A Loss for Gawker, Not for the First Amendment
The $115 million awarded by a Florida jury to wrestler Hulk Hogan yesterday is a staggering sum. The verdict puts Gawker Media in danger of bankruptcy. But it does not endanger the freedom of the press.
Jeff Jarvis fears that the First Amendment as applied in the Florida court “is the First Amendment as Donald Trump would interpret it.” He writes that “Gawker deserves the protection of the First Amendment like Nazis in Skokie” and that Gawker “might well win on appeal.” I’m reluctant to make any prediction as to the appellate outcome, which will depend as much on state tort law as on First Amendment doctrine. But the claim that Gawker deserves First Amendment protection strikes me as rather doubtful — and the claim that this case puts us on the path to Trumpland strikes me as even more so.
Jarvis’s major premise is that “[i]f the First Amendment does not protect offensive speech, it protects no one.” His minor premise is that “Gawker is nothing if not reliably offensive, noxious, and cruel.” I won’t comment on the minor premise, but the major premise is faulty.
Jarvis is right that the First Amendment protects offensive as well as innocuous speech. As Justice Stevens wrote in FCC v. Pacifica Foundation, “the fact that society may find speech offensive is not a sufficient reason for suppressing it.” But the fact that speech is offensive does not mean that it is always protected by the First Amendment. If I secretly videotape my neighbor’s son or daughter in the shower and then post the video online, my actions are offensive — but not constitutionally protected. Offensiveness might not remove speech from the First Amendment’s scope, but offensiveness on its own does not qualify speech for First Amendment protection.
Jarvis next argues that “Hulk Hogan is a public figure,” with the implication that “public figure” status means that any speech about Hulk Hogan is fair game. That is not the law. While speech about public figures is generally entitled to stronger protection under the First Amendment, the Supreme Court has said that “[o]f course, this does not mean that any speech about a public figure is immune from sanction in the form of damages.” Nor should it. The First Amendment ought to protect individuals who write books, act in plays, run for town council, and otherwise participate in public life. We would discourage them from doing so if their entry into the public sphere meant than anyone could post nude photos of them on Facebook.
The Supreme Court’s most recent statement regarding the application of the First Amendment to emotional distress claims came in Snyder v. Phelps, a 2011 case that did not involve a public figure. In that case, a Maryland jury held members of the Westboro Baptist Church liable for picketing near a soldier’s funeral. Chief Justice Roberts wrote:
Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. . . . 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.
As “an example of speech of only private concern,” the Chief Justice cited a case involving “videos of [a government] employee engaging in sexually explicit acts”: “the videos did nothing to inform the public about any aspect of the employing agency’s functioning or operation.”
Perhaps Gawker can convince a court that the Hogan sex video is “a subject of general interest and of value and concern to the public.” The fact that the video generated millions of page views might suggest that it was “of general interest.” It’s harder to say that the video was “of value” to the public. Gawker might also say that Hulk Hogan’s infidelity made him less worthy of role-model status. (If there were any doubt about that, his racist rant in 2015 surely put him out of contention.)
Conversely, Erwin Chemerinsky has argued that the First Amendment should never protect videos of people having sex unless all of the participants consent to release. Chemerinsky’s proposal strikes me as a step too far. One can imagine — though we’d all prefer not to — a presidential candidate running on a family-values platform who is caught on tape engaging in an extramarital affair. That does indeed seem like a matter of public concern.
The important point is that with any standard like “matter of public concern,” there will be easy cases and there will be hard ones. Political speech will always qualify as speech about a “matter of public concern” (even when that speech is offensive, like the speech of Nazis who wanted to hold a rally in a heavily Jewish suburb of Chicago). Sex tapes usually won’t. In a few cases they might (though I don’t think this is one). But whatever one thinks of Gawker’s First Amendment claim, that does not mean that newspapers will therefore lose First Amendment protection when they write negative articles about Donald Trump. The fact that a court went against a speaker in a hard First Amendment case does not mean that courts will start ruling against speakers in easy cases.
All of which is to say that Gawker should indeed be worried about the ultimate outcome in Florida. The company’s owners say they are confident about winning on the First Amendment issue on appeal; that confidence seems to me misplaced. For First Amendment advocates, on the other hand, the outcome in Florida should elicit less anxiety. Their fears about the future of the free press strike me as misplaced as well.
