If Gawker’s publication of a Hulk Hogan sex tape raised legal questions, it also raised ones about public opinion, social mores, and the fate of civilization. Why else would the two opposing sides, in the wake of a jury awarding Hogan $140 million, go on The View?
Accounts of the trial have created the beyond-farcical impression of a Florida jury being paraded with two extreme examples of elites behaving indecently. In one corner: macho celebrity culture, where a shock-jock secretly films what ensues when he opens his marriage to a national icon who’s gone around boasting about a fictional 10-inch penis. In the other: the high cynicism of New York media, epitomized by the editor A.J. Daulerio sarcastically quipping under oath that he’d be okay with publishing child pornography. In the days since the verdict, the litigants have taken to the public arena, allowing the rest of America to see why six Floridians sided with the wrestler over the website.
Hogan’s interviews on Good Morning America, The View, and elsewhere have emphasized the human, Terry Bollea, beneath the bandana. He burst into tears upon hearing the verdict; he had painful discussions with his children when the sex tape went public; he became absolutely terrified of Gawker founder Nick Denton during the trial: “Denton and I had a stare-down. He scared me staring at me, man.”
What about the vicious racial slurs Bollea was heard using on another tape that became public last year? “I said something horrible and I will live with it forever, but that’s not me, that’s not who I am,” he told the women of The View, pointing out that he attends an “Afro-American church.” But he said the case was not about those tapes, or even about money. It was about setting standards of privacy in the era of sexting and revenge porn. It was about precedent—about not allowing Gawker to do to you what they did to him.
The routine is pretty convincing, a fact that could be credited, as Daulerio argued to The Daily Beast, to Hogan being a professional actor. (“Not that Hulk Hogan is going to win an Academy Award anytime soon,” Daulerio added.) Or maybe it’s just attributable to the very hard-to-dispute idea that no one should have their private sexual acts broadcast to millions if they don’t want them to be.
This morning, Denton appeared on The View, a day after Bollea did the same. Wearing a beige zip-up cardigan over a shirt and tie, it seemed at first like the gossip kingpin might try and channel Mr. Rogers. But there wasn’t much rhetorical softening. He mostly restated Gawker’s line that footage of Bollea having a consensual sexual encounter in private was newsworthy because the wrestler had bragged about his sex life in public.
The argument baffled The View's panel. Whoopi Goldberg was most pointed, saying that while it would have been one thing to write about Bollea stepping out on his wife with a friend’s wife, posting video of it crossed a line. “There is no way you can justify the tape,” she said. “Even if it’s 10 seconds, once you did that [publish the video], you took yourselves out of from being news folks into being prurient—what is it called?”
“Tabloid?” “Sleazoid?” other panelists offered.
“No, no, not tabloid. It’s—voyeurs! Voyeurs.”
Whether on GMA or The View or CNBC, the fundamental, gut-level question of what notion of public good might transform stolen pornographic footage into protected free speech remains. High-profile celebrity sex tapes in the past incurred great expense from the outlets that published them, usually in the form of settlements. If there’s a principled case to be made, it’s been best articulated in public by The New Yorker’s general counsel Fabio Bertoni:
… on the Internet, at least, video is becoming the community standard of proof … We have seen many videos that are more newsworthy than this one, and it’s even possible to imagine a more newsworthy sex tape. The reported sex tape of John Edwards and Rielle Hunter could have been considered newsworthy, had it been released, and had the former presidential candidate denied the affair. If the Hogan verdict stands, would a media outlet that published that video be at risk of being put out of business?
Though Hogan is not a presidential candidate, Bertoni’s point is that there’s a chilling effect when courts get to decide newsworthiness. Free-speech scholars quoted in The New York Times don’t sound particularly perturbed by the verdict, though. “I think this case establishes a very limited proposition: It is an invasion of privacy to make publicly available a tape of a person having sex without that person’s consent,” said Erwin Chemerinsky, the law dean at the University of California, Irvine. “I don’t think it goes any further than that and I do not see a First Amendment basis for claiming that there is a right to do this.”
Denton has pointed out that federal judges have sided with Gawker on this issue before and says that the jury acted on an emotional basis, setting damages well beyond what the average wrongful-death award in America is. He says he’s confident that Gawker will win on appeal, when the choice is again up to a judge rather than a jury. After watching the past few days of publicity, you can understand what he means. The Florida jury even sat for a group interview on GMA, where they aired disgust at Denton’s lack of remorse. “It’s just amazing to listen to them,” one of the jurors said. “They have no heart, no soul.”