Privacy, the First Amendment and Hulk Hogan's $140.1 million jury verdict.

Author:Harder, Charles J.
 
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  1. INTRODUCTION 1 II. BRIEF SUMMARY OF THE FACTS 2 III. THE BROADER IMPLICATIONS OF BOLLEA V. GAWKER MEDIA 4 IV. AUTHORITIES SUPPORTING THE RIGHT OF PRIVACY 5 V. AUTHORITIES SUPPORTING THE FIRST AMENDMENT 18 VI. PROFESSOR MIKE FOLEY ON JOURNALISM ETHICS 28 VII. OPINIONS OF LEGAL EXPERTS 34 VIII. YOUGOV.COM SURVEY, MARCH 2016 36 IX. CONCLUSION 36 I. INTRODUCTION

    On October 15, 2012, Terry Bollea, professionally known as "Hulk Hogan," filed a $100 million lawsuit against Gawker Media, LLC, its founder/CEO Nick Denton, and its then-Editor-in-Chief of gossip website Gawker.com, A. J. Daulerio. In March 2016, a Florida jury returned a verdict in his favor in the amount of $55 million in economic damages, plus S60 million in emotional distress damages, plus punitive damages of $15 million against Gawker Media, $10 million against Denton, and $100,000 against Daulerio, for a total award of $140.1 million.

    This article discusses the legal authorities that apply to the right of privacy and the First Amendment to the U.S. Constitution, within the context of video, audio or photographic content that is private in nature and exposed publicly, against the consent of the subject. While the Bollea case happens to involve a worldwide celebrity, the legal authorities discussed herein apply to celebrities and non-celebrities alike--all of whom are deemed by courts to have privacy rights and, conversely, all of whom can be the fair subject of news reporting.

    The vast majority of legal authorities cited herein form the basis of the legal arguments by both Bollea and Gawker in their respective court papers supporting and opposing numerous motions in the underlying case, including motions for a temporary injunction, motions to dismiss, motions for summary judgment, and various pre-trial and post-trial motions. These same legal authorities are expected to form the basis of Gawker's appeal to the Florida appellate courts and beyond. This article includes additional legal authorities, for a more comprehensive discussion, as well as a short discussion about journalism ethics, as explained by Professor Mike Foley of the University of Florida College of Journalism and Communications. This article is intended to serve as a guide to any attorney, judge or other legal practitioner on the laws pertaining to the rights of privacy and the First Amendment to the U.S. Constitution.

  2. BRIEF SUMMARY OF THE FACTS

    In mid-2007, Bollea was recorded without his knowledge or consent in a private bedroom, without clothing, engaged in private activities with a woman. The woman was Heather Clem, the wife of Bollea's best friend, Bubba the Love Sponge Clem. The encounter occurred with the encouragement of Bubba and Heather. Bollea was unaware the encounter had been recorded until five years later, in 2012.

    In late September 2012, Gawker received from an alleged "anonymous" source, a DVD containing a 30-minute video of the encounter. Gawker edited it into a 1 minute 41 second "highlight reel" (Daulerio's term) which included about ten seconds of footage of Bollea fully naked, receiving oral sex, and engaging in sexual intercourse. The video also included a minute and a half of the private bedroom conversations, before and after sex, of Bollea and Ms. Clem.

    Gawker posted the video the afternoon of October 4, 2012. The next morning, Bollea's counsel immediately demanded the video be removed from Gawker.com, and said that if it was removed, Bollea would consider the matter resolved. Gawker refused to remove the video. Millions of viewers flocked to Gawker.com to watch the video, and the web traffic was driving revenue and converts to the Gawker family of websites (eight in all). Gawker kept the video at Gawker.com, knowing that Bollea had been secretly filmed. The video remained at Gawker.com for six months, and more than 60 other websites (mostly porn sites) lifted the same 1:41 video from Gawker.com and played it at their own websites. More than 7 million people watched the video on the Internet: 2.5 million at Gawker.com and 4.5 million at the other sites.

    Bollea's complaint, filed on October 15, 2012 (eleven days after the video was posted), alleged causes of action for invasion of privacy/public disclosure of private facts, invasion of privacy/intrusion, misappropriation of right of publicity, and violation of Florida's Secured Communications Act (also known as the "Wiretap Act"). In March 2016, nearly three-and-a-half years after suit was filed, the jury entered its award.

  3. THE BROADER IMPLICATIONS OF BOLLEA V. GAWKER MEDIA

    Two weeks before the March 2016 Bollea v. Gawker Media jury trial, former ESPN on-camera reporter Erin Andrews (1) went to trial against a person who secretly recorded her naked in a hotel room and published the video recordings to the Internet. She also brought claims against the hotel that allowed the person who recorded her to book a hotel room immediately adjacent to Andrews' room. On March 7, 2016, the jury awarded Andrews $28 million against the person who recorded her, and $26 million against the hotel. (2)

    The Bollea and Andrews situations have many similarities: both involve a famous person recorded naked in a private bedroom without his or her knowledge or consent, where the footage was posted to the Internet and millions of people watched it there. The same defenses claimed by Gawker in the Bollea v. Gawker Media case potentially could be raised by the person who filmed Andrews and posted the footage to the Internet--or any so-called "news" outlets that might choose to publish the most explicit, uncensored "excerpts" of the footage showing Andrews fully naked in her hotel room--in the name of "news reporting."

    The Bollea and Andrews situations are not uncommon. In this era of smart phones that also make high definition video recordings and have 24/7 Internet access allowing such recordings to be posted to the Internet with one "click," all persons in modern society are at risk of their private moments being secretly recorded and posted for millions of people to watch--in the name of "the news" or otherwise. These situations are becoming increasingly common, for both celebrities and non-celebrities alike. Celebrities like Eric Dane, Rebecca Gayheart, Fred Durst, Brett Favre and Seth Rollins, among others, have been the victims of Gawker Media's posting of nude images of them without permission. (3) Gawker Media also has posted nudity and sexual activity of hundreds of non-celebrities. As one example, a young woman who was very intoxicated and recorded without her consent having sex on the bathroom floor of an Indiana sports bar begged Gawker Media for the footage to be removed. Gawker's executives responded to her with callous disregard, claiming they were "reporting the news," and those emails were presented during the Bollea v. Gawker Media trial as an example of Gawker's "news reporting" activities.

    The point being: the legal authorities discussed herein have broad implications on modern society, including all individuals, and all media companies that post private recordings of people without their consent.

  4. AUTHORITIES SUPPORTING THE RIGHT OF PRIVACY

    The law of privacy has been discussed and implemented over the course of centuries. The Founding Fathers did not draft a Constitutional provision to ensure privacy generally, but did include Constitutional provisions ensuring privacy in certain respects, including prohibiting unreasonable search and seizure (the Fourth Amendment to the U.S. Constitution: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."), and prohibiting the quartering of troops in private homes in times of peace (the Third Amendment). (4)

    In 1890, law partners Samuel D. Warren and Louis D. Brandeis (who later became a Justice of the U.S. Supreme Court) wrote a landmark law review article entitled The Right to Privacy, published in the Harvard Law Review. (5) Their words are as applicable today as they were in 1890:

    Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right "to be let alone." Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops." For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons; and the evil of invasion of privacy by the newspapers, long keenly felt.... The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers.... The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.... It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is.... The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired...

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