The delusions of Nick Denton
After Gawker flagrantly ignored the right to privacy, Hulk Hogan deserved to win
Sex, free speech and the media have frequently collided in American public debate. The legal action by Hulk Hogan against Gawker Media is a prime example and it’s an absolute moral swamp on both sides.
Nick Denton, Gawker’s founder, has been attempting to veer onto the moral high ground in the past few years, slaking off his formerly amoral attitude to stories on people’s personal lives. He promised to make Gawker “20% nicer.” It was an unconvincing volte face.
The argument put forward by Gawker and its lawyers is that Hogan — real name Terry Bolea — talked about his sex life in interviews and so had made it fair game.
The $115 million story — the post that led to Hogan winning those vast damages in court — focused on a tape that showing Hogan having sex with his best friend’s wife. That friend — the awfully-named Bubba The Love Sponge — a talk radio host, made the recording without Hogan’s knowledge.
Other media outlets covered the leaked tape, particularly as sections featured Hogan using racist language, but — unlike Gawker — they chose not to run video, opting instead for largely censored stills. And Gawker did not even cover the racist language.
The question at the heart of Bollea v. Gawker Media clash is one of privacy versus freedom of the press. Gawker argues that there is a public interest defence for its publication of a short excerpt from the tape, Hogan’s team believes it was an obvious breach of privacy.
In a previous ruling on a ‘celebrity’ sex tape’s publication — Michaels v. Internet Entertainment Group — the judge concluded that “broadcast of videotape recording of sexual relations between a famous actress and rock star [is] not a matter of legitimate public concern.”
It could be argued that it is even less of a public concern in the case of Hulk Hogan, whose sex partner was not a household name, being the wife of a relatively obscure radio personality. Gawker’s defence would be almost entirely kaput if the woman in the video had brought the suit against it.
If Gawker doesn’t win its appeal, the $115 million judgement could sink the company. It could mean the end of the titular site, Gawker, but also Jezebel, iO9 and Gizmodo, its sister sites.
Bankruptcy for the network would mean job losses across all those sites, throwing journalists into an already uncertain media environment. That’s the unhappy situation that Denton, his lawyers and the site editors are highlighting in the hope of marshalling support for the appeal.
I don’t want to see journalists out of work, but the claim that Gawker’s story was ‘in the public interest’ is a weak one. The point — hammered home repeatedly during Britain’s Levenson Inquiry into the standards and practices of the media — is that there is a clear difference between ‘things of interest to the public’ and ‘issues that are in the public interest.’
“We believed the story had value. That it was true, that it was a story honestly told, and that it was interesting to millions of people.”
Gawker’s original post — which is still online — carried the headline ‘Even for a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed is Not Safe For Work but Watch it Anyway’.
It’s a prurient tale without any public interest angle. It starts with some pseudo-profound musing on the experience of watching celebrities have sex…
“Because the internet has made it easier for all of us to be shameless voyeurs and deviants, we love to watch famous people have sex. We watch this footage because it’s something we’re not supposed to see (sometimes) but we come away satisfied that when famous people have sex it’s closer to the sex we as civilians have from time to time.
Meaning: it’s hardly ever sexy the way we expect it to be sexy, even when the participants are ostensibly more attractive than the majority of our sex partners will be.”
… before going on to recap the tape in the manner usually reserved for episodes of Doctor Who or Keeping Up With The Kardashians.
Gawker published the tape because it knew it would appeal to humanity’s most voyeuristic tendencies. It was not engaged in some kind of honourable endeavour.
15 days after the original post, Gawker published a follow-up, refusing to comply with a court order compelling it to remove the video and commentary on it, headlined, ‘A Judge Told Us to Take Down Our Hulk Hogan Sex Tape Post. We Won’t’. In it, Gawker’s John Cook — who later left for The Intercept before returning to the company — wrote:
We publish all manner of stories here. Some are serious, some are frivolous, some are dumb. I am not going to make a case that the future of the Republic rises or falls on the ability of the general public to watch a video of Hulk Hogan fucking his friend’s ex-wife.
But the Constitution does unambiguously accord us the right to publish true things about public figures. And Campbell’s order requiring us to take down not only a very brief, highly edited video excerpt from a 30-minute Hulk Hogan fucking session but also a lengthy written account from someone who had watched the entirety of that fucking session, is risible and contemptuous of centuries of First Amendment jurisprudence.
Gawker has continued to lean on the First Amendment in defence of its publication of a stolen sex tape — no matter what way you edit it — and a straight-forward description of the acts in that video. It hopes that judges and the public will ignore Hogan’s right to privacy and established American jurisprudence in that area.
Privacy rights were famously discussed by future Supreme Court Justice Louis Brandeis and his then partner Samuel Warren in their 1890 Harvard Law Review article ‘The Right To Privacy.’ Brandeis later became the first jurist to effectively interpret a right to privacy in the Fourth Amendment.
Brandeis — who is thought to have written most of the Harvard Law Review paper — may as well have been discussing Bollea v. Gawker Media when he said:
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. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle…
Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in the lowering of social standards and of morality.
Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people.
When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance.
The Gawker question is not about the unseemliness of the story’s topic but whether it is a free speech issue or merely a misuse of the protections afforded free speech when compared to an individual’s right to privacy.
Hogan is not an exemplary character by any means, but the mere fact that he engaged in consensual sexual relations with the now ex-wife of a close friend is not a public interest issue. He’s a private citizen who plies his trade as an entertainer.
Hogan is not an elected politician or a moral leader. He has not made money from promoting his own personal morality and simply mentioning his sex life in interviews does not fling open the gates for Gawker to maraud through his private life.
Gawker has broken stories with true journalistic merit but one involving Hogan was not one of them. That it is an organisation whose publications can be seedy is obviously no reason to deny it free speech, nor is the fact that the story in question centres on sexual activity the problem.
Larry Flynt, the founder and publisher of Hustler, set an interesting precedent when he took his battle with Jerry Falwell to the Supreme Court and won.
That case (Hustler Magazine v. Falwell) like Bollea v. Gawker Media, focused on the reputation of a public figure and sexual content. In the Hustler case, however, the speech at its centre was a satirical ad.
The satire, a take on a contemporary Campari ad campaign, was written by Terry Abrahamson and Hustler art director Mike Salisbury.
It featured a picture of Falwell and a fictional interview in which he described a sexual encounter with his mother in an outhouse while both were in a drunken stupor due to drinking Campari. It was marked as an “ad parody” and listed as fiction in the magazine’s table of contents.
Flynt and Hustler lost in cases before a local court in West Virginia and at the Fourth Circuit appeals court, but ultimately managed to win a First Amendment battle before the Supreme Court. It ruled:
At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.
The freedom to speak one’s mind is not only an aspect of individual liberty — and thus a good unto itself — but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.
Brazen as Gawker and its lawyers are, it may attempt to argue in higher court that its publication of the excerpt from the Hogan video is covered by ‘the freedom to speak one’s mind’ but the Fourth Amendment issues remain hard for it to duck.
While its sister site, Jezebel, has written extensively about efforts to combat ‘revenge porn’, in the Hogan case, Gawker effectively peddled it.
Obviously, people who work in the media are fairly hardline when it comes to freedom of speech and freedom of the press, but I don’t believe the Hogan case is the hill any of us want to die on. Gawker made clear in its original post that it was publishing the edited clip for voyeuristic reasons. This was all about purience, not public interest.
Does Hogan deserve $115 million for his ‘distress’ at the publication of a written description and an extremely short video clip? Of course not, but Gawker is not and has never been the victim in this case.
I hope the company isn’t sunk by this case but only because many journalists will lose their jobs if it is, but we shouldn’t feel one iota of sympathy for Nick Denton. His arrogance is not the hill that free speech should go to die on.