In a previous post on Bollea v. Gawker, I predicted that the Florida appellate court would likely invalidate Hulk Hogan’s stunning $140 million judgment against Gawker Media.  After much reflection, I believe that the Florida appellate court should overturn this judgment.

There are many reasons why Hogan deserves to be compensated after Gawker released, without Hogan’s consent, excerpts of a tape depicting Hogan engaging in sexual activity.  There are just as many reasons why Gawker, who did not illegally obtain the sex tape, deserves to publish the tape without repercussions.  Ultimately, a six-member jury should not decide where to set this balance between privacy interests and free speech rights.  America’s commitment to free speech exceptionalism means appellate courts must prioritize free speech above privacy rights in this case.  The Florida court of appeals (and ultimately the Supreme Court) should hold that when a celebrity has inserted his private life into the public discourse, excerpted video evidence of that private life, submitted along with commentary, is newsworthy as a matter of First Amendment law.

To fairly conclude that Gawker should win, it is critical to appreciate the full scope of the interests at issue.  Although I am generally a proponent of expansive First Amendment rights, I am sympathetic to Hulk Hogan’s position, as a matter of both First Amendment doctrine and policy.  Gawker posted video evidence of Hogan’s sex life without his permission.  If individuals do not have privacy in our most intimate moments, then as a society, we are at risk of becoming both coarsened to the sanctity of these moments and fearful of having them.  Bartnicki v. Vopper safeguards a First Amendment right to publish information illegally obtained by others only if the speech is newsworthy.  Hogan can argue that while commentary on the tape may be newsworthy, the actual tape itself is not sufficiently newsworthy to merit First Amendment protection as a matter of law.  This approach would allow a jury to instead decide whether the tape itself is newsworthy, given the important privacy interests and the minimal speech interests at issue.

The Florida trial court followed this approach, which is sensible in many respects, but which fundamentally changes our First Amendment calculus.  America’s commitment to free speech exceptionalism means that the speech interests here must remain more important than the privacy interests as a matter of law.  There should not be a trial or the possibility of liability for Gawker’s actions.  The public has a right to see video evidence that could confirm or deny the claims Hulk Hogan has made about his private life.

Hogan himself has made his sex life newsworthy on his reality television show and has been compensated for doing so.  As a result, we as a society can discuss his character, the sociological and cultural implications of his sexual activity, and what it means about us (on a meta level) that anyone cares about his sex life at all.  When it comes to public figures, the media should police what is newsworthy, not a six-member jury.  Gawker published only a short excerpt of the sex tape, not the entire thing, along with commentary about it.  The tape itself communicates more and communicates differently than the commentary can, and so the tape itself is newsworthy.  If our First Amendment rights are going to be abridged based on a distinction between discussion about a sex tape and publication of the tape itself (a distinction other courts have made), this is not the case to represent that distinction.

This case, involving a public figure and a media defendant, is not the case where appellate courts should redefine America’s free speech exceptionalism.  Ever since New York Times v. Sullivan, which applied First Amendment protections to tort law claims, America has a unique legacy of promoting speech above privacy interests, especially when the speech involves public figures or matters of public concern.  Other countries, who value dignitary and reputational interests more, do not prioritize speech in this way.  Some argue Europe’s tradition of protecting privacy over speech stems from its aristocratic history; privacy rights ultimately shield the upper classes from prying eyes.  America’s history and break from Europe’s traditions was founded on a greater distrust of governmental power.  The First Amendment protects speakers against government censorship (in this case, juries empowered to act as the government).  Allowing free speech to supersede privacy is ultimately a constitutional (and policy) choice to protect individuals against the government more than we protect individuals from the intrusion of other individuals.

Not all Americans agree with the balance our First Amendment jurisprudence has struck between free speech and other interests, such as privacy, dignity, or emotional tranquility.  But that is why free speech possesses a constitutional dimension; the First Amendment shields our speech from the subjective tastes of the democracy.  In my next post in this series, I will address the First Amendment and the countermajoritarian difficulty of immunizing speech most Americans find unworthy when in tension with other interests.   For now, suffice it to say that awarding Hulk Hogan $140 million dollars based on the outrage of a Florida jury undermines one of America’s greatest and most unique achievements – our protection of speech, even distasteful, dishonorable speech, for its own sake.  America, it is fair to argue, has an embarrassing history of racial discrimination, war mongering, and inarticulate leaders.  We should not be embarrassed by our exceptional and perhaps unreasonable commitment to free speech, which I believe ultimately exposes and improves our disastrous behavior (although, here’s a counterpoint to that – in the name of free speech).

Other countries can experiment with different balances between speech and privacy, but our culture has benefited from and grown around our First Amendment exceptionalism.  This case, a case involving the media, an American icon (who petitioned the court to wear a bandanna in the courtroom, exercising his own expressive rights), and only nine seconds of sexual activity exposed on tape, is not the place to re-examine our values.

Hulk Hogan is apparently not concerned that the verdict in Bollea v. Gawker will be overturned, stating in an interview that “I made my point.”  Now it’s up to appellate courts (and possibly the Supreme Court) to undo that point.

[Update:  Gawker and Hogan settled for $31 million dollars, and a take-down of several articles, so there will not be an appeal]