Hulk Hogan vs. Gawker - The Sex Tape and the $140M Award (1 Viewer)

[manamongkids]

Gawker didn't publish anything that caused Hulk to lose his job. The racist comments were not included in the tape they released and so have no bearing on damages in the case. They are relevant, but are not in Hulk's favor because they go toward whether he was arguing in good faith that the suit was pursued for any actual damages rather than simply to chill speech relating to the rest of the recordings that were circulating.

The Andrews case is actually a perfect example of how to litigate something like this if the plaintiff thinks they actually have a leg to stand on. You'll notice that she didn't go after any of the many sites that published the tape, but rather the parties who facilitated the recording itself. In the Hulk case, that would have been Bubba and his wife. But of course, going after the videographer wouldn't have discouraged publication of the racist comments, which was his intent all along.

You say that "free speech is tricky here". It really isn't. The only appellate decision reviewing the facts found against Hulk and made it clear that it wasn't even a close decision. It will be appealed again and Gawker will win. If you think it's tricky then it should be a relative flip and you should be very happy to get laid 2:1 on the result. My $300 to your $150 that, if appealed, the final result (by decision of the court hearing whatever final appeal is taken) is in Gawker's favor.

Rule #1b for PCF members, dont get into a legal debate with @jbutler

Rule #1a for reference is no thread crapping

 

[SixSpeedFury]

 

[jbutler]

View attachment 35909

You got scooped by Clay almost 6 hours ago at post 11.

 

[SixSpeedFury]

D'oh!

 

[stocky]

Tldr

But @jbutler would you say that a porn star who made a private sex tape with their partner should be allowed to be released by a media outlet because that is also their job?

 

[jbutler]

Tldr

But @jbutler would you say that a porn star who made a private sex tape with their partner should be allowed to be released by a media outlet because that is also their job?

Doesn't seem so unless there is some controversy regarding the particular sex tape that has become the subject of public concern. If you look at that appellate court decision linked to above the Court cites to a case concerning the Bret Michaels/Pam Anderson sex tape and its publication was not protected notwithstanding Pam Anderson's previous widely distributed sex tape. The rationale was that the subsequent tape was not of any legitimate public interest or concern.

 

[Chicken Rob]

I'm no lawyer, and certainly don't understand media rights ownership, but it seems to me that Gawker received the tape from what would seem to me, it's owner. The guy who shot the video probably doesn't have a release/concent to distribute this. It seems like he's the one breaking the law here. Why is this not that simple?

 

[jbutler]

I'm no lawyer, and certainly don't understand media rights ownership, but it seems to me that Gawker received the tape from what would seem to me, it's owner. The guy who shot the video probably doesn't have a release/concent to distribute this. It seems like he's the one breaking the law here. Why is this not that simple?

This was the crux of Hulk's first suit. Go back to the links from the OP (specifically the one relating to the IP issues) and you'll see how that played out and why the results of that litigation (settlement by Bubba for $5k) indicate that Hulk was really only interested in going after Gawker as a means of creating a chilling effect on all media coverage of his racist rantings.

 

[Poker Zombie]

I guess the area I'm lost in now is the "legitimate public interest or concern". I may actually need to read all the links in the OP to form a better decision, but in the end, it really takes the full trial to make the same informed decision that the court made.

I'm still too undecided to vote in the poll. Jbutler has me seeing things his way, but I tend to think that courts usually make the correct decision (based on the legal arguments). Free speech is my favorite amendment (most used, though #21 comes pretty close), and anything that degrades it, even a little, is of great concern to me.

On the other hand, I understand that Hogan did not want the film released. If he released it publicly, I would say that that it is forever fair game. In this case he did not release it. Even by talking about it, it does not become fair game, but this is where "legitimate public interest or concern" pokes it's head in, and I don't fully understand how a public figure is entitled to fewer rights of privacy than you or I.

 

[jbutler]

I guess the area I'm lost in now is the "legitimate public interest or concern". I may actually need to read all the links in the OP to form a better decision, but in the end, it really takes the full trial to make the same informed decision that the court made.

I'm still too undecided to vote in the poll. Jbutler has me seeing things his way, but I tend to think that courts usually make the correct decision (based on the legal arguments). Free speech is my favorite amendment (most used, though #21 comes pretty close), and anything that degrades it, even a little, is of great concern to me.

On the other hand, I understand that Hogan did not want the film released. If he released it publicly, I would say that that it is forever fair game. In this case he did not release it. Even by talking about it, it does not become fair game, but this is where "legitimate public interest or concern" pokes it's head in, and I don't fully understand how a public figure is entitled to fewer rights of privacy than you or I.

Just read the appellate court decision linked to earlier in the thread. They lay it out relatively clearly.

 

[Poker Zombie]

Slowly getting there. Forming new neural pathways to fully understand constitutional law. This takes time...

The Florida law under which Hogan sued, like laws in many other states, says that someone who publicizes embarrassing private facts about another person is liable for damages.

This is where I see Hogan's argument breaking down. Before this, I thought it was a case of the tape being made and shown. I now understand it was not.

You see, just because Hogan (or anybody else) talks about their sex life, I don't have implicit consent to hide a camera in their room and broadcast the activities inside. But the plaintiff in this case wasn't arguing about the tape being released, he was arguing that it was embarrassing. On this alone, I think the case should be overturned. In fact, I'm stunned that it even went to trial.

I'll continue to read up on this, but I'm 90% in the "Yes" camp now. The remaining 10% holds that I'm missing something that allowed this to go to trial in the first place.

 

[DrStrange]

A lot of the "chilling effect" could be resolved by damage caps. This wouldn't be a thing if the award from Gawker to Hogan had been $5,000

 

[jbutler]

A lot of the "chilling effect" could be resolved by damage caps. This wouldn't be a thing if the award from Gawker to Hogan had been $5,000

From a practical perspective you're right of course but I would still be vehemently opposed to it on First Amendment grounds.

Also, attendant with the damage caps would probably be a fee-shifting provision which is not an insubstantial thing. Legal fees in these cases almost always include appeals and can easily run past the million dollar mark. Sure, it's a sight lower than $140 mil, but it's still a significant amount of money for upstart media organizations which might be the ones most likely to give coverage to controversial material in order to obtain attention.

 

[DrStrange]

Just the exposure to legal costs is a huge deal when the power of the litigants is uneven. It matters little that "someday" a party to a legal action might get some of their legal costs back when they will be bankrupted long before "someday" ever gets here. The sad situation is poorer people and "small" businesses have fewer effective rights and options than wealthy actors. Free speech in practice is hard for the lesser members of society to claim because they often can't bear the financial burdens.

 

[jbutler]

Just the exposure to legal costs is a huge deal when the power of the litigants is uneven. It matters little that "someday" a party to a legal action might get some of their legal costs back when they will be bankrupted long before "someday" ever gets here. The sad situation is poorer people and "small" businesses have fewer effective rights and options than wealthy actors. Free speech in practice is hard for the lesser members of society to claim because they often can't bear the financial burdens.

I promise you if the legislation I described above - with your damages cap and with my fee-shifting provision - plaintiffs would have plenty of enterprising attorneys taking cases on contingency. Plaintiffs wouldn't pay a dime and it would only encourage more obstinacy among plaintiffs' attorneys causing the defendants to have to shell out the entire time while the plaintiff holds out for a total win before settling.

Obviously I'm aware of the virtues of encouraging settlements, but constitutional cases - especially First Amendment cases -are not those types of cases I want to bring into that sphere.

 

[brianb10]

Because our legal system is anything but black and white you'll have to excuse my rather simple minded viewpoint from an average Joe. I have never agreed that the people have the right to know everything about everybody all of the time. It seems to me quite a stretch for the 1st Amendment to be used as justification to make news rather than just report it. I can't support a "news" organization arguing that Hulk Hogan or any other person's private life is the business of the public.

 

[jbutler]

Because our legal system is anything but black and white you'll have to excuse my rather simple minded viewpoint from an average Joe. I have never agreed that the people have the right to know everything about everybody all of the time. It seems to me quite a stretch for the 1st Amendment to be used as justification to make news rather than just report it. I can't support a "news" organization arguing that Hulk Hogan or any other person's private life is the business of the public.

Did you read any of the posts in this thread or any analysis at all if this case? Despite saying this is anything but black and white, you seem to have drawn the simplest possible conclusion that acknowledges none of the complexity of the relevant questions.

 

[Poker Zombie]

Because our legal system is anything but black and white you'll have to excuse my rather simple minded viewpoint from an average Joe. I have never agreed that the people have the right to know everything about everybody all of the time. It seems to me quite a stretch for the 1st Amendment to be used as justification to make news rather than just report it. I can't support a "news" organization arguing that Hulk Hogan or any other person's private life is the business of the public.

If you've ever expressed a negative opinion about someone, you've exercised the right of free speech. You shouldn't look at the case from the standpoint of "sex tape", and just shift it to tape. The issue here isn't sex, it's what can or cannot be published - which is a broader form of speech. If you posted a video of Donald Trump picking his nose, and the Donald didn't like it, should he be allowed to tell you to take it down, and sue you for everything?

Politics aside, The Supreme court has to look at tough decisions like this all the time. As one political party right now demands to "not even consider" replacing the recently deceased Judge, they are weakening our country - forever. The courts will have to make decisions with one less mind up there to make virtually irreversible decisions that will dictate how all future decisions will be made.

I'm not one to reach for the panic button. I actually don't believe in any "slippery slope" arguments. But a decision that says Hogan can sue because he didn't like what a website published is very bad for our first amendment. A Presidential candidate - and the front runner in his party - wants to "open up libel laws" to go after journalists who dare criticize him. He's promised that leading news organizations — The New York Times and The Washington Post, for instance — would "have problems." That's also very bad for our 1st amendment.

You might not need to take action yet, but be very aware of what is going on. Simple-minded is one thing. People cannot help that. complacent, when you're intelligent enough to understand, is egregious.

 

[brianb10]

Did you read any of the posts in this thread or any analysis at all if this case? Despite saying this is anything but black and white, you seem to have drawn the simplest possible conclusion that acknowledges none of the complexity of the relevant questions.

Yes I did draw a very simple conclusion. I am extremely dis-trusting of and all but despise the media. I know I am biased in my view of this case which is why it's good I am not a judge or member of the jury. I can accept that. I personally feel that society has forever been changed in a bad way with the advent of instant, 24/7 news organizations. They all make the news instead of just reporting it. Hulk Hogan's sex life or even his sexist/racist rantings are not news to me.

I don't mean to detract from your in depth analysis as it's fascinating conversation. However, sometimes you need the simple outlook because then the basic issue gets forgotten in all the, and I don't mean this with any disrespect, legal mumbo jumbo. To me, when the media is concerned, the basic issue is that just because you can doesn't always mean you should.

 

[brianb10]

If you've ever expressed a negative opinion about someone, you've exercised the right of free speech. You shouldn't look at the case from the standpoint of "sex tape", and just shift it to tape. The issue here isn't sex, it's what can or cannot be published - which is a broader form of speech. If you posted a video of Donald Trump picking his nose, and the Donald didn't like it, should he be allowed to tell you to take it down, and sue you for everything?

Politics aside, The Supreme court has to look at tough decisions like this all the time. As one political party right now demands to "not even consider" replacing the recently deceased Judge, they are weakening our country - forever. The courts will have to make decisions with one less mind up there to make virtually irreversible decisions that will dictate how all future decisions will be made.

I'm not one to reach for the panic button. I actually don't believe in any "slippery slope" arguments. But a decision that says Hogan can sue because he didn't like what a website published is very bad for our first amendment. A Presidential candidate - and the front runner in his party - wants to "open up libel laws" to go after journalists who dare criticize him. He's promised that leading news organizations — The New York Times and The Washington Post, for instance — would "have problems." That's also very bad for our 1st amendment.

You might not need to take action yet, but be very aware of what is going on. Simple-minded is one thing. People cannot help that. complacent, when you're intelligent enough to understand, is egregious.

Thanks. Yes I was focused on the sex tape but I don't feel that shifting focus to the 1st amendment changes my opinion. As I stated in my previous reply to @jbutler just because the 1st amendment says you can doesn't always mean you should. I am biased against the media I know and I also know that I am shifting the conversation but I am not sure who I think is the bigger problem, the media or the people who keep them in business which is us.

None of this is to say that I support Hogan's lawsuit or Trumps promises/threats.

 

[jbutler]

Thanks. Yes I was focused on the sex tape but I don't feel that shifting focus to the 1st amendment changes my opinion. As I stated in my previous reply to @jbutler just because the 1st amendment says you can doesn't always mean you should. I am biased against the media I know and I also know that I am shifting the conversation but I am not sure who I think is the bigger problem, the media or the people who keep them in business which is us.

None of this is to say that I support Hogan's lawsuit or Trumps promises/threats.

The First Amendment saying you "can" is the point of this entire thing. The law should have nothing to say about what you "should" do, only about what is permitted. And if the First Amendment protects publication, then a media organization cannot be sued for publishing.

You said above that "It seems to me quite a stretch for the 1st Amendment to be used as justification to make news rather than just report it." I agree. And if you read the thread you'll see this has been discussed in several posts by me and others. Gawker didn't "make news" here. It reported the news that was available to it. It was provided a video and the subject of that video had been "made news" by numerous public comments by Hulk himself and it published the video which it had been provided because it was relevant to the coverage of the particular sexual relationship which Hulk had discussed, but of which he had denied full knowledge.

 

[Jeff]

https://gma.yahoo.com/gawker-media-files-bankruptcy-171505396--abc-news-celebrities.html

Gawker declares bankruptcy and has at least one buyer. I don't like reading Gawker as I don't like their approach. It'll be interesting to see if this loss will affect what their approach will be in the future.

Sounds like someone else could bid more for the assets if there were such a buyer.

 

[RainmanTrail]

I apologize for not having time to read through all the relevant details and being mostly ignorant about law, but I was under the impression that the reason this was such a big deal is that Hogan was baited into having sex with this guy's wife while they secretly filmed him without his knowledge or consent. Then, they published it. If these allegations are true, is this still a 1st amendment issue? I believe that you can't even record a phone conversation and publish it without the other party's consent - although I believe the laws vary on the specifics of what's allowed from state to state?

Tricking a celebrity into making a sex tape and then publishing and profiting from it ought to be pretty harshly punished in my book. If that is indeed what happened, then I support the decision to rule in Hogan's favor. 140 million dollars though?... Nah

 

[Mental Nomad]

Just the exposure to legal costs is a huge deal when the power of the litigants is uneven. It matters little that "someday" a party to a legal action might get some of their legal costs back when they will be bankrupted long before "someday" ever gets here. The sad situation is poorer people and "small" businesses have fewer effective rights and options than wealthy actors. Free speech in practice is hard for the lesser members of society to claim because they often can't bear the financial burdens.

And the inequality here is even greater when you consider that the suit against Gawker was actually funded by Billionaire Peter Thiel in hopes of bankrupting them.

http://www.forbes.com/sites/ryanmac...-hogans-lawsuits-against-gawker/#5400b6e97805

 

[chkmte]

Let me tell you something brother

Is that chum Lee in your avatar @iBetOnEverything ?

 

[trever]

Scott Adams weighs in on the business case for buying Gawker:

http://blog.dilbert.com/post/145752012716/gawker-goes-bankrupt

 

[jbutler]

Well, Gawker is over. It will stop publishing next week, having been bought by Univision at a bankruptcy auction, the bankruptcy necessitated by the retarded Florida law that requires appealing parties to post a bond for the amount of the verdict (the bond amount capped at $50M) in order to appeal.

This piece by Phillip Bump at the Washington Post is a great eulogy (one of many that I'm sure will soon follow) and this piece by Adrian Chen at The New Yorker explains why Gawker produced some of the finest journalists of the last decade.

And Gawker really did produce some of the best and most readable journalists working today: Hamilton Nolan, Tom Scocca, Adrian Chen, Richard Lawson, Choire Sicha, Elizabeth Spiers, Alex Pareene, Ashley Feinberg. I'm sure I'm missing half a dozen who deserve to be mentioned. It's a massive loss that they are shutting down.

If you're really hungry (but not really, really hungry since it's only 136 pages), Gawker: An Oral History is also fantastic, though it's a year old now and so obviously doesn't get into the latest news.

 

[Poker Zombie]

R-Law was (is) one of my favorite writers. Like Bergs, but seemingly untiltable. I didn't spend a lot of time on Gawker, but it's sad to see it go - not because of a lack of income, but a stupid lawsuit.

At least we still have Fox news.

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shit.

 

[jbutler]

R-Law was (is) one of my favorite writers. Like Bergs, but seemingly untiltable. I didn't spend a lot of time on Gawker, but it's sad to see it go - not because of a lack of income, but a stupid lawsuit.

At least we still have Fox news.

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..
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shit.

Fortunately for Richard Lawson, he already got a new gig years ago - he's been writing for Vanity Fair as well as co-hosting the very good podcast Little Gold Men.

I'm far more upset about the shutdown than I thought I would be even though I knew it was inevitable for some time. Phillip Bump's opening line in his article I linked to above makes clear how integral Gawker was/is to web journalism:

If this is your first day reading an article on the web: Hello and welcome. If it isn't, you should be aware that much of what you've read on the web to this point has been shaped by the style and brashness of Gawker.

Completely absurd that it will be gone and that its sister sites will now exist only as subsidiaries of fucking Univision.

 

[Psypher1000]

Does anyone know what this will mean for the rest of the Kinja network? Does Gawker own the Kinja platform, and thus all the other sites are toast? Or will the sites like Gizmodo, io9, Deadspin, etc. still be up and running?