Hulk Hogan vs. Gawker, the First Amendment, and Online Law

(Update: A jury in Florida on March 18 returned a verdict in favor of Hulk Hogan, and awarded him a total of $115 million in damages).

Hulk Hogan is suing Gawker for $100 million for publishing a secretly recorded sex tape. The lawsuit, now in its third day in a Florida courtroom before a jury of six, stems from this post published by Gawker in October of 2012. In the post, A.J. Daulerio, the managing editor when I was an associate editor at Deadspin, posts an excerpt of the sex tape and humorously discusses what occurs in the video. The video, which was received via anonymous tip to Gawker, was recorded without Hogan's knowledge in the house of radio jockey Bubba the Love Sponge. In the video Hogan is sleeping with Bubba's wife with Bubba's consent. (The couple has since divorced.)

Gawker argues that its publication of Hogan's sex tape is protected by the First Amendment because Hogan is a public figure and has discussed his sex life previously in books, interviews, and his reality TV show. Hogan and his attorneys argue that discussing his sex life doesn't give Gawker first amendment license to publish a secretly recorded sex tape which received millions of online pageviews. While the case has received a fairly substantial amount of news attention, most of the coverage hasn't reflected the seriousness of the issues at stake. I believe Hogan vs. Gawker has the potential to be as important of a First Amendment case as New York Times v. Sullivan.

From the moment I started writing online I've thought about the legalities of what I do. That was especially the case when I worked, for a short period of time, for Gawker's Deadspin blog. Every day we received hundreds, if not thousands, of email tips. We could turn a tip into a story in twenty minutes or less. Most of these stories were ephemeral, morning or afternoon stories that vanished nearly as soon as they were published, the ice cream of social media, a constantly melting rush of sugary confection. 

But occasionally there were stories that were more significant, stories that seemed to have significant legal issues at play. When I worked at Gawker no lawyers were involved in any publication decisions. Indeed, I never received any legal instruction at all. The mantra was pretty simple, publish as you guys see fit. I regularly analyzed our posts from a legal perspective, contemplating how close we were to the line between permissible and impermissible behavior. But it was nearly impossible to apply first amendment law to the online universe, there were few guiding principles. We were, put simply, in uncharted legal territory. 

When I was writing at Gawker I thought frequently about the New York Times v. Sullivan standard and about how poorly it was crafted to handle the modern Internet era. New York Times v. Sullivan dealt with a massive newspaper's decision to publish a newspaper ad during the Civil Rights Era. The court found that when public figures are involved as plaintiffs in a defamation or libel case the plaintiff must prove that the publisher knew that the statement was false or acted in reckless disregard of its truth or falsity. The practical result has been that it's very difficult for any public figure in America to sue a news entity for defamation. But how well does the New York Times v. Sullivan framework apply in the modern Internet era, when scandal and sex tapes and the demand for page views governs just about every newsroom?

It doesn't, at all.   

While newspapers published on a daily basis in the 1960's, they had hours and hours before their articles went to press and they had teams of lawyers reviewing potentially controversial articles. During my time at Gawker the time between when an article was drafted and when it was published was virtually nonexistent. Moreover, the writers and editors had virtually no interaction with any legal team. Everything was fair game, that was the ethos of the site, to reveal the truth behind the artificial public relations construct of a modern meda era.   

But where was the legal line? Was there a legal line at all?

I didn't know then. I still don't know now. The reality is this -- no one knows what the legal line is when it comes to online reporting in the modern Internet era. Technology, as it always does, had raced far ahead of dated legal precedents.

But I do feel like we're finally at a moment in time when the law is beginning to grapple with the technological complexities of our modern era. Whether it's Apple vs. the FBI, Edward Snowden vs. the NSA or Erin Andrews vs. a hotel, the law's attempt to reconcile technology and privacy, first amendment concerns and public protection, copyright law and fair use, is at a seminal moment in time.  

And, interestingly, the people who are having the biggest say so far are you guys, finders of fact sitting on juries. Earlier this week Erin Andrews received a $55 million verdict for her illegally recorded peephole video, now six people are sitting on a jury deciding whether Hulk Hogan can potentially bankrupt Gawker over a single post in a single afternoon of a single day.

After millions of published words, one 1200 word post could bankrupt one of the largest online companies in the country.

This case is a fascinating and incredible window into a rapidly evolving moment in our country's legal history. And I'm filled with so many questions that don't have easy answers.   

Here are my five biggest questions about the Hogan vs. Gawker case. 

1. Does privacy exist for public figures in an online universe?

Gawker's first amendment argument, pushed to its logical extension, would essentially provide that every celebrity is a public figure at all times. If it can be taped, regardless of how or where its taped or whether any consent is involved in the taping, it's fair game for everyone in public to watch.

That strikes me, even as a first amendment absolutist, as a difficult legal standard to uphold.

Let me give you an example. Since I'm a public figure this would mean that if someone managed to break into my house and put a secret camera in my bedroom that what happened between my wife and me in our bed inside our private home -- we're married with three kids so it's mostly sleep -- would be fair game for any website to post.

I think most of you would recoil at that idea -- and not just because watching this would require you to see me naked. It strikes most of us as a clear invasion of privacy for a secretly recorded tape from a bedroom to go public like this.

Now this tape wasn't secretly recorded in Hogan's own home -- it was the woman's home -- but can the law also countenance the idea that a sex partner has the right to secretly tape you and then sell it to the highest bidder or post it online for everyone to see? Even if you're in someone else's home you still have the right to expect that your sex act is between just you and your partner(s), right? (There's a clear legal distinction here between a private sex act and a public one. If you get taped having sex in a public space, that video would be fair game for anyone to watch. The easiest example of this is the "Girls Gone Wild" tapes, if you flash your boobs on a public street during Mardi Gras, your boobs are fair game for whomever seems them. If you make an intentional sex tape then a different standard applies as well. There are potential issues with who owns the tape and has the right to distribute it, for instance. You could still have a legal argument over whether one party or the other consented to the public release of the sex tape, but at least both parties would be aware the taping was occurring. Interestingly, if Hogan had consented to the sex tape being made, he would still have a copyright to that sex tape. So he could still sue Gawker for infringement if it was posted online without his consent or payment). 

2. Is the online privacy standard different for public figures vs. private figures, does it matter if a man or woman is involved?

Some of you may find Hulk Hogan to be an unsympathetic plaintiff. He's a boisterous public figure who has made his money wrestling topless in tight shorts that left little to the imagination. But what if this was a famous woman being secretly taped? Do you feel differently? Would Gawker have played the video for the same laughs if it was, for instance, Erin Andrews being secretly taped having sex? Maybe, although I doubt it.

Remember that a jury of six people is charged with applying these facts to the law at hand. It's a terribly difficult job because they don't have much legal guidance either. And facts matter a great deal in cases such as these. For instance, would a jury be more likely to feel a woman's privacy was violated in a case like this than a man's? I think that's probably likely, female sexuality is generally more protected by juries than male sexuality is. It's why, for instance, female teachers who sleep with male high schoolers are infinitely less punished than male teachers who sleep with female high schoolers.  

But from a legal perspective I don't believe the courts can make that distinction, men and women would have to be treated the exact same legally. So if you're upset that Erin Andrews was secretly videotaped in her hotel room naked, don't you have to also be upset that Hulk Hogan was secretly videotaped in a private home having sex? Moreover, Hogan's situation is arguably worse since Gawker actually made money off posting this video. That is, they sold the advertisements that appeared around this video and led to millions of pageviews. The result -- Gawker directly profited off the Hogan video.  

Now let me ask you another interesting question, should the law treat secretly taped instances like this differently for public vs. private figures? Does it matter that this is Hulk Hogan as opposed to, say, your dad or grandfather, who are probably not public figures? If you think it's more valid for Hogan's sex tape to be published online, why is that? Does fame erode his legal right to privacy?

I don't think it does in this instance. Why should your expectation of privacy inside your home or someone else's home or hotel room be different if you're famous? I believe the legal standard needs to be the same for both public and private figures and for men and women.

But will juries agree? And will the courts? 

3. Do you still have a reasonable expectation of privacy in your home or hotel room in an online era when everyone has Facebook and Twitter and Instagram pages?

Hell, is there even a reason to have a distinction between public and private figures any longer? (I would argue that just about everyone is a public figure in today's era and that the law should treat everyone, famous or not famous, the same when it comes to issues of privacy.)

Personally, I believe there should be a hard line legal rule that protects individuals from things that are secretly recorded in their homes or hotel rooms being shared publicly. The only exception I can see here is for conduct that is criminal in nature.  

I took a lot of heat from some online -- including, ironically, Deadspin -- for saying that the biggest story from the Donald Sterling case wasn't his racist statements, but the fact that the audio in question had been illegally recorded by his girlfriend in his own private home. Regardless of what's said in a conversation like that, I don't believe it should be public without the consent of both parties. Sure, Sterling made racist comments, but being racist isn't a crime. I was more troubled by the illegal recording going public than I was by Sterling's comments. That's because I believe we set a bad precedent here, if someone says something you don't like it doesn't matter whether it was obtained illegally inside a private residence, it's fair game to use against them. I fundamentally disagree with this logic and I would disagree regardless whether I agree or disagree with what's said. The right to privacy can't only apply to things said in private that you agree with. 

If I were Donald Sterling I would have filed a lawsuit against TMZ for publishing my private comments that were illegally recorded inside my home without my consent. I think he might well have won that case. And in the process he could set an important precedent regarding privacy in an online era.   

When you analyze cases like these you have to divorce yourself from the content of the speech and ask yourself difficult questions: Do you expect that your conversations in your home are for public consumption? I certainly don't. Would you want every conversation with your spouse or your children to be subject to public replay? I certainly wouldn't.

My legal ruling would be this: there is no first amendment protection for illegally or non-consensually recorded distribution of audio or video sounds or images that are recorded inside private homes without the consent of both parties.   

My only exception to this rule would apply if crimes are potentially involved. 

4. Who is the publisher?

In this case Gawker actually published the video itself. But what if, as seems more likely, the video had been posted elsewhere online, on Twitter or Facebook or some file hosting site offshore. Could Gawker have been sued for embedding the video if it was hosted elsewhere?

That's the next iteration of this lawsuit.

Because if Gawker loses a case like this every "major" site will establish a new rule, no audio or video files go up online without legal consent. But what if those audio or video files are up online and being hosted elsewhere? Couldn't Gawker have just gotten some offshore site to post the video and then linked back to it -- embedding the video in the process -- and ended up with a similar number of pageviews?

Which raises a really interesting question in our social media era: Is sharing content that violates the law also actionable? After all, the reason why millions of people watched the Hulk Hogan video wasn't just because Gawker published it, it was because hundreds of thousands of users, potentially millions, shared it with others. 

So how far down the line does the liability extend? Could individual Twitter account users be sued for linking to actionable content? How about Facebook users? What if you run a site and embed Tweets or Facebook posts that feature actionable content? Where do you draw the line on who is liable for posting? Particularly when, as you all know, a major site can publish a Tweet or Facebook post to millions more people than would have ever seen that original post.

Again, these are complex issues that are being decided right now. 

5. How do individual writers apply complex and uncertain law to rapidly evolving circumstances?

The more I write online the more I would analogize what online writers do to what police officers do on a daily basis. You're asking online writers to apply uncertain legal precedents to complex and unclear facts with little to no time to analyze the complexities.

Only unlike police officers who get substantial training into the law, most online writers have no working knowledge of first amendment law. You've got a 24 year old guy or girl sitting in front of his or her computer screen or phone with the ability to reach as many people instantaneously as CNN or the New York Times or Fox or ESPN by clicking publish. You don't have time to sit around a conference table and discuss the legalities of a decision. Everything is being decided in real time and every fact pattern isn't clear. We don't know what the law will say in five years about this decision. We don't even know what the law is right now. And the person making the publication decision probably has no legal training.  

That's why I compare online writing now to policing. Much of the Supreme Court's criminal jurisprudence deals with governing police behavior, what is or is not appropriate for a police officer to do? Several justices eventually hit on an important part of their job: shouldn't our rulings be giving police officers in the field bright line rules as to what's legal and what's illegal when it comes to pursuing criminal activity?

That is, it's one thing for lawyers to debate legal complexities for five years in a court case, but it's another thing entirely to require a police officer to accurately apply the rulings in real time while real life is happening. Legal theory is great, but doesn't the court also need to provide guiding principles to people trying to apply complex rules in real life?

I think the same can be said of online writing now. We need a smart case that will update the law to reflect present online publication realities. It isn't necessarily that New York Times v. Sullivan is outdated -- although that could be true -- it's the that the factual framework of the law in the 1960's doesn't remotely fit the reality of online publication in the 2010's.

If Gawker gets hit with a massive verdict in the Hulk Hogan case, the natural reaction will be for most online companies to be much more cautious about what they publish. It's unlikely that sex tapes will be published as frequently online, but what about a private audio recording or what if there's a dispute over whether the tape was made consensually? The facs won't be the exact same nex time. And what if Gawker dodges liability because this particular jury doesn't side with Hulk Hogan? There will still be no established legal precedent to follow for online writers. 

Having worked for Gawker and given the millions of words they'd already published before I guarantee you that A.J. Daulerio never thought that clicking publish on a single post in October of 2012 could bankrupt his company. He never thought about it. He never believed he'd be sitting in a court room in Florida with his company's fate on the line. 

But the reality is, the law is so unclear in this arena, that this case just might bankrupt Gawker.

Is Hulk Hogan a real American hero fighting for what's right?

I'm not sure.

But before all is said and done he might become one of the most important figures in American legal history.

Take that, brother.   

Written by
Clay Travis is the founder of the fastest growing national multimedia platform, OutKick, that produces and distributes engaging content across sports and pop culture to millions of fans across the country. OutKick was created by Travis in 2011 and sold to the Fox Corporation in 2021. One of the most electrifying and outspoken personalities in the industry, Travis hosts OutKick The Show where he provides his unfiltered opinion on the most compelling headlines throughout sports, culture, and politics. He also makes regular appearances on FOX News Media as a contributor providing analysis on a variety of subjects ranging from sports news to the cultural landscape. Throughout the college football season, Travis is on Big Noon Kickoff for Fox Sports breaking down the game and the latest storylines. Additionally, Travis serves as a co-host of The Clay Travis and Buck Sexton Show, a three-hour conservative radio talk program syndicated across Premiere Networks radio stations nationwide. Previously, he launched OutKick The Coverage on Fox Sports Radio that included interviews and listener interactions and was on Fox Sports Bet for four years. Additionally, Travis started an iHeartRadio Original Podcast called Wins & Losses that featured in-depth conversations with the biggest names in sports. Travis is a graduate of George Washington University as well as Vanderbilt Law School. Based in Nashville, he is the author of Dixieland Delight, On Rocky Top, and Republicans Buy Sneakers Too.