Considering everything else going on, the thought of the U.S. Supreme Court arguing a case involving Hulk Hogan seems strangely appropriate.
But the startling $140 million judgment(s) a Florida jury recently awarded the ex-wrestler in what was defined as an “invasion of privacy” suit against the snarky (and popular) website Gawker — for posting a sex video of Hogan and a DJ’s wife — has serious people concerned about what this portends for journalism. (This being an age where everyone with a web address can be considered a publisher little different from The New York Times.)
Similar to the Hogan matter, a case here in Minnesota involving the reality TV show “The First 48” is also testing common definitions of journalism. For the show, the Minneapolis Police Department signed a contract giving producers access to work they are now being denied access to — on grounds the producers are journalists, protected by traditional shield laws.
Both cases prompt some basic questions, not the least of which are: What is journalism? And what do we mean by ‘newsworthy’?
Soon after news of the first Hogan verdict broke last week, Jane Kirtley, director at the Silha Center for Media Ethics and Law at the U of M, filed a commentary for The Times’ “Room for Debate” blog, saying, “Unlike in libel cases, which involve false statements that harm the reputation, plaintiffs who sue for invasion of privacy argue that the press should not be allowed to report truthful information about them without their consent. If their desire for privacy was the only consideration, public figures could suppress any embarrassing facts about themselves. But because the First Amendment requires balancing competing interests, juries must also decide whether the information is a matter of legitimate public concern – newsworthy, for short.”
In an email, she amplified her thoughts, saying: “I [tried] to make the case that HH’s suit is dangerous because a victory could be extended to any famous person who wants to suppress unflattering material about himself. Make no mistake: Hogan did not suffer emotional distress. He did, however, recognize that his right to exploit the material personally was imperiled. It is all about control, as I see it. I am not defending Gawker’s editorial choices per se, though like it or not, they have a large audience for what they publish. I am, though, worried about the long-term implications of this verdict for legitimate reporting on public figures. I would anticipate at least part of it will be overturned on appeal.”
Kirtley’s colleague, Chris Ison, a Pulitzer Prize-winner for his work at the Star Tribune who now teaches at the U’s School of Journalism and Mass Communication, echoed those thoughts: “I’m not a lawyer, of course, but it would seem that Jane is right that legally, the case could be bad for journalism if it stands,” Ison said. “Not because journalists should be interested in showing video of sexual activity. But I wonder if it could start defining what private facts about public people are newsworthy. Can we report on a political candidate having an affair? How much detail is OK to provide before it’s seen as an invasion of privacy? Is an extremely detailed description OK but not certain images? Gets pretty gray.
“To me, the clearer legal issue is whether you obtained the information legally. I want to be clear that, ethically, I would never support what Gawker did. Even if you think that an affair by Hulk Hogan, a very public figure, is newsworthy, the video, to me, is not. But millions of people seemed to think it was worth watching. Does that mean they found it newsworthy? Seems like a matter of opinion, and whether to broadcast it and view it was an ethical judgment, however misguided. Practically speaking, the big concern is that media that’s all about prurient interest or profit gets thrown into the same bucket as serious news media in the view of some of the public. That’s happening more, which discredits good journalism. But that’s about culture and ethics and opinion more than it’s about law, it seems to me.”
If not wiped out or reduced on appeal, the judgments against Gawker Media, which operates a handful of popular sites, (Jezebel, Jalopnik, Gizmodo, etc.) have the potential to drive the company out of business, which only adds to the chill the case could cast over professional journalism. Not that, as Kirtley and Ison emphasize, a lot of professional journalists have much if anything good to say about how Gawker handled the story, or if the Hogan video can even be called a story.
Clearly, Gawker posted the video because it could. Its defense was that besides Hogan being a public figure, he has built a hefty slice of his persona on claiming to be some kind of super sex machine. (Adding to the overall squalor of the case, the woman involved was the wife of the notorious Tampa area shock jock, Bubba the Love Sponge. “Mr. Sponge,” as the Times might say, not only encouraged the tryst — one of several between Hogan and the missus, but filmed the episode and sat in a nearby room watching the action. Hogan of course claims he knew nothing about the camera.)
It is an understatement to say the jury, which took only six hours to reach its verdict, was wholly unimpressed with Gawker’s defense. The takeaway being that average citizen jurors (in Florida, no less) found the exploitation of Hulk Hogan — a flagrant-to-incessant self-exploiter — so distasteful they hammered the offender, Gawker, with a judgment larger than Hogan’s lawyers had asked for.
Gawker Media’s founder and managing editor, Nick Denton, has responded to the judgment with a long post suggesting, among other things, that Hogan’s “true motivation” for filing suit was to scare Gawker away from posting recordings of him using racial epithets. Denton’s counterargument to the invasion-of-privacy claim is: “Celebrities, especially ones as public about their personal and sex life as Hulk Hogan, have a narrower zone of privacy than ordinary people. Regardless of questions about Gawker’s editorial standards and methods, self-promoters should not be allowed to seek attention around a specific topic and then claim privacy when the narrative takes an unwelcome turn. The benefits of publicity come at a price; and for someone like Hogan, whose whole life is a performance, it’s a full-time and long-term commitment.”
In a commentary at Bloomberg, Noah Feldman, a Harvard professor of constitutional law, wrote: “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.”
Kirtley concurs. When I asked Ison and her if they could imagine the language a court or some legislation would have to use to separate journalism that is essentially prurience-for-profit from traditional reporting, she replied, “No court or legislation constitutionally could do that. The First Amendment does not exist to protect a ‘responsible’ press. As you know, I am in Europe this semester. They love drawing such distinctions. The First Amendment is not conditional in that way. Thank God and James Madison.”
The “First 48” case here in Minneapolis isn’t about an invasion of privacy. But it, too, involves a questionable assertion of “journalism.” (Here’s Andy Mannix’s coverage of the flap for the Strib.)
As with Gawker’s motivations for running the Hogan video, Kirkstall Road Enterprises, the company producing the show for the A&E channel, would seem to have profits — not informing the public — as its priority.
Ison though, advises a fuller consideration. “The issue with ‘The First 48’ show is an easier case to judge. Given that it’s a so-called ‘true crime’ show, it would seem to be a form of journalism. The case is real, the footage is presumably all legitimate, as far as I know. I don’t follow the show, and obviously, these kinds of shows can sometimes get a bit fast and loose by adding drama, music, questionable narration and the like. But it seems to me that there’s enough journalism in a show like that, with information that’s of interest to the public, that privileges like shield laws legitimately apply.
“This is getting to be a huge issue, of course. It’s getting very hard to define journalism these days. So much of what we see in various forms of media stretches the boundaries. And it’s hard to see how some of these kinds of shows can be compared to what we are used to seeing in mainstream news media. Then again, 30 years ago, who’d have considered TMZ legitimate news media? But it breaks stories all the time that traditional media follow. Along with junk. Kind of like the National Enquirer breaking the John Edwards affair. Sometimes journalism comes from strange places that you might not respect, but it’s still journalism.”
Says Kirtley, “I am always unhappy when media organizations cut deals with the authorities in exchange for access. Inevitably it is a Faustian bargain because independence (that is, who controls editorial decisions) can be compromised. I believe journalists’ shield laws should be interpreted broadly to include anyone who is doing ‘journalism’ that is, gathering information for dissemination to the public. But here in the U.S., at least, that has meant doing so independently. I don’t know the details in this instance, but I note that there have been cases where journalists have been seen to be so intertwined with the cops that they have been deemed to be ‘state actors.’ ”
With discussions of the Hogan case making comparisons to the surreptitious videotaping of sportscaster Erin Andrews (a public figure) and the hacking/distribution of nude photos of actress Jennifer Lawrence (ditto), there is a sense that, at the very least, the definition of “newsworthiness” needs a fresh interpretation in an era when a nearly limitless supply of purely prurient material is available for publishing, with constitutional protection, to a subgroup of consumers happy to regard it as “news.”
As for the Minneapolis cops who signed a contract to be videotaped, I’m not a lawyer, but I’m a little surprised they didn’t negotiate in a clause giving them full access to whatever Kirkstall shot. “It’s possible that ‘The First 48’ wouldn’t negotiate a deal that allowed MPD to have the video,” says Ison. “It would be like a newspaper reporter sending a draft of a story to a source before publication. The program apparently came close to doing that by agreeing to show the department a ‘near final’ episode, but that’s at least a little better than giving them a copy.”
“I, too, am surprised that the cops didn’t do a deal” to give them access, said Kirtley.
Maybe next time.