Last week I had to defend Donald Trump’s free-speech rights. Now that a Florida jury has awarded Hulk Hogan $115 million in his suit against Gawker, I have to defend the original snark-site’s free-press right to have shown a sex tape of the retired wrestler and his erstwhile best friend’s wife. This First Amendment stuff is sometimes a serious drag.
In this area of law, unattractive speakers are par for the course. One famous precedent involved a parody of a Campari ad in Hustler in which Jerry Falwell discussed losing his virginity to his mother. (There’s even a movie about it, The People Vs. Larry Flynt.)
It would be great if all First Amendment defendants were publishing “Ulysses.” But in reality, free speech and free-press rights are especially vulnerable when the defendant’s speech is nasty.
So it’s time to crank up the constitutional engine and explain why the verdict against Gawker not only should be struck down on appeal, but why the issue shouldn’t have gone to a jury in the first place.
The bottom line is simple: Hogan is a public figure who discusses his sexual prowess on Howard Stern’s radio show and more or less pre-promoted the sex tape by talking about it on the gossip site TMZ. Gawker’s constitutional right to publish content the public wants to consume outweighs what little privacy interests a public figure like Hogan may derive from state law. Even a film clip counts as content under the First Amendment.
The legal analysis, however, is a bit more complicated — and interesting.
The Florida law under which Hogan sued, like laws in many other states, says that someone who publicizes embarrassing private facts about another person is liable for damages. In addition to compensation, a jury can award punitive damages of up to three times more, which would get the verdict here into the $500 million range.
There’s no Supreme Court precedent squarely addressing the constitutionality of such state laws. If the court were to consider the question today, it’s likely that it would apply a high degree of scrutiny to the laws, since they target speech based on its content. It might say that the government has a compelling interest in protecting privacy. But then it would require a state to narrowly tailor privacy laws to serve that interest, and to show it had used the least restrictive means possible. But at a time of near-absolutism on free speech, the court might well go even farther and strike down such laws en masse.
In the meantime, lower courts apply principles derived from the justices’ opinions in related areas. One is that debate on public issues should be uninhibited. A second, closely linked, is that public figures sacrifice a good deal of their privacy when they when they enter the public sphere. Both can be traced back to New York Times v. Sullivan, the 1964 landmark case in which the court said public officials could only collect damages for libel if the statements against them were made with knowing or reckless disregard for their falsehood.
Taken together, these principles clearly indicate that newsworthy speech about a public figure merits full First Amendment protection. And, unfortunate though it may be, Hulk Hogan is a public figure and his sex life is newsworthy.
This is so not just because the public is hungry for celebrity sex tapes, but because Hogan himself has made his sex life a matter of public interest. In other words, this is isn’t a close case of the kind that might arise if, say, there were a sex tape of a public figure known solely as a classical pianist, where the public hadn’t been invited to speculate about the celebrity’s sex life.
Hogan offered the highly original argument to the jury that his public persona and his private one could be divorced, so that his public statements were irrelevant. But although this argument may possibly say something about the inner life of celebrities, it isn’t one the First Amendment would allow. Public figures can’t escape their special constitutional status by saying that deep down, they’re really shy.
The jury in this case may have been offering a nostalgic call for return to an era when the sex tape wasn’t a recognized method of career-making or career rehabilitation. Or it may simply have liked Hogan and hated Gawker.
But either way, the jury should never have had the chance to reach a verdict. The judge should’ve understood that, based on the facts brought out at trial and interpreted in the manner most favorable to Hogan, the First Amendment barred Hogan from recovering. She should’ve granted judgment to Gawker before the case went to the jury.
The fact that she didn’t has serious consequences. For Gawker, it means posting a huge bond or appealing the need for the bond. Doubt in the company’s future will fade as the law becomes clear, but it’s never good for a media outlet to seem vulnerable to being closed.
The costs to the First Amendment are greater, and unlike the verdict, are irreversible. Across the country, media will think twice when they consider publishing sensitive stories about public figures who may sue them. The outsized verdict is an especially effective means of chilling speech - as no doubt the jury intended.
If you don’t like sex tapes or Gawker, your reaction may be: “Good. Media should think twice about coarsening public discourse.”
But the truth is that sex has been part of our public affairs at least since the election of 1804, when opponents charged (accurately, it turns out) that Thomas Jefferson had fathered children with one of his slaves, Sally Hemings. We get the public discourse we deserve - and the function of the First Amendment is to keep it robust, even if that means defending unpleasant speakers and the vile things they say.
Noah Feldman is a professor of constitutional and international law at Harvard University.