Right to privacy vs. free press

Published 6:34 pm Saturday, March 19, 2016

At first glance, a jury’s decision to award Hulk Hogan $115 million in a sex tape lawsuit makes sense. Hogan sued after Gawker Media posted a video of him having sex with another man’s wife.

But the decision could have First Amendment ramifications that the jury likely didn’t consider.

“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,” Samantha Barbas, a law professor and the author of a book that focuses on the history of libel and privacy, told the AP. “It could potentially be a turning point in law.”

Generally speaking, people who are considered public figures such as celebrities have had little right to privacy. At least the freedom of the press has outweighed any right to privacy. Why? Because public figures make themselves public and in doing so, generally give up any claims to privacy.

Questions such as “Is it newsworthy?” or “Does it have public interest?” lead to subjective answers.  Generally, the courts have ruled that media can publish private information about a public figure that’s newsworthy. But what one person decides is newsworthy may not meet that definition for another.

It stands to reason that everyone, including celebrities, has a right to privacy that extends to the bedroom. But in this case, Hogan repeatedly discussed his sex life in public, and in doing so may have made what should be a private thing very public.

Gawker is appealing the verdict, and the jury that hears the appeal would have to ignore precedent in order to side with Hogan. The Supreme Court, in Hustler Magazine v. Falwell, erred on the side of freedom of expression and said that Jerry Falwell couldn’t collect damages for an offensive, fabricated story about him. Chief Justice William Rehnquist wrote that banning content because it was outrageous “would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression, and cannot, consistently with the First Amendment, form a basis for the award of damages for conduct.”

Hogan’s attorneys claimed that Gawker didn’t follow usual journalism procedures, like seeking Hogan’s permission before posting the video. That’s hogwash. There is no journalism procedure that requires reporters or editors to ask permission to photograph a person, write a story about a person or seek permission to publish anything about anyone. That’s simply not how it works.

The First Amendment gives you permission to publish anything you like, with a few exceptions — incitement, obscenity, child pornography, offensive speech and a few others. But even those aren’t cut and dry. The obscenity exception says that speech is unprotected if the average person would find that the subject appeals to the prurient interest, which is defined as “shameful or morbid interest in sex.” But even then, as long as it has serious literary, artistic, political or scientific value, it’s protected.

How the Hogan case plays out in the end will likely be of little interest to most of us, but it could signal a shift in this country’s interpretation of the First Amendment. Already, the man hoping to be the next president has said he wants to make it easier for people to sue news organizations for libel.

All freedoms guaranteed by the Bill of Rights are precious and shouldn’t be taken for granted. Just because we don’t agree with someone’s speech or expression doesn’t mean that speech should be silenced. We only endanger ourselves when we seek to limit the speech of others, including media companies that appear to have little in the ethics department.

Luke Horton is the publisher of The Daily Leader.