Monday, March 28, 2016
Cheating Spouse Rights vs. First Amendment
The recent headline-making case of Hulk Hogan vs. Gawker will be studied for years. Is it a victory for privacy or a black eye for the First Amendment – or both?
In case you are not familiar with the story, let me fill you in. Hulk Hogan used to be a prominent professional wrestler. Given the sport is fake, he’s really an athletic entertainer. He then moved onto doing reality T.V. shows. Now, at age 62, he was awarded $115 million because Gawker, a trashy news site akin to the National Enquirer, published a tape of Hulk engaging in sexual activity with the wife of his best friend. Hulk, who was married at the time, was given permission by his friend to cheat with his spouse. The friend is a radio shock-jock, Bubba the Love Sponge.
The issue is this: The sex video was made without Hulk’s knowledge nor did he give permission for its distribution. The woman supposedly didn’t know she was being recorded by her husband, though she knew he had security cameras in their house. The tape was posted online by Bubba – without their permission – and then Gawker posted it.
So who should be in trouble? Bubba filmed them illegally and took that tape and posted it illegally. Gawker then published what was already out there, on a small scale initially.
Does a celebrity have the right to privacy? Does a media outlet have a right to publish a story, regardless of how it obtained the information or what the subject matter is?
My gut tells me that Gawker should have used better judgment. Is it really of real news value to show a sex video of a B-celebrity? Did Gawker have the rights to that video?
Certainly, the verdict is idiotic. How often is $100M+ awarded to an individual? Even when larger sums are awarded, how could we justify a nine-digit sum when people who lose loved ones, are maimed or disabled are psychologically traumatized or are jailed illegally win far, far less than that?
Half the verdict is for actual damages. I doubt that Hulk suffered $60M in earnings losses once the tape leaked out. If anything, the publicity boosted his image.
Next, the rest is for emotional damages -- pain and suffering. Excessive. Many media outlets do far worse things – libel, defamation, or misstate crucial facts in a story – and pay way less than a $55 million penalty.
I don’t think the $115M verdict will stand on appeal and subsequent negotiations it will get knocked down a lot. The punitive damages were then set at $25M. So he could get $140M!!
I want to defend the free speech rights of the media and book publishers but the line has to be drawn somewhere. Does America have a right to know -- and see -- who a banged-up celebrity is sleeping with? If evidence or content is obtained illegally, does the end justify the means?
We don’t want to reward or inspire sites like Gawker to illegally post videos like these but we don’t exactly want to cripple them from pursuing news either. If they got a secret video of Trump snorting coke, or of Michelle Obama bedding Putin, you bet they should publish it. That’s relevant, important news. But even then, do we want Gawker participating in hacker tricks, checkbook journalism, or trading in stolen videos?
For authors, where do we draw distinct lines for them? Can they write books based on viewing such videos? What rights or protections do they have in comparison to a news media outlet?
Only in America can a cheater win a huge windfall for being exposed. What’s next? You punch someone in the face but sue the victim because your hand hurts? Or maybe you commit fraud, take the money and commit other crimes but you blame the fraud victim for making it so easy to steal from them.
Stranger things have happened. Just ask Hulk Hogan.
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Brian Feinblum’s views, opinions, and ideas expressed in this blog are his alone and not that of his employer. You can follow him on Twitter @theprexpert and email him at firstname.lastname@example.org. He feels more important when discussed in the third-person. This is copyrighted by BookMarketingBuzzBlog © 2016