The prospect that the bastards will get to walk is what makes the potential loss of Gawker, or at least the hard-charging ethos that it stands for when it assumes the role of the Gawker that it thinks it is at its best, is something that those of us who care about the freedom of the press should be most worried about here. If this decision makes an editor think twice about posting the private sex tape of a celebrity, that may be a positive outcome, but if he or she now thinks twice about reporting on the unethical behavior of a public figure in general, then we’re no longer talking about journalism anymore, we’re talking about a vast landscape of public relations and promotional entertainment.
Whether we (or the members of a Florida jury) think that a clip from an aging wrestler’s sex tape is something worth watching isn’t the point in the Hogan case. The real point is whether Gawker’s First Amendment right to publish newsworthy content outweighs whatever personal right to privacy the wrestler has. And there seems to be little doubt that it does. A jury may have been swayed by their feelings for Hogan, but an appeals court is unlikely to make that mistake.
A review of Campbell’s cases shows that since 2012, the appellate court has reversed her decisions 22 times, all for errors the court blamed on the judge.
Among her colleagues on the circuit bench, she leads by a large margin. The next highest is 15 reversals during the same time period. Among Pinellas circuit judges who have had decisions overturned during this time, the average is less than four reversals. Most judges have been overturned three times or fewer.
Hulk Hogan triumphed over Gawker Media in a Florida courtroom last week.
But was it a fair fight? Gawker doesn’t think so because the jurors who awarded Hogan $115 million in damages didn’t have an opportunity to review nearly a thousand pages of documents that had been previously sealed.
Those records were released to the public on Friday night hours before the six-person jury returned its verdict. They raise serious questions about statements Hogan and other key witnesses made throughout the case, and are key to the appeal Gawker says it will file.
They also question Hogan’s motive for filing the lawsuit.
Court records unsealed Friday in former wrestler Hulk Hogan’s lawsuit against Gawker contradict his sworn deposition in the case and that of several other key witnesses.
The documents, which were made available to the public following an order from a Florida appellate court, describe statements that Hogan, Bubba the Love Sponge Clem and Clem’s ex-wife Heather Cole made to the FBI under oath. In several instances, their comments are starkly different from what they later told Gawker’s attorneys in sworn depositions.
Did Gawker have to show the video, though? Hogan’s lawyers suggested that a written description would have been sufficient and protected. Other outlets, which also received the tape but declined to publish it, apparently agreed with them. But there are a couple of concerns with this argument. First, judicial edicts regarding whether video is appropriate in a particular case may encroach on editorial judgment. (Would eight seconds have been O.K.? What about three? What if they were blurred, but you could still tell what was going on?) Second, on the Internet, at least, video is becoming the community standard of proof. The power of video to capture attention and motivate people, as with the recent videos of police shootings of unarmed citizens, or violence at Donald Trump rallies, or domestic violence in hotel elevators (as Nicholas Schmidle reported in this magazine), is beyond dispute.
This kind of tough case, in which an editor who resembles Ted Bundy in affect and empathy published a story designed to attract clicks through humiliating an aging C-lister, is exactly when we ought to be most protective of a site’s right to be obnoxious. At the end of the day, Americans should be much more afraid of a world in which the government, or a favorable local jury using the enforcement powers of the government, decides what’s worthy of coverage than one in which Gawker decides.
Having rules is one thing; enforcing them is another. Large platforms usually rely on a combination of employee oversight and user reporting to identify content that violates policy. Rules are enforced primarily through after-the-fact removal, not upfront moderation. Imgur, despite a ban, still hosts a large repository of sexual material.
For media organizations, that means some of the most difficult decisions are limited to deciding if, and how, to acknowledge information that seems to publish itself.
“Gawker is not afraid of saying something that’s true, where the so-called respectable media would consider it too nasty,” Scocca explained, citing his February 2014 essay on Bill Cosby’s hidden record of sexual predation.
At the time, two years ago, the comedian and sitcom star was still a beloved pop-culture icon, and Scocca’s piece—which inspired standup comic Hannibal Buress to mention Cosby’s predatory behavior in his act, which ultimately led to Cosby’s downfall—was the very first crack in the showbiz legend’s wholesome façade.
“At some point,” Scocca said, “somebody started comparing Gawker to the Jack Nicholson character in A Few Good Men, screaming, ‘You need me on that wall!’”
Celebrities, especially ones as public about their personal and sex life as Hulk Hogan, have a narrower zone of privacy than ordinary people. Regardless of questions about Gawker’s editorial standards and methods, self-promoters should not be allowed to seek attention around a specific topic and then claim privacy when the narrative takes an unwelcome turn. The benefits of publicity come at a price; and for someone like Hogan, whose whole life is a performance, it’s a full-time and long-term commitment.
It was one of the few honest things I think that have been said or been written about Hulk Hogan. He’s such a character. He’s been living in character almost all his professional life. And in a way, he’s a sign of the society that we’re moving into this which people are not simply actors, but their whole lives are performances. Hulk Hogan is very charming on the stand. But he’s been shown to have lied on the stand. As much as he’s a charming liar, we were a bunch of honest jerks.
Mark Coles profiles the man friends describe as being “ahead of his time” and a “visionary”. But Mark also discovers how, as a journalist, Nick Denton reveals other people’s secrets, while carefully guarding his own.