or maintaining
beliefs, or taking or refusing to take action on the basis of one's
beliefs.... "' (46)

Civil wrongs also may consist solely of spoken words, such as slander
and intentional infliction of emotional distress. A statute that is
otherwise valid, and is not aimed at protected expression, does not
conflict with the First Amendment simply because the statute can be
violated by the use of spoken words or other expressive activity.
(Roberts v. United States Jaycees (1984) 468 U.S. 609, 628, 104 S.Ct.
3244, 82 L.Ed.2d 462 ["[A]cts of invidious discrimination in the
distribution of publicly available goods, services, and other
advantages cause unique evils that government has a compelling interest
to prevent--wholly apart from the point of view such conduct may
transmit. Accordingly, like violence or other types of potentially
expressive activities that produce special harms distinct from their
communicative impact, such practices are entitled to no constitutional
protection."].)....

The foregoing high court decisions recognize that once a court has
found that a specific pattern of speech is unlawful, an injunctive
order prohibiting the repetition, perpetuation, or continuation of that
practice is not a prohibited "prior restraint" of speech. (47)


Other courts have upheld injunctions against speech, when such speech violates a person's privacy or other rights. (48)

V. AUTHORITIES SUPPORTING THE FIRST AMENDMENT

In Bollea v. Gawker Media, LLC, (49) the U.S. District Court declined to issue a preliminary injunction barring continued publication of the Gawker-edited Terry Bollea sex video, holding:
Plaintiff's public persona, including the publicity he and his family
derived from a television reality show detailing their personal life,
his own book describing an affair he had during his marriage, prior
reports by other parties of the existence and content of the Video, and
Plaintiff's own public discussion of issues relating to his marriage,
sex life, and the Video all demonstrate that the Video is a subject of
general interest and concern to the community. (50)


"As such, Defendants' decision to post excerpts of the Video online is appropriately left to editorial discretion, particularly when viewed in connection with a request for a prior restraint." (51) "Defendants in this case have not attempted to sell the Video and only posted excerpts of the Video in conjunction with the news reporting function of Defendants' website." (52)
In the context of privacy law, the privilege to publish facts of
legitimate public concern extends beyond the dissemination of news to
information concerning interesting phases of human activity even when
the individuals thus exposed did not seek or have attempted to avoid
publicity.... The privilege is broad and extends beyond subjects of
political or public affairs to all matters of the kind customarily
regarded as 'news' and all matters giving information to the public for
purposes of education, amusement or enlightenment, where the public may
reasonably be expected to have a legitimate interest in what is
published. (53)


"[N]ewsworthiness is defined broadly to include not only matters of public policy, but any matter of public concern, including the accomplishments, everyday lives, and romantic involvements of famous people." (54)

In Gawker Media, LLC v. Bollea, (55) the Florida Court of Appeal likewise reversed the state trial court's order granting a temporary injunction prohibiting continued publication of Gawker-edited Terry Bollea sex video. The court held:
Mr. Bollea, better known by his ring name Hulk Hogan, enjoyed the
spotlight as a professional wrestler, and he and his family were
depicted in a reality television show detailing their personal lives.
Mr. Bollea openly discussed an affair he had while married to Linda
Bollea in his published autobiography and otherwise discussed his
family, marriage, and sex life through various media outlets. Further,
prior to the publication at issue in this appeal, there were numerous
reports by various media outlets regarding the existence and
dissemination of the Sex Tape, some including still shots
therefrom. (56)


"Here, the written report and video excerpts are linked to a matter of public concern--Mr. Bollea's extramarital affair and the video evidence of such--as there was ongoing public discussion about the affair and the Sex Tape, including by Mr. Bollea himself." (57)

In Michaels II, (58) the U.S. District Court granted summary judgment in favor of a television production company with respect to a public disclosure of private facts claim by Anderson and Michaels relating to Hard Copy broadcast that included brief, non-explicit excerpts from the Anderson-Michaels sex tape:
Newsworthiness is defined broadly to include not only matters of public
policy, but any matter of public concern, including the
accomplishments, everyday lives, and romantic involvements of famous
people...

The privilege to report newsworthy information is not without limit.
Where the publicity is so offensive as to constitute a morbid and
sensational prying into private lives for its own sake, it serves no
legitimate public interest and is not deserving of protection. The
plaintiff has the burden of proof to demonstrate that the matters
publicized are not newsworthy, or that the depth of intrusion in
private matters was 'in great disproportion to their relevance' to
matters of public concern...

The Court has reviewed the tape of the Hard Copy broadcast, which
contains eight brief excerpts, purportedly from the Tape, ranging in
length from two to five seconds. The excerpts are blurry, and in some
places the video image was manipulated to make body parts
unrecognizable...

Because the privacy tort is concerned with intrusion into the
plaintiff's affairs rather than with unfair competition with the
plaintiff's exploitation of his own name and likeness, the
newsworthiness privilege in this context also includes a balancing of
the depth of the intrusion against the relevance of the matters
broadcast to matters of legitimate public concern.... The factors to be
considered include (1) the social value of the facts published; (2)
whether the plaintiff voluntarily became involved in public life;
and (3) for private persons involuntarily caught up in events of public
interest, whether a substantial relationship or nexus exists between
the matters published and matters of legitimate public concern...

Although the social value of the facts published is arguably very low,
it is clearly established that 'newsworthiness' is not limited to
'news' in the narrow sense of reports of current events. It extends
also to the use of names, likenesses or facts in giving information to
the public for purposes of education, amusement or enlightenment, when
the public may reasonably be expected to have a legitimate interest in
what is published.... As discussed above, California courts have held
that the romantic interests of celebrities are matters of legitimate
public concern...

[T]he private facts depicted in the Hard Copy broadcast have a
substantial nexus to a matter of legitimate public interest: IEG's
plans to disseminate the Tape on the Internet, and the dispute between
TEG, Michaels and Lee over that dissemination. The fact that the Tape
depicts sex acts is clearly part of the story regarding IEG's plans and
Lee's legal battles with IEG. (59)


The court did not rule for Paramount on all grounds offered. The court rejected the argument that because other media had described the contents of the tape, Paramount could broadcast excerpts. "The description of these acts by a radio commentator, however, is not equivalent to the broadcast of the actual images on television." (60)

Further, the case ultimately turned on balancing the public's concern with Pamela Anderson Lee's sex life against the intrusiveness of what Hard Copy actually showed, which was heavily censored.
The video images presented in the Hard Copy broadcast--while highly
suggestive--were brief and revealed little in the way of nudity or
explicit sexual acts. Given the uncontroverted fact that images of Lee
engaged in sex are already widely available, the intrusiveness of these
images is slight when balanced against Paramount's First Amendment
interest in conveying information about the imminent release of the
Tape, and the effect of such imminent release on Lee's entertainment
career (61)


In Cape Publications, Inc. v. Hitchner, (62) the Florida Supreme Court reversed summary judgment for the plaintiff in a public disclosure of private facts case, holding that a reporter's publication of certain contents of the case file of a closed child abuse prosecution, including interviews with the child which contained explicit descriptions of the alleged abuse, was protected as a matter of public concern. A Florida statute prohibited the disclosure of the contents of such files. Nonetheless, the Court held that the statute could not constitutionally create a cause of action against a media defendant with respect to a matter of public concern. The Court's opinion contains a broadside against the public disclosure tort:
We disagree with the court's analysis and we believe that the facts
here are clearly a matter of legitimate public concern. The developing
law surrounding the private-facts tort recognizes that the requirement
of lack of public concern is a formidable obstacle. In fact, the
'newsworthiness' defense has been recognized by commentators as being
so broad as to nearly swallow the tort. (63)


However, the remainder of the opinion emphasizes the public's right to receive information about the judicial process and characterizes the holding as narrow: "we hold narrowly that the information disclosed by Cape was of legitimate public concern." (64)

In Snyder v. Phelps, (65) the U.S. Supreme Court affirmed a Court of Appeals ruling reversing a jury verdict for intrusion upon seclusion and intentional infliction of emotional distress, based on the defendants' homophobic picketing of a military funeral with grossly offensive signs. The Court held that appellate courts must independently review the record on the issue of public concern.
Deciding whether speech is of public or private concern requires us to
examine the content, form, and context of that speech, as revealed by
the whole record.... As in other First Amendment cases, the court is
obligated to make an independent examination of the whole record in
order to make sure that the judgment does not constitute a forbidden
intrusion on the field of free expression (66)


The court further held that even offensive speech can meet the public concern test.
Speech deals with matters of public concern when it can be fairly
considered as relating to any matter of political, social, or other
concern to the community..., or when it is a subject of legitimate news
interest; that is, a subject of general interest and of value and
concern to the public... The arguably inappropriate or controversial
character of a statement is irrelevant to the question whether it deals
with a matter of public concern. (67)


The public concern test is contextual. "In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said." (68)

On the other hand, the dispositive holding of Snyder was that the signs, while they contained offensive content, undoubtedly discussed an important public issue.
While these messages may fall short of refined social or political
commentary, the issues they highlight--the political and moral conduct
of the United States and its citizens, the fate of our Nation,
homosexuality in the military, and scandals involving the Catholic
clergy--are matters of public import. The signs certainly convey
Westboro's position on those issues, in a manner designed, unlike the
private speech in Dun & Bradstreet, to reach as broad a public audience
as possible. And even if a few of the signs--such as 'You're Going to
Hell' and 'God Hates You'--were viewed as containing messages related
to Matthew Snyder or the Snyders specifically, that would not change
the fact that the overall thrust and dominant theme of Westboro's
demonstration spoke to broader public issues. (69)


The Snyder court concluded by stating: "Our holding today is narrow." (70)

In Cape Publications v. Bridges, (71) a kidnapping victim who was forced to strip by her kidnapper was photographed escaping during a police raid clad only in a dish towel. The Court did not describe what was visible directly, but said it was "little more than" what would be seen had the plaintiff "been wearing a bikini." (72) The photo, found on Google, shows her chest and pelvic areas covered by a dish towel, but the rest of her uncovered. The Florida State Court of Appeal reversed a jury verdict for the plaintiff for public disclosure of private facts, holding:
Although publication of the photograph, which won industry awards,
could be considered by some to be in bad taste, the law in Florida
seems settled that where one becomes an actor in an occurrence of
public interest, it is not an invasion of her right to privacy to
publish her photograph with an account of such occurrence. Just because
the story and the photograph may be embarrassing or distressful to the
plaintiff does not mean the newspaper cannot publish what is otherwise
newsworthy.


Authorized publicity, customarily regarded as "news," includes publications concerning crimes, arrests, police raids, suicides, marriages, divorces, accidents, fires, catastrophes of nature, narcotics related deaths, rare diseases, etc. and many other matters of genuine popular appeal. (74) "Courts should be reluctant to interfere with a newspaper's privilege to publish news in the public interest." (75)

However, the Court emphasized the fact that the newspaper was not attempting to titillate its readers. (76) "There were other more revealing photographs taken which were not published. The published photograph is more a depiction of grief, fright, emotional tension and flight than it is an appeal to other sensual appetites." (77)

In Cinel v. Connick, (78) the Fifth Circuit U.S. Court of Appeals affirmed the dismissal of a public disclosure claim arising out of a broadcast of portions of a video of a priest engaging in a sexual encounter with two young men on the syndicated television program, (79) Now It Can Be Told. The Court held that the public concern test protected the broadcast. (80) The Court implied that at least one of the young men on the tape was underage and that the tape could be child pornography. (81) The plaintiff conceded that the story was one of public concern but argued that the excerpts of the video could not be broadcasted. (82) The court rejected this argument. (83)
We disagree. The materials broadcast by the Appellees were
substantially related to Appellant's story. Perhaps the use of the
materials reflected the media's insensitivity, and no doubt Appellant
was embarrassed, but we are not prepared to make editorial decisions
for the media regarding information directly related to matters of
public concern.


The court did not discuss how explicit the excerpts were, though one can probably assume that because they were aired on syndicated television, they were not explicit.

In Anderson v. Suiters, (85) the Tenth Circuit U.S. Court of Appeals affirmed summary judgment for media defendants in a public disclosure case arising out of a matter that concerned the broadcast of portions of a video recording of a rape made by the rapist.
The media defendants have satisfied this inquiry because the videotape
was substantially relevant to a matter of legitimate public interest:
the prosecution of Anderson's husband, a local attorney, for rape, as
well as for other sexual assault charges involving multiple victims. By
the time the media defendants aired the excerpts from the videotape,
Anderson's husband had already been arrested for at least one other
rape... Anderson's allegation that she had been raped by her husband
increased the likelihood that there was support for the other pending
charges against him. Information concerning the possible guilt or
innocence of a person charged with a crime is a classic example of a
matter of legitimate public concern.... By airing the videotape, the
media defendants heightened the report's impact and credibility by
demonstrating that the allegations rested on a firm evidentiary
foundation and that the reporter had access to reliable
information. (86)


The court held that material such as this must be taken as a whole when determining whether it meets the public concern test. (87)

Anderson argues the videotape was highly personal and intimate in nature. While the sensitive nature of the material might make its disclosure highly offensive to a reasonable person, that does not make the videotape any less newsworthy so long as the material as a whole is substantially relevant to a legitimate matter of public concern. (88)

The Anderson court went out of its way to state that its ruling was limited, and had the excerpts been more explicit, the case could have gone the other way:
By holding that the content of the media defendants' newscast was
substantially relevant to a matter of legitimate public interest, we do
not imply that members of the media may escape any liability for
publication of private facts whenever the subject of the publication is
an alleged perpetrator of a crime. Some facts about the victim of an
alleged crime will be too tangential to the prosecution of the
perpetrator to be substantially relevant to a matter of legitimate
public interest. Wherever that line may be drawn in other cases, the
facts that the media defendants published in this case, for the reasons
stated above, are substantially relevant to the alleged criminal
activities of Anderson's husband, a matter of legitimate public
concern. The focus of the news broadcast was on the perpetrator, not
the victim. And as even Anderson acknowledges in her brief, she was
never identified by name, and the excerpted portion of the videotape
was limited to a few movements of the alleged attacker's naked body
without disclosing the sexual acts in great detail; only Anderson's
feet and calves were clearly visible, and they bore no identifying
characteristics.... But it is also difficult to see how the broadcast
at issue could be said to have no legitimate public interest--the test
we must apply. Had the broadcast gone further in invading Anderson's
privacy, rather than focusing on her estranged husband's wrongdoing, we
would have had a very different case. But the simple fact is that this
was a broadcast about a rapist, not a rape victim, and the legitimate
privacy interests of the two could not be more different. (89)


The Anderson court also rejected expert testimony on the public concern issue:
Anderson also argues that a declaration by Prof. Melinda Levin of the
University of North Texas--reporting her conclusion that the videotape
was unnewsworthy--creates a genuine issue for trial. We disagree for
two reasons. First, Prof. Levin opines on whether the news broadcast
was 'newsworthy' or an issue of 'public concern.' But this
determination, based on the undisputed facts in the record, is the
ultimate question of law before us. While expert witnesses may testify
as to the ultimate matter at issue..., this refers to testimony on
ultimate facts; testimony on ultimate questions of law, i.e., legal
opinions or conclusions, is not favored... Second, Levin concludes
that the videotape is not newsworthy because it exploits Anderson and
adds to her victimization. Even if true, Levin's declaration attacks
not the newsworthiness of the video excerpts, but the media defendants'
editorial judgment in airing them. Editorial judgment is a matter that
courts have generally left to the press... While Levin's critique of
the broadcast may be relevant to whether it would be highly offensive
to a reasonable person, her opinion as to the video excerpt's
substantial relevance to a legitimate matter of public concern
impermissibly addresses the ultimate legal question. (90)


VI. PROFESSOR MIKE FOLEY ON JOURNALISM ETHICS

Bollea retained as a trial expert on Journalism and Journalism Ethics, Professor Mike Foley of the University of Florida School of Journalism. Prior to joining the faculty of the University, Professor Foley was employed by the St. Petersburg Times, which was repeatedly ranked by TIME Magazine as one of the Top 10 newspapers in the United States, alongside The New York Times, Washington Post, Wall Street Journal and others. The offices of the St. Petersburg Times (now known as the Tampa Bay Times), are located within about a mile from the courthouse where the Bollea v. Gawker Media trial occurred. The following are excerpts from Professor Foley's written expert report in the Bollea v. Gawker Media case:

QUESTION 1: Did Gawker's publication of the Hulk Hogan sex video serve any valid, ethical journalistic purpose?

CONCLUSION: Based on my experience, background, knowledge, training, education, and more than 40-year career in journalism, I conclude with a reasonable degree of certainty, that Gawker's publication of the sex video itself did not serve any valid, ethical journalistic purpose.

Journalists don't check their humanity at the door when they enter the profession. They don't have to have cold hearts or lack sympathy or eliminate their empathy. In fact, just the opposite is true. A journalist is sensitive and understands the power he or she has--tremendous power to help or harm.

NEWS VALUES

Is it news that a sex video involving a famous professional wrestler exists? Probably. He is a celebrity, after all. Is it news that the ex-wife of the wrestler's friend also is on the tape? Yes. Is it news that the video was shot secretly and that the person(s) responsible is (are) unknown? Yes.

But is the video itself news? Absolutely not.

Real journalists are ethical. Journalism has standards and values. The First Amendment is a privilege, not a license. To protect that privilege, professionals have established guidelines for reporting and publishing the news. They are designed to help journalists get at the truth while respecting basic human rights.

Consider these excerpts from the Society of Professional Journalists' Code of Ethics, which, in my experience and based on my expertise, is commonly accepted as authoritative on ethical issues in the profession:

"MINIMIZE HARM

"Ethical journalis[ts] treat sources, subjects, colleagues and members of the public as human beings deserving of respect.

"Journalists should:

"Balance the public's need for information against potential harm or discomfort. Pursuit of the news is not a license for arrogance or undue intrusiveness.

"Recognize that legal access to information differs from an ethical justification to publish or broadcast.

"Avoid pandering to lurid curiosity, even if others do." (91)

Respect for privacy is fundamental to the profession of journalism. While it is sometimes necessary to publish intimate details of a story, it is unethical to make it the goal. It is customary in the industry not to publish grisly images of car accidents, for example, unless it is absolutely necessary to the telling of the story. And when it is deemed necessary, the least-offensive material sufficient to tell the story is used.

THE SEX VIDEO FOOTAGE IS NOT NEWS

Gawker's posting of this video isn't because of its "news" value. Consider this headline on the site:

Even for a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed is Not Safe For Work but Watch it Anyway (92)

Based on my 30 years in the journalism profession, posting this video shows a total disregard for privacy. It's insensitive. It shows contempt for the community and, from everything I have read, incredible arrogance.

Take the case of celebrity Erin Andrews. The fact that some criminal made a surreptitious video of her naked in a hotel room is news. However, I know of no reputable journalistic enterprise that published the tape or even a detailed description of its content. Gawker posted a link to the video.

Last year, a Tampa businessman was arrested and charged with secretly recording hundreds of instances of women showering and using the toilets at his company. The Tampa Bay Times and other news outlets ran stories. Not one published the video.

Last June, the Los Angeles Times published a story about a dance company worker who was arrested and accused of video recording underage girls in a dressing room. Is it a good news story? You bet. Did the Times print any of his pictures? Of course, not. I doubt the possibility was even raised.

Last summer, Johns Hopkins Hospital began paying a $190 million legal settlement to patients of a gynecologist who secretly videotaped women during examinations. I am not aware of any news outlet publishing any of that footage and, based on my experience, I cannot imagine any news outlet even spending a moment considering publishing that material.

In fact, the archives of the Tampa Bay Times and other Florida media outlets contain numerous stories about men being arrested for secretly filming women in restrooms or in the dressing room of a clothing store. As far as I know, nobody published the footage. And, based on my experience, I feel certain that none of these videos was even considered for publication.

The fact that these events occurred is news. Footage of the criminally recorded videos and photos is not.

PRIVACY IGNORED

Based on my examination of Gawker's practices in this matter, as well as others, Gawker violated the privacy of Terry Bollea (Hulk Hogan), which is unfair and meant to cause harm, rather than minimize it.

Gawker Media (@Gawker.com or one of its affiliated publications, Deadspin):

* Published topless photos of Kate Middleton, wife of the future king of England.

* Linked to the surreptitiously and criminally recorded tape of Erin Andrews naked.

* Posted private footage of Grey's Anatomy star Eric Dane, his wife Rebecca Gayheart and another young woman naked, and the couple sued Gawker for doing so.

* Posted cellphone photos of what was claimed to be Brett Favre's penis.

And, in perhaps one of the coldest "news reporting" examples, Deadspin posted a video of an apparently intoxicated couple (neither of whom was a public figure) having sex on the restroom floor of an Indiana sports bar.

Emails begging that the video be deleted were met with this response from Gawker's counsel, with a copy to writer and editor A.J. Daulerio

"[Name], This is a news story, and completely newsworthy. It's the truth, which can be hurtful, granted, but one's actions can have unintended consequences, especially when carried out in a public or semi-public place where clearly people were able to easily watch the activity at hand.... This whole story will blow over quickly if it is not given legs, but we believe that we are publishing this legitimately and as such, we will not remove the clip."

(The clip was eventually taken down after the editor, Daulerio, reported, "We saw enough.")

Gawker refused the request of Hulk Hogan's attorney--sent immediately after the sex video was posted--to take down the video. The sex video remained at Gawker.com for six months.

QUESTION 2: Did Gawker's posting of the Hulk Hogan sex video footage violate fundamental principles of journalism?

CONCLUSION: Based on my experience, background, knowledge, training, education, and more than 40-year career in journalism, I conclude with a reasonable degree of certainty, that Gawker's posting of the Hulk Hogan sex video footage violated fundamental principles of journalism.

There are three absolute requirements for good reporting: The story must be accurate, it must be complete and it must be fair. (93)

Journalists should not publish unverified anonymous tips and rumors. The custom and practice in journalism is to check and often double check everything. (There's an old saying in the business: "If your mother tells you she loves you, check it out.") Journalists contact everyone involved with the story. They get all sides.

They have ethics. They try to avoid using anonymous sources when it is not necessary to serve the public interest, and they carefully verify stories when they do. They avoid conflicts of interest. They run corrections if they make mistakes. They give careful thought and consideration before publishing offensive material. (It has to have "news" value and be essential to the telling of the story.) They respect peoples' privacy and only disclose private information when it is necessary to report matters of public concern.

The ultimate goal is to help readers/viewers understand a confusing world.

Based on my extensive review of Gawker's work, it is not Gawker's institutional intention to adhere to the fundamental principles of journalism. In fact, Gawker, its founder and its editors have said publicly that they do not.

INADVERTENT "JOURNALISM"

In an interview with Howard Kurtz that appeared in the Washington Post, Gawker's founder and CEO Nick Denton is quoted as saying, "We don't seek to do good....We may inadvertently do good. We may inadvertently commit journalism. That is not the institutional intention." (94)

In a February 2014 interview in Playboy magazine, Denton reportedly was asked: "Is it possible you set a lower value on privacy than most people do?" (95)

His response: "I don't think people give a f--k, actually." (96)

He also is quoted as saying, "... every infringement of privacy is sort of liberating." And "You could argue that privacy has never really existed." (97)

* * *

[Gawker's posting of the Bollea sex video] was not about reporting the news that a sex video of Hulk Hogan did, indeed, exist; the news story could have been written without posting the footage from the video. Gawker posted the 1 minute and 41 seconds of sex footage because Gawker is in the business of publishing sex and calling it news.

The posting of the sex video definitely is not fair. [Bollea] had no idea he was on camera. The video is hurtful and embarrassing. And it doesn't add to the story or move it along.

It represents a total disregard for privacy and is nothing more than pornography.

VII. OPINIONS OF LEGAL EXPERTS

Beyond the legal authorities set forth above, several Constitutional Law experts have weighed in on the privacy versus First Amendment battle playing out in the Bollea v. Gawker Media, lawsuit. (98) Erwin Chemerinsky, the Dean of the University of California at Irvine School of Law and professor of First Amendment Law, wrote an op-ed piece titled "Privacy versus speech in the Hulk Hogan sex tape trial" which was published in the Los Angeles Times on March 14, 2016 (during the Bollea v. Gawker Media trial). (99) Dean Chemerinsky wrote:
The law allows recovery for publicly disclosing private information if
the revelation would be offensive to a reasonable person and if the
information is not "newsworthy." Put another way, the facts disclosed
must not be a matter of legitimate public concern. But courts,
including the Supreme Court, have failed to offer a definition or way
of determining what is newsworthy. Defining the concept is problematic.
Should juries assess newsworthiness according to the public's actual
interest in the material? Isn't anything then newsworthy if enough
people want to look at it? By this standard, the Hogan videotape is
newsworthy simply because many people watched it and--logically--there
is virtually no such thing as an invasion of privacy in a prurient
society. (Sex, Daulerio readily conceded at trial, sells.)
Alternatively, should juries determine newsworthiness according to what
the public should be interested in? But then who gets to decide what's
valid and what's not?... Indeed, this case reflects how the changing
notions of privacy in society make it much harder to decide what would
be offensive to the reasonable person and what isn't of public concern.
... But I can imagine a clear rule: No videos of people having sex
should be made public unless all of the participants consent. I think
the media will survive the restriction. (100)


Law Professor Amy Gajda of Tulane University, author of the book The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press, wrote an article titled Privacy vs. Press, published on Slate.com on March 21, 2016 (days after the Bollea v. Gawker Media jury verdict). Professor Gajda states "these jurors may not be alone in giving new deference to privacy concerns" and discusses how the U.S. Supreme Court, based on the Bartnicki decision, is likely to favor Bollea under the circumstances presented in the case, because of the relative lack of public importance of seeing sexual activity in a private bedroom as contrasted with the importance of protecting the privacy of the participants. (101)

Robert Levine, author of the book Free Ride: How Digital Parasites Are Destroying the Culture Business wrote an article titled "What Hulk Hogan's Gawker Lawsuit Means for Our Privacy" published in the New York Times on April 4, 2016. (102) In discussing the trial testimony by Bollea regarding the difference between the public persona of the character "Hulk Hogan" with the private personal of the individual, Terry Bollea, Levine states: "the idea that a person may divulge some information in one context but not another is at the heart of modern privacy theory." (103) He further states that Bollea's "essential complaint is one that many of us share in and one that our laws haven't addressed: How do we control our information in the digital age?" (104) Levine concludes that, in the era of modern technology: "What we really need are more nuanced laws that can safeguard privacy in the digital age." (105)

VIII. YOUGOV.COM SURVEY, MARCH 2016

On March 22-23, 2016, a few days after the Bollea verdict, YouGov.com conducted a survey of 1,000 Americans, and asked the question: "Do you think it was acceptable or unacceptable for Gawker to publish the video of Hulk Hogan having sex?" By a margin of 11-to-1, respondents favored Hulk Hogan, with 77% answering "Unacceptable" to only 7% answering "Acceptable" (and 16% answering "Not sure.") (106) The same survey also reported that 80% of Americans say that it should be illegal for media outlets to publish tapes like the Bollea video, with only "8% saying it should be legal" by a 10-to-1 margin. (107)

IX. CONCLUSION

In the words of Professor Foley, Bollea's retained expert on Journalism and Journalism Ethics:
When the men who framed the Constitution and crafted the list of
freedoms that guide this country, the Internet--and websites like
Gawker--were not part of the thought process. I don't think they could
have imagined the enormous power to help--or hurt--people that has
evolved. I certainly don't think they would be happy.


CHARLES J. HARDER (*)

(*) Charles J. Harder, Esq. is lead counsel for Terry Bollea aka "Hulk Hogan" in Bollea v. Gawker Media, in which Bollea was awarded $140.1 by a Florida state court jury in March 2016. Mr. Harder is co-founder and partner of HARDER MIRELL & ABRAMS LLP (www.HMAfirm.com) a law firm in Los Angeles, California that specializes in entertainment, privacy, publicity, reputation protection, intellectual property and business litigation. In other federal and state lawsuits, Mr. Harder has represented Halle Berry, Sandra Bullock, George Clooney, Bradley Cooper, Cameron Diaz, Clint Eastwood, Julia Roberts, Melania Trump and Reese Witherspoon, among other clients. Mr. Harder also serves as Editor and Co-Author of the law treatise Entertainment Law & Litigation

(LexisNexis 2011-16) (Charles J. Harder ed., Matthew Bender & Company, Inc. 2014).

(1.) Andrews later became employed as an on-camera reporter for Fox Sports.

(2.) Keneally, Meghan, Erin Andrews Awarded $55 Million in Lawsuit, ABC NEWS (Mar. 7, 2016, 6:00 PM), http://abcnews.go.com/US/erin-andrews-jury-set-deliberate-75-million-lawsuit/story?id=3 7460110.

(3.) See Edecio Martinez, Rebecca Greyheart, "McSteamy" Eric Dane, Get Settlement Over Gawker Threesome Video, CBS NEWS (Aug. 4, 2010, 2:57 PM), http://www.cbsnews.corn/news/rebecca-gayheart-mcstcamy-cric-dane-gct-gawker-settlement-over-threesome-video/; Mike Rundle, Fred Durst Sues Gawker over Sex Tape, BUSINESS LOGS (Mar. 7, 2005), http://www.businesslogs.com/ethical-blogging/fred_durst_sues_gawker_over_sex_tape; Farve Sent Jenn Sterger, BUSINESS INSIDER (Dec. 2, 2010, 1:56 PM), http://www.businessinsider.com/gawker-media-paid-12000-for-the-nude-pictures-brett-favre-sent-jenn-sterger-2010-12; Kevin Draper, WWE Star Seth Rollins Learns to Keep Nude Photos to Himself (NSFW), DEADSPIN (Feb. 9, 2015, 11:39 PM), http://deadspin.com/lets-all-look-at-seth-rollinss-dong-nsfw-1684849435.

(4.) Griswold v. Connecticut, 381 U.S. 479, 484-85 (1965).

(5.) Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890).

(6.) Id. at 195-216.

(7.) William L. Prosser, Privacy, 48 CAL L. REV. 383 (1960).

(8.) Id. at 389.

(9.) Id. at 389-407.

(10.) Griswold v. Connecticut, 381 U.S. 479, 499 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972).

(11.) CAL. CONST., art. I, [section] 1 (emphasis added).

(12.) Vinson v. Super. Ct., 740 P.2d 404 (Cal. 1987) (citations omitted); see also Bollea v. Super. Ct., 247 Cal. Rptr. 185 (1987) (holding that "The California right has been described as a protective 'zone of privacy' surrounding sexual behavior; the right is grounded in the 1972 initiative by which the voters added the right of privacy to article 1, section 1 of the California Constitution") (citations omitted); Fults v. Super. Ct., 152 Cal.Rptr. 210 (1979) (citations omitted).

(13.) FLA. CONST., art. I, [section] 23 (emphasis added).

(14.) RESTATEMENT (SECOND) OF TORTS [section] 652 (AM. LAW INST. 1977).

(15.) Id. at [section] 652D.

(16.) Id.

(17.) Id. (emphasis added).

(18.) Virgil v. Time, Inc., 527 F.2d 1122, 1128 (9th Cir. 1975).

(19.) Id. at 1129-30.

(20.) Id.

(21.) Toffoloni v. LFP Publ'g Group, LLC., 572 F.3d 1201 (11th Cir. 2009).

(22.) Id. at 1212.

(23.) Id. (internal citations omitted).

(24.) Gilbert v. Med. Econ. Co., 665 F.2d 305, 308 (10th Cir. 1981).

(25.) Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1232 (7th Cir 1993).

(26.) Michaels v. Internet Entm't Grp., F. Supp. 2d 823 (C.D. Cal. 1998).

(27.) Id. at 840 (emph. added).

(28.) Michaels v. Internet Entm't Grp., 1998 WL 882848 (C.D. Cal. 1998).

(29.) Bartnicki v. Vopper, 532 U.S. 514 (2001).

(30.) Id. at 533.

(31.) Id. at 540.

(32.) Id. at 548-49.

(33.) City of San Diego v. Roe, 543 U.S. 77, 84 (2004).

(34.) Judge v. Saltz Plastic Surgery, 330 P.3d 126, 136 (Utah App. 2014).

(35.) Id. at 134.

(36.) Id. at 135 (internal quotation marks omitted).

(37.) Id. at 136.

(38.) Id.

(39.) Id. at 134-35.

(40.) 955 P.2d 469, 483-84 (Cal. 1998).

(41.) Shulman v. Grp. W Prod., Inc., 955 P.2d 469, 483-84 (Cal. 1998) (holding that oral communications in a rescue helicopter between an accident victim and paramedics were private and the broadcast of such communications by a film crew inside of the helicopter, without the victim's permission, was a violation of the victim's privacy, however, the broadcast of oral communications between the same parties outside of the helicopter, in public, was not actionable).

(42.) See Bollea v. Gawker Media, 2012 WL 5509624 at *3 (M.D. Florida Nov. 14, 2012).

(43.) See Harper & Row Publishers, Inc. v. Nation Enter., 471 U.S. 539, 565 (1985).

(44.) See Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 578 (1977).

(45.) Aguilar v. Avis Rent a Car Sys., Inc., 980 P.2d 846, 858 (Cal. 1999).

(46.) See also NAACP v. Claiborne Hardware Co. 458 U.S. 886, 916 (1982); Milk Wagon Drivers v. Meadowmoor Dairies, Inc. 312 U.S. 287, 292 & 295, (1941); Fallon, Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn't Bark, 1994 Sup.Ct.Rev. 1, 13 (1994).

(47.) Id. at 853-58.

(48.) See Murray v. Lawson, 649 A.2d 1253 (N.J. 1994) (upholding injunction against residential picketing of abortion doctor was intended to protect the doctor's privacy rather than to suppress the content of the protesters' message and was, thus, not an unconstitutional prior restraint); see also I.C. Mktg., Inc. v. Taunton Press, Inc., No. Civ. 03-3069-CO, 2005 WL 503180, at *15 (D. Or. Mar. 3, 2005) (upholding injunction issued on grounds that speech was unprotected false or misleading commercial speech and thus did not constitute an unconstitutional prior restraint); See also Borra v. Borra, 756 A.2d 647, 651 (N.J. Super. Ct. 2000) (upholding injunction precluding husband from contesting wife's membership in country club, based on finding of husband's bad faith, and holding it was not a prior restraint because husband could still express his opinion of his wife in other circumstances).

(49.) See Bollea v. Gawker Media, 2012 WL 5509624 (M.D. Florida Nov. 14, 2012).

(50.) Id. at *3.

(51.) Id. (emphasis in original).

(52.) Id. (emphasis in original).

(53.) Id. at *2 n.3 (internal quotation omitted).

(54.) Id. at *3 n.8.

(55.) Gawker Media, LLC v. Bollea, 129 So. 3d 1196, 1201 (Fla. Dist. Ct. App. 2014).

(56.) Id. at 1200-01.

(57.) Id. at 1202.

(58.) Michaels v. Internet Entm't Group., Inc., No. CV 98-0583 DDP (CWX), 1998 WL 882848 (C.D. Cal. Sept. 11, 1998).

(59.) Id. at *7-10 (emphasis added) (internal quotations omitted).

(60.) Id. at *8.

(61.) Id. at *10.

(62.) Cape Publications, Inc. v. Hitchner, 594 So.2d 1374, 1378-79 (Fla. 1989).

(63.) Id. at 1377.

(64.) Id. at 1379.

(65.) Snyder v. Phelps, 562 U.S. 443 (2011).

(66.) Id. at 453 (internal citations omitted) (internal quotations omitted).

(67.) Id. (internal citations omitted) (internal quotations omitted).

(68.) Id. at 454.

(69.) Id.

(70.) Id. at 460.

(71.) Cape Publications v. Bridges, 423 So.2d 426 (Fla. 5th Dist. Ct. App. 1982).

(72.) Id. at 427.

(73.) Id. at 427-28 (internal citations omitted).

(74.) Id. at 427 n. 2. (citation omitted).

(75.) Id. at 428.

(76.) Id. at 427.

(77.) Id. at 427.

(78.) Cinel v. Connick, 15 F.3d 1338 (5 (th) Cir. 1994).

(79.) Id. at 1341.

(80.) Id. at 1345-1346

(81.) Id. at 1346, n. 8.

(82.) Id. at 1346.

(83.) Id.

(84.) Id.

(85.) Anderson v. Suiters, 499 F.3d 1228 (10 (th) Cir. 2007).

(86.) Id. at 1236.

(87.) Id.

(88.) Id.

(89.) Id. at 1237 (emphasis added).

(90.) Id. at 1237-38 (citations omitted) (emphasis omitted).

(91.) SPJ Code of Ethics, SOCIETY OF PROFESSIONAL JOURNALISTS (Sept. 6, 2014, 4:49 PM), http://www.spj.org/ethicscode.asp.

(92.) A.J. Daulerio, Even for a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed is Not Safe For Work but Watch it Anyway, GAWKER (Oct. 4, 2012, 1:15 PM), http://gawker.com/5948770/even-for-a-minute-watching-hulk-hogan-have-sex-in-a-canopy-bed-is-not-safe-for-work-but-watch-it-anyway

(93.) See SPJ Code of Ethics, supra note 93.

(94.) Howard Kurtz, Media Notes: Howard Kurtz on Nick Denton, Founder of Gawker, WASH. POST (June 22, 2009), http://www.washingtonpost.com/wp-dyn/content/article/2009/06/21/AR2009062101822.html.

(95.) Jeff Bercovici, The Playboy Interview: A Candid Conversation with Gawker's Nick Denton, PLAYBOY (Feb. 21, 2014, 8:30 AM), http://playboysfw.kinja.com/the-playboy-interview-a-candid-conversation-with-gawke-1527302145.

(96.) Id.

(97.) Id.

(98.) See, e.g., Erwin Chemerinsky, Privacy Versus Speech in the Hulk Hogan Sex Tape Trial, L.A. TIMES (Mar. 14, 2016, 5:00 AM), http://www.latimes.com/opinion/op-ed/la-oe-0314-chemerinsky-hulk-hogan-gawker-20160314-story.html.

(99.) Id.

(100.) Id.

(101.) Amy Gajda, Privacy vs. Press, SLATE.com (Mar. 21, 2016, 5:55 PM), http://www.slate.com/articles/news_and_politics/jurisprudencc/2016/03/what_mighthappen_if_the_hogan_gawker_case_reaches_the_supreme_court.html.

(102.) Robert Levine, What Hulk Hogan's Gawker Lawsuit Means for Our Privacy, N.Y. TIMES (Apr. 4, 2016), http://www.nytimes.com/2016/04/05/opinion/what-hulk-hogans-gawker-lawsuit-means-for-our-privacy.html?_r=0.

(103.) Id.

(104.) Id.

(105.) Id.

(106.) Peter Moore, Americans Overwhelmingly Side with Hulk Hogan, Not Gawker, YouGov (Apr. 7, 2016, 11:28 AM), https://today.yougov.com/news/2016/04/06/arnericans-overwhelmingly-side-hulk-hogan-not-gawke/.

(107.) Id.
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Date:Mar 22, 2017
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