Why Hulk vs. Gawker Is Not About Privacy vs. Free Speech

ST PETERSBURG, FL - MARCH 08:  NY POST OUT  Terry Bollea, aka Hulk Hogan, testifies in court during his trial against Gawker
ST PETERSBURG, FL - MARCH 08: NY POST OUT Terry Bollea, aka Hulk Hogan, testifies in court during his trial against Gawker Media at the Pinellas County Courthouse on March 8, 2016 in St Petersburg, Florida. Bollea is taking legal action against Gawker in a USD 100 million lawsuit for releasing a video of him having sex with his best friends wife. (Photo by John Pendygraft-Pool/Getty Images)

The high-profile case of Hulk Hogan (real name Terry Bollea) against Gawker Media has prompted a flood of headlines, thinkpieces and blog posts characterizing the conflict between the two parties as "privacy versus free speech." This characterization misunderstands both concepts and obscures the important issues at stake in the case, whatever its ultimate outcome might be.

Privacy in not inherently at odds with freedom of speech; in fact, privacy is essential to free speech. No less an authority than Justice William O. Douglas wrote in 1971 that free discourse is impossible under surveillance: the individual's right to be "the sole judge of as to what must be said and what must remain unspoken" is the "essence of the idea of privacy implicit" in the First Amendment. In the 2001 case Bartnicki v. Vopper, the Supreme Court noted that "the fear of public disclosure of private conversations might well have a chilling effect on private speech." In that case, where the Court found that the First Amendment did protect the distribution of an audio recording of a private conversation between two prominent figures in a collective-bargaining negotiation, it emphasized that this was because the conversation dealt with matters of public concern. The Court went out of its way to note that this principle does not justify intrusions into purely private matters. Justice Breyer observed in his concurring opinion that privacy protections help "to overcome our natural reluctance to discuss private matters when we fear that our private conversations may become public."

In other words, the protection of privacy is vital to the protection of free speech. Importantly, that does not mean that the media is always barred from publishing private information. When the content involves matters relating to the public interest, individuals' privacy interests must often give way, especially if those individuals are public figures. That is because the First Amendment's protections are greatest when the speech in question touches on matters of public concern. The fact that a disclosure implicates privacy interests does not in itself deprive it of the First Amendment's protection.

Accordingly, one of the most important issues in a case like Bollea v. Gawker is whether the information disclosed was "newsworthy" or constituted a matter of "public concern." While these concepts are complicated and contested, the Court has offered some useful guidelines. In Snyder v Phelps (2011), the Court suggested that a matter is "purely private" if it does not contribute to "the free and robust debate of public issues" or the "meaningful dialogue of ideas." The Court cited, as a specific example of "purely private" matters, a prior case where it found that "videos of an employee engaging in sexually explicit acts" did not address a public concern; the videos "did nothing to inform the public."

In one of the most high-profile sex tape cases before Bollea's, Michaels v. IEG (1998), a federal court found that Pamela Anderson Lee's sex tape could not be deemed "newsworthy" merely because the two people depicted on the tape were public figures, and that Lee in particular was considered to be a sex symbol.

As the court noted, "it is difficult if not impossible to articulate a social value that will be advanced" by the distribution of a sex tape. In the Bollea case, Gawker offered no compelling arguments for the newsworthiness of the sex tape beyond general curiosity of the public regarding a flamboyant celebrity. If "newsworthiness" is defined as "whatever people want to see," then anything and everything is newsworthy, from post-surgery photos to Social Security numbers to videos of sexual assaults (or, as former Gawker editor A. J. Daulerio suggested, sex videos involving anyone above the age of four). This would grant the media a blanket exemption to the vast number of laws protecting privacy. It is obvious why some members of the media would welcome such a result, but the bare desire to sell papers, get clicks, or make money is not the value that the First Amendment protects.

There are other, less obvious consequences to an outcome favoring Gawker. No one disputes the characterization of Terry Bollea as a public figure or of Gawker as a representative of the media, but both of those designations have become increasingly blurry in the age of micro-celebrity and surreptitious recording devices.

Today, a thoughtless Tweet or amusing YouTube video can turn a private citizen into a viral sensation in minutes. People can become "famous" overnight simply by being the targets of sustained campaigns of vicious online harassment. And even indisputably private figures cannot expect different treatment: the video at the heart of the Gawker case didn't just expose a celebrity's sexual activity, but also his non-famous sexual partner. It is often the case that invading the privacy of one person necessarily means invading the privacy of other people, especially if sexual activity is involved. If Gawker ultimately prevails, it wouldn't just mean that public figures have no expectation of privacy in their most intimate activities -- it would mean that anyone a public figure has sex with has no expectation of privacy either.

Similarly, there is growing ambiguity about who should be considered a journalist in the Internet age. We probably all agree about the New York Times, but what about a self-proclaimed "reporter" with a camera and a blog but without any training in journalism or professional accountability? Is a fifteen-year-old kid flying a drone over his neighbor's backyard to take pictures of her sunbathing a "journalist"? Is the neighbor a public figure if someone, somewhere would want to see those pictures?

In a predictably self-serving post written after the jury verdict, Gawker founder Nick Denton still seems unable to make any intelligible argument for why the sex tape should be considered newsworthy. Instead, Denton attempts to shift focus by casting Gawker as the principled, marytred defender of free speech and Bollea as the depraved but popular celebrity playing on the public's sympathies. But Gawker is no doubt aware how this caricature does not match with reality. The media mocked Bollea mercilessly from day one about the controversy and pundits have made no secret of their contempt for what they consider to be Bollea's immoral and repugnant sex life. It is clear that much of the derision and hostility aroused by this case was influenced by prurient judgments and crude sexual curiosity about Terry Bollea, not high-minded principles of free speech. But rights are about principles, not people, and any victory for Gawker in this case would be a defeat for the principle of both privacy and free speech.

The publication of private, sexually explicit pictures and videos, sometimes called "revenge porn" or, more accurately, "nonconsensual pornography," can ruin people's careers, reputations, and lives. Most victims do not have the resources or the influence of Terry Bollea, and even he may ultimately lose on appeal.

This case, and all that it represents about the cynical appropriation of the First Amendment to justify the destruction of people's lives for profit or entertainment, makes it all the more pressing for Congress to pass strong federal legislation to protect sexual privacy. A bill sponsored by Congresswoman Jackie Speier (D-CA), the Intimate Privacy Protection Act, would do just that: prohibit the publication of private, sexually explicit photos and videos without consent and for no legitimate public purpose. Such a law is urgently needed to help safeguard the rights of all individuals to privacy and freedom of expression.