Before Celebrating Gawker’s Demise, Consider This

Forget for a moment the question about whether celebrity sex tapes are “newsworthy.” The real question is whether we want juries determining what is, and what is not “newsworthy.”

In March, a Florida jury awarded Hulk Hogan a plum $140 million in his suit against Gawker.com (Bollea v Gawker). Hogan argued that Gawker’s publication of a sex tape was an invasion of privacy, having no “news” value.

If one verdict can put a media company out of business, this seems very much like a form of arbitrary regulation of the press. As I write, Gawker Media appears to be in financial tailspin. In May, Gawker was denied its motion for a new trial or reduction in damages. Gawker was ultimately forced to declare bankruptcy, and its sale to Univision was quickly approved. Then, on August 18, it was announced that Gawker.com would cease operations.

And there seems to have been little love lost for the tawdry gossip site, which trolled the private lives of celebrities and politicians for over a decade.

The successful suit has already inspired similar legal threats by other another star: Melania Trump, who considers herself to be harmed by “hurtful,” “damaging,” and “false” reporting by other news organizations.

Slippery Slopes

Despite grave anxiety within the media over Bollea’s Constitutional implications, any layman searching for an excuse to celebrate Gawker’s demise need only cite the obligatory canard that not all speech is protected: Because, well, free speech and all that jazz, but you can’t shout fire in a crowded theater!

Then again, those of us who have read Schenck v. United States probably die a little inside every time we hear this tripe. (tl;dr: Charles Schenck never shouted fire in any theater. He was convicted under the Espionage Act of 1917 for handing out anti-war pamphlets, encouraging people to oppose the draft and World War I. Oliver Wendell Holmes called this a “clear and present danger,” after wringing his hands about imaginary men shouting fire in imaginary theaters).

While Bollea does not raise the specter of a “clear and present danger,” this “newsworthiness” exception to the First Amendment is proving to be no less arbitrary.

Basically, it appears that once a journalist crosses the Rubicon from “newsworthy” into “sensationalism,” the First Amendment vanishes.

SOURCE

Not sure I agree with the above.  It was a right to privacy that was breached.  The First Amendment does not rule out privacy and most countries do have laws protecting privacy to some degree.  So it is a widely recognized right