The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press

Excerpted from The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press by Amy Gadja (footnotes omitted) Copyright © 2015 by the President and Fellows of Harvard College. Used by permission. All rights reserved. No part of this excerpt may be reprinted, reproduced, posted on another website or distributed by any means without the written permission of the publisher.

Hulk Hogan, born Terry Bollea, is a professional wrestler. His bigger-than-life personality, halo of long white hair, and career that includes professional wrestling and reality television—both of which can be as far from real as can be—have made him an American icon.

They have also made him a media magnet.

In fall of 2012, Gawker, a website that boasts that its gossip today will make mainstream news headlines tomorrow, posted parts of a hidden camera video with audio of Hulk Hogan fully nude and engaging in sexual activity with a woman on a bed in somebody else’s house. Approximately thirty seconds of the tape featured explicit sex. Gawker headlined the story “Even for a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed Is Not Safe For Work, but Watch it Anyway.” At last count, more than four million people had, making the story the third most clicked on Gawker that year.

Then a judge ordered that the tape be taken down on privacy grounds.

Gawker grudgingly removed the tape, but left up its writer’s full description, suggesting that both the video and its accompanying play-by-play essay were newsworthy and, therefore, constitutionally protected. “[T]he Constitution does unambiguously accord us the right to publish true things about public figures,” a Gawker writer wrote, “[a]nd [the judge’s] order requiring us to take down not only a very brief, highly edited video excerpt from a 30-minute Hulk Hogan [expletive] session but also a lengthy written account from someone who had watched the entirety of that [expletive] session, is risible and contemptuous of centuries of First Amendment jurisprudence.”

Whether Gawker is correct regarding the First Amendment and, if not, where the law should draw the line between free disclosure and legally punishable invasions is part of the larger question that this book explores. What legal and ethical restrictions exist, and should exist, regarding the publication of truthful news and information in today’s privacy-interested yet over-exposure society?

Gawker’s interpretation of its First Amendment protection is not that ludicrous. Previously, law and social understandings had been premised on a certain bargain: Journalists were accorded broad latitude to decide for themselves what was sufficiently newsworthy and to publish accordingly. Individuals, in turn, were entitled to keep their private affairs to themselves and to guard against unwarranted intrusions unless they actively sought publicity or somehow became entangled in a newsworthy event.

This bargain rested on the assumptions that journalists could be trusted to regulate themselves through professional norms and standards, and that ordinary individuals would naturally take care to preserve their own privacy. On these assumptions, courts felt secure in construing the First Amendment broadly to favor truthful public disclosure by the press and to quash the temptation to second-guess the editorial judgment of journalists. The highly influential Restatement of Torts, capturing the prevailing sentiment under both common and constitutional law, helpfully defined news as any information “of more or less deplorable popular appeal” and stopped short only at the point of “morbid and sensational prying for its own sake.” With such a capacious definition, courts understandably rarely found a violation.

In recent years, however, there has been an erosion of both fundamental assumptions underlying this balance between press rights and personal rights. Journalism as a whole has become less reliably professional as its ranks have expanded to include push-the-envelope websites like Gawker and other new media—and even traditional media outlets have buckled ethically in response to intense competition. Evolving public tastes and market pressures have led to a melding of news and entertainment, reshaping programming decisions in ways that discourage self-restraint and encourage use of unfiltered, audience-generated content. Citing constitutional freedoms, reporters have welcomed or begrudgingly accepted free-wheeling websites and untrained bloggers within their protective First Amendment shield. At the same time, the sense of decorum or fear of social sanctions that once inhibited individuals from sharing intimate details of their private lives is giving ground to a stream of confessional internet posts and reality television shows. Rapid technological advances, meantime, are accelerating both of these trends, making possible unprecedented new harmful intrusions and enabling their world-wide dissemination in an instant.

The result is that courts and other legal actors are beginning to rethink the balance between privacy rights and public interests in free disclosure. The deference that once shielded journalists from editorial control by the government is eroding as courts are showing a new willingness to limit public disclosure of truthful information. Increasingly, personal privacy seems deeply vulnerable and deserving of new, more potent protections, just as the expansive new practices and identity of media are stretching the credibility of journalism’s claim to occupy a distinctive and privileged place in democratic life. The combined effect creates a sort of First Amendment bubble, in which constitutional protection for press and news media continually expands to the breaking point, jeopardizing future protection not only at the margins but also for the core.

This much is clear: the New York Times, in contrast, did not publish the Hulk Hogan sex tape on its website. Lending significant credibility to Gawker’s motto about it sourcing mainstream news, however, the venerable newspaper published a graphic containing risqué celebrity tweets about it above a single short paragraph suggesting that the tape was “horrible” to watch but “delightful to discuss.” The fact that it did not publish or link to the tape was to be expected; today’s mainstream media maintain privacy-based ethics provisions that would caution against such publication, even if a single journalist’s internal ethics code would push for it, and even if its attorneys would approve such coverage. The fact that the Times published others’ humorous tweets, however (including one that suggested that Hogan had already gone “one-on-one” with someone who was “faking it,” another about him “finishing” without using wrestling moves, and a third commenting on Hogan’s “performance”), reflects the pressure that mainstream publications feel in covering sensational stories published by other, less ethically bound publications. Today, even the loftiest of reads must fight for the four-million Gawker readers, and others who know of the Hulk Hogan sex tape, and wonder why mainstream publications have not reported on it in a significant way.

The law, meantime, is playing catch-up. It grew responsively in a decades-old world where journalism was credited with pushing democracy forward and where Supreme Court Justices wrote in their powerful opinions that law that was too restrictive would chill journalists who needed significant breathing space to report robustly. Given that sort of legal and journalistic history, it is not surprising that the law today remains deferential. But the jurists who wrote and followed those words in their opinions had not faced a First Amendment-based argument that an explicit sex tape was in the public interest for its news value and therefore should be allowed to remain on a gossip website, no matter its celebrity star’s apparent embarrassment and his wishes that it be taken down. Courts in such situations, then, are left with flowery pro-press language but a decreasing sense that such press deserves support. The Hulk Hogan case is not the Pentagon Papers case, one that involved the publication of information about war, after all; it involves an act so intimate that even the media-protective Restatement suggests that celebrities should be able to keep their sex lives private.

Abner Mikva, a retired judge who once sat on the federal appeals court for the District of Columbia, predicted that this would be our future, and that there would come an anti-media shift in the courts. He warned in a 1995 law review article that changes were afoot in First Amendment doctrine because of what judges perceived as an “irresponsible” press:

I think that I can say that a feeling is abroad among some judges that the Supreme Court has gone too far in protecting the media from defamation actions resulting from instances of irresponsible journalism. That sounds like a scary message for me to deliver… I have been a judge for fifteen years, and now that I have taken off my robes, one of the first things I must say is: “Watch out! There’s a backlash coming in First Amendment doctrine.”

That backlash and the resulting impact may well be here—and the Hulk Hogan case itself offers a circuitous example.

A New Newsworthiness

The Florida state court judge’s order to Gawker to take down the Hulk Hogan sex tape was not the first or last legal proceeding arising from the publication of the video. Hulk Hogan had initially brought his claim to federal court, arguing that the court should suppress publication of the tape on invasion-of-privacy grounds. Gawker argued in response that it should be allowed to leave the tape up because, among other things, it showed a television star engaging in sexual activity in a very human way, a contribution to public understanding that Gawker considered newsworthy.

Perhaps not as shockingly as it might otherwise be, given strong First Amendment protection for journalism, the federal district court judge sided with Gawker. The judge explained that he was hesitant to do anything that might violate constitutionally protected expression and refused to grant what he considered an unconstitutional prior restraint. The court’s analysis offered a window into the power of the press and the related danger of seeking celebrity today. It found that the sex videotape itself was newsworthy, in part, based upon Hogan’s work as a reality television star:

Plaintiff’s public persona, including the publicity he and his family derived from a television reality show detailing their personal life, his own book describing an affair he had during his marriage, prior reports by other parties of the existence and content of the Video, and Plaintiff’s own public discussion of issues relating to his marriage, sex life, and the Video all demonstrate that the Video is a subject of general interest and concern to the community.

The court explained that strong legal precedent led it to defer to Gawker’s editorial discretion in posting the explicit tape, quoting an earlier deferential court in a very different case that had held that “the judgment of what is newsworthy is primarily a function of the publisher, not the courts.” Any other outcome, the Florida federal court implied in line with that earlier case, would cause Gawker to suffer a loss of First Amendment press freedom that, based on years of precedent, rightly trumps such an individual’s privacy concerns. The decision to post the Hulk Hogan sex tape, it found, was “appropriately left to [Gawker’s own] editorial discretion” and, in keeping with older legal precedent, the court refused to sit as a sort of superior editor and order that it be taken down.

That decision, if not completely surprising given strong legal precedent, was notable. It marked the first time that a court had decided that a plaintiff who would normally be protectively cloaked heavily in privacy—a man explicitly pictured nude and engaged in sexual activity in a video taken surreptitiously in a private bedroom—must defer to a proudly push-the-envelope news website that had decided that such information was appropriate for excerpted but otherwise unedited public viewing.

The decision also shows the lasting legacy of First Amendment jurisprudence built when the New York Times and news organizations of its kind were the defendants who stood before the courts. To defer to a respected and generally respectful publication and its well-trained journalists took little effort when a story had real news value; protective language remains from the Pentagon Papers case, for example, when the New York Times successfully argued that it had the First Amendment right to publish a trove of documents on the conduct of a controversial war. In fact, when Hogan brought a second, copyright-based claim in federal court against Gawker, the court similarly rejected it, noting that even though the sex tape depicted “explicit sexual activity” and nudity against his wishes, “[t]he Supreme Court has repeatedly recognized that even minimal interference with the First Amendment freedom of the press causes an irreparable injury.” The court then cited as support for that principle two cases that involved unconstitutional prior restraints on crime-related news, traditionally among the most newsworthy of stories.

Some evidence in the Hogan case of the backlash of which Judge Mikva warned came when Hogan brought his privacy claims to a Florida state trial-level court. There, in contrast, the judge granted Hogan’s request for a preliminary injunction and ordered Gawker to take the tape down. Gawker’s attorney is quoted in the court hearing’s transcript—published as part of a Gawker webpage titled “A Judge Told Us to Take Down Our Hulk Hogan Sex Tape Post. We Won’t”—as arguing that the judge was “not permitted to make an editorial judgment” about what news is publishable and what is not. But the court rejected that longstanding First Amendment argument and sided with what it said was the “public interest” in protecting the plaintiff’s “private sexual encounter.”

In doing so, of course, the court flatly rejected in spirit if not in language the federal district court’s constitutional worries and that court’s reliance on past Supreme Court precedent, lifting an individual’s privacy, at least for the moment, above Gawker’s strident and traditionally powerful First Amendment press freedom arguments.

This may have been a very good thing for individual privacy, but it was also a very, very bad thing for the press. After all, a decision admonishing Gawker and granting an extraordinarily rare preliminary injunction to a plaintiff on privacy grounds could well have had far-reaching effects for all media, even in cases involving different and perhaps far less heinous facts.

In early 2014, privacy, in turn, suffered a loss. A Florida state appeals court reversed the trial court’s decision and, in doing so, supported in part Gawker’s claim that it could publish whatever truthful thing it wished regarding celebrities. The court wrote that such “arguably inappropriate and otherwise sexually explicit content” could well be of legitimate public interest because it addressed “matters of public concern”—and that Gawker enjoyed the “editorial discretion” to publish the explicit tape. This court too blamed Hulk Hogan in large part for making his sex life of public interest, pointing to media appearances and—in a surprisingly broad critique that affects expression of a different sort—his autobiography in which he had written about an affair in a repentant and decidedly innocuous way.

Should that reasoning stand as the case continues, it could well be that any public figure’s private life in its most explicit sense will be fair game should the celebrity be seen as courting media interest or discussing personal relationships. The privacy implications for many are enormous.

No matter the outcome, the Hulk Hogan case exemplifies the clash between a bolder media and the privacy it can decimate. Consider this: Gawker’s founder and owner, Nick Denton, boasted in 2014 that his website routinely published private information that an ethics-abiding newspaper would not and suggested that the crowd-sourced ratting out of anyone and the “spilling of secrets” including sex pictures would be healthy for most people. Just a few months earlier, in contrast, U.S. Supreme Court Justice Sonia Sotomayor had written in her autobiography that with her ascent to the nation’s highest court had come the “notorious,” “profoundly disconcerting” and “overwhelming” experience of being suddenly propelled into the public eye, a life that brought with it what she called “psychological hazards.”

The one behind the computer keyboard with the power of the press, therefore, buoyantly works toward an end to privacy while the one behind the bench with the power to interpret that freedom considers privacy necessary for personal well-being.

It seems clear which power will ultimately triumph.

“There is still a tendency among members of the media to view the courts in somewhat romantic terms,” constitutional law scholar David Pozen said in 2014, nearly twenty years after Judge Mikva’s warning and within a few months of Gawker’s claim that it had the right to publish whatever truthful information it wanted. “I’m not confident that remains a descriptively accurate view of the courts.”