"Four."
March 9, 2016 6:40 PM Subscribe
“Can you imagine a situation where a celebrity sex tape would not be newsworthy?” asked the lawyer, Douglas E. Mirell.
“If they were a child,” Mr. Daulerio replied.
“Under what age?” the lawyer pressed.
Gawker founder Nick Denton and former editor Albert J. Daulerio take the stand.
“If they were a child,” Mr. Daulerio replied.
“Under what age?” the lawyer pressed.
Gawker founder Nick Denton and former editor Albert J. Daulerio take the stand.
The lawyer, David Houston's hairstyle is blowing my mind.
posted by bonobothegreat at 6:45 PM on March 9, 2016 [5 favorites]
posted by bonobothegreat at 6:45 PM on March 9, 2016 [5 favorites]
Congratulations, Nick Denton, you've managed to be more repulsive than Ted Cruz.
posted by Dr. Zira at 6:46 PM on March 9, 2016 [4 favorites]
posted by Dr. Zira at 6:46 PM on March 9, 2016 [4 favorites]
So Hulk Hogan's lawyer is essentially arguing that his client should be given the same treatment as a 4-year-old child. Which actually does make sense.
posted by oneswellfoop at 6:51 PM on March 9, 2016 [2 favorites]
posted by oneswellfoop at 6:51 PM on March 9, 2016 [2 favorites]
That hairdo looks like retirement Bieber.
posted by futz at 6:52 PM on March 9, 2016 [8 favorites]
posted by futz at 6:52 PM on March 9, 2016 [8 favorites]
Hogan's lawyer will someday be a real boy!
(that is, he looks like a puppet)
posted by Docrailgun at 7:09 PM on March 9, 2016 [2 favorites]
(that is, he looks like a puppet)
posted by Docrailgun at 7:09 PM on March 9, 2016 [2 favorites]
Pretty sure I long ago resolved never to be on the same side of an issue as Hulk Hogan, but I guess I'll have to break my vow. I hope he gets several million dollars contingent on the requirement that none of us ever have to hear his name again.
posted by savetheclocktower at 7:13 PM on March 9, 2016 [8 favorites]
posted by savetheclocktower at 7:13 PM on March 9, 2016 [8 favorites]
i'm gonna go out on a limb here and say that maybe testimony under penalty of perjury is not the _best_ place for sarcasm
posted by likeatoaster at 7:18 PM on March 9, 2016 [75 favorites]
posted by likeatoaster at 7:18 PM on March 9, 2016 [75 favorites]
Here's a life-lesson for Mr. Daulerio on why one should never, ever be flip in a court room.
posted by bonehead at 7:19 PM on March 9, 2016 [9 favorites]
posted by bonehead at 7:19 PM on March 9, 2016 [9 favorites]
Yeah, I am not a lawyer, but I can't help but think "sarcasm" and "testimony under oath" are concepts that shouldn't really go together. I can't imagine juries are very fond of defendants that make flippant remarks on the stand, either.
posted by Mr.Encyclopedia at 7:29 PM on March 9, 2016 [7 favorites]
posted by Mr.Encyclopedia at 7:29 PM on March 9, 2016 [7 favorites]
I only wish this trial could end with a judicial order to dismantle Gawker altogether, send every one of the employees home, dismantle the office brick by brick and then salt the earth on which it stood so nothing could grow there again.
Oh. And yeah, I'd like to see them have to fork over that whole $100 million, too. Don't care if much of it goes into Hogan's pocket, so long as Gawker pays for their awful behavior until they're left crying.
posted by scaryblackdeath at 7:34 PM on March 9, 2016 [14 favorites]
Oh. And yeah, I'd like to see them have to fork over that whole $100 million, too. Don't care if much of it goes into Hogan's pocket, so long as Gawker pays for their awful behavior until they're left crying.
posted by scaryblackdeath at 7:34 PM on March 9, 2016 [14 favorites]
I think a defendant should be allowed to opt for a trial with sarcasm, in which case the jury can fine them ten skerbillion dollars for "impudent ears". If their attorney objects, the judge may issue a ruling of "Yeah, right".
posted by benito.strauss at 7:34 PM on March 9, 2016 [36 favorites]
posted by benito.strauss at 7:34 PM on March 9, 2016 [36 favorites]
Could Daulerio be trying to lose the case? He doesn't work at Gawker anymore, maybe his exit was rough?
posted by hermanubis at 7:41 PM on March 9, 2016 [1 favorite]
posted by hermanubis at 7:41 PM on March 9, 2016 [1 favorite]
Yeah I wonder if Daulerio was fired from Gawker and sabotaged them in court
I hate Gawker, especially lately since it turned its focus to politics and the election, but I'm not sure that they should be held liable here just for posting a sex tape of a celebrity whose privacy they did not themselves violate
posted by knoyers at 7:43 PM on March 9, 2016 [2 favorites]
I hate Gawker, especially lately since it turned its focus to politics and the election, but I'm not sure that they should be held liable here just for posting a sex tape of a celebrity whose privacy they did not themselves violate
posted by knoyers at 7:43 PM on March 9, 2016 [2 favorites]
I was doing my best to ignore all the feces-flinging around this whole thing because frankly I find everybody involved just a little repellent, but I accidentally caught a short discussion on the CBC today about it. Gawker claims Hulk Hogan is a public figure and therefore a sex tape is newsworthy (shudder). The defense's response to that is something like: alright, Hulk Hogan might be a public figure... but Terry Bollea isn't, and this surreptitious sex tape was of Terry Bollea. And well, they kinda have a point there don't they, and I felt a little twinge of sympathy for the guy.
posted by Mary Ellen Carter at 7:49 PM on March 9, 2016 [18 favorites]
posted by Mary Ellen Carter at 7:49 PM on March 9, 2016 [18 favorites]
Nick Denton and Gawker have done a lot of awful things, but humiliating Hulk Hogan I consider a public service. And they are still closer to 'journalism' than any of Rupert Murdoch's properties, so I'd MUCH rather see the earth below FauxNews salted. At least as long as they continue to host the Friday GIF Party, which may be the only non-MetaFilter comment thread I EVER read.
And the lawyer's hair has so much of a 'Trumpian' look that (a) it may be a wig stolen from The Donald's dressing room back when he did his schtick on Wrestlemania or (b) the lawyer may be trying to appeal to really stupid jurors.
alright, Hulk Hogan might be a public figure... but Terry Bollea isn't,
...a precedent that will allow every public performer who has worked under another name to sue The Media into bankruptcy... which may or may not be a bad thing.
posted by oneswellfoop at 7:55 PM on March 9, 2016 [2 favorites]
And the lawyer's hair has so much of a 'Trumpian' look that (a) it may be a wig stolen from The Donald's dressing room back when he did his schtick on Wrestlemania or (b) the lawyer may be trying to appeal to really stupid jurors.
alright, Hulk Hogan might be a public figure... but Terry Bollea isn't,
...a precedent that will allow every public performer who has worked under another name to sue The Media into bankruptcy... which may or may not be a bad thing.
posted by oneswellfoop at 7:55 PM on March 9, 2016 [2 favorites]
I'm not sure that they should be held liable here just for posting a sex tape of a celebrity whose privacy they did not themselves violate
Why not? They have a huge platform, and there's clearly a material difference in degree of damage, if nothing else, between a sex tape being posted on some obscure Wordpress blog nobody's ever heard of and one that's been posted on one of the most visited gossip blogs on the entire internet.
The whole field of journalistic ethics exists precisely to answer questions like "what does it mean to reproduce images that were obtained unethically?" I mean, obviously nobody fucking cares any more, or Gawker would have been burned to the ground ages ago, but I don't think it's self-evident at all that Gawker has no liability for the choices they make about what material to publish or reject.
posted by tobascodagama at 7:57 PM on March 9, 2016 [2 favorites]
Why not? They have a huge platform, and there's clearly a material difference in degree of damage, if nothing else, between a sex tape being posted on some obscure Wordpress blog nobody's ever heard of and one that's been posted on one of the most visited gossip blogs on the entire internet.
The whole field of journalistic ethics exists precisely to answer questions like "what does it mean to reproduce images that were obtained unethically?" I mean, obviously nobody fucking cares any more, or Gawker would have been burned to the ground ages ago, but I don't think it's self-evident at all that Gawker has no liability for the choices they make about what material to publish or reject.
posted by tobascodagama at 7:57 PM on March 9, 2016 [2 favorites]
...a precedent that will allow every public performer who has worked under another name to sue The Media into bankruptcy... which may or may not be a bad thing.
Retirement achievement unlocked!!
posted by Floydd at 8:02 PM on March 9, 2016
Retirement achievement unlocked!!
posted by Floydd at 8:02 PM on March 9, 2016
"Until this moment ... I think I have never really gauged your cruelty or your recklessness. ... If it were in my power to forgive you for your reckless cruelty I would do so. I like to think I am a gentleman, but your forgiveness will have to come from someone other than me. ... May we not drop this? ... You've done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?"
posted by Cool Papa Bell at 8:31 PM on March 9, 2016 [7 favorites]
posted by Cool Papa Bell at 8:31 PM on March 9, 2016 [7 favorites]
At long last, have you left no sense of decency?"
There's a long list of people ahead of Nick Denton I'd use this speech on, but then, did Denton ever CLAIM to have a sense of decency? Then again, if it's Hulk's lawyer, he'd probably need something pre-scripted to use as an 'emotional outburst'.
Related, this must be hard on the Hulkster, going into a conflict without having been told in advance who's going to win.
Gawker never should've touched this when there are so much more appropriate journalistic outlets.
posted by oneswellfoop at 8:51 PM on March 9, 2016 [2 favorites]
There's a long list of people ahead of Nick Denton I'd use this speech on, but then, did Denton ever CLAIM to have a sense of decency? Then again, if it's Hulk's lawyer, he'd probably need something pre-scripted to use as an 'emotional outburst'.
Related, this must be hard on the Hulkster, going into a conflict without having been told in advance who's going to win.
Gawker never should've touched this when there are so much more appropriate journalistic outlets.
posted by oneswellfoop at 8:51 PM on March 9, 2016 [2 favorites]
I always knew the concept of “celebrity” was a weird thing, but I never realized that some people apparently think that it's a magical status that makes footage of you fucking somehow “newsworthy.”
I also didn’t consider the fact that if I were famous and went on Howard Stern’s show, and got asked about my sex life (as every guest of his does), someone would later claim that my answer would justify future publishing of my fucking-footage.
Hulk Hogan is a bad human being to whom I want bad things to happen, but that plan was already unfolding before any of this went down — he was an aging wrestler hurtling toward obscurity. Being friends with someone named Bubba the Love Sponge is its own punishment. Let’s not pray for a bad precedent to be set just because we want him to suffer some more.
posted by savetheclocktower at 8:56 PM on March 9, 2016 [2 favorites]
I also didn’t consider the fact that if I were famous and went on Howard Stern’s show, and got asked about my sex life (as every guest of his does), someone would later claim that my answer would justify future publishing of my fucking-footage.
Hulk Hogan is a bad human being to whom I want bad things to happen, but that plan was already unfolding before any of this went down — he was an aging wrestler hurtling toward obscurity. Being friends with someone named Bubba the Love Sponge is its own punishment. Let’s not pray for a bad precedent to be set just because we want him to suffer some more.
posted by savetheclocktower at 8:56 PM on March 9, 2016 [2 favorites]
...someone would later claim that my answer would justify future publishing of my fucking-footage.
This is no place for measurement puns, Mr. Trump.
posted by rokusan at 9:11 PM on March 9, 2016 [1 favorite]
This is no place for measurement puns, Mr. Trump.
posted by rokusan at 9:11 PM on March 9, 2016 [1 favorite]
Then again, if it's Hulk's lawyer, he'd probably need something pre-scripted to use as an 'emotional outburst'
Yeah, but that's his job, if you think about it.
posted by clockzero at 9:26 PM on March 9, 2016 [1 favorite]
Yeah, but that's his job, if you think about it.
posted by clockzero at 9:26 PM on March 9, 2016 [1 favorite]
According to the article Denton and Dailerio haven't actually taken the stand yet. The Hulkster's lawyers are playing clips from videotaped depositions.
posted by otio at 9:51 PM on March 9, 2016 [1 favorite]
posted by otio at 9:51 PM on March 9, 2016 [1 favorite]
So why shouldn't the deposition tapes be at least as humiliating as the sex tape?
posted by oneswellfoop at 9:54 PM on March 9, 2016
posted by oneswellfoop at 9:54 PM on March 9, 2016
There's no such thing a bad publicity, I hear. So, well done, Hulk Hogan, you indeed hadn't been occupying any of my mindspace for quite a while, and now you once again are. And you didn't even have to pull a Billy Idol and beat someone up to get it. Instead - sweet love. Your jib, sir - I like the cut of it.
posted by labberdasher at 10:32 PM on March 9, 2016
posted by labberdasher at 10:32 PM on March 9, 2016
Let us never forget that, “[I]n 1986, Bollea ratted out his fellow wrestlers to crush a nascent unionization drive ahead of Wrestlemania II.”
posted by ob1quixote at 10:54 PM on March 9, 2016 [6 favorites]
posted by ob1quixote at 10:54 PM on March 9, 2016 [6 favorites]
I don't care who's in it or who is posting it, sharing sex tapes or naked photos or similar of anyone without their permission is wrong and gross and should be illegal. Everyone deserves that protection. If it's somehow newsworthy then cover it without posting the actual thing itself, it's not difficult.
The fact that any of this is still up for discussion is also gross and wrong.
posted by shelleycat at 10:56 PM on March 9, 2016 [63 favorites]
The fact that any of this is still up for discussion is also gross and wrong.
posted by shelleycat at 10:56 PM on March 9, 2016 [63 favorites]
The lawyer, David Houston's hairstyle is blowing my mind.
They pulled him out of the dumpster where they throw the day-old Trumps.
posted by univac at 12:36 AM on March 10, 2016 [5 favorites]
Gawker claims Hulk Hogan is a public figure and therefore a sex tape is newsworthy
I was just looking at an article on the Scottish budget (I know, right) and it turned out to end up at the Daily Mail (thanks, Bitly!) and if you've ever seen the DM you'll know there is a nearly endless strip down the side: it was containing somewhere north of 100 articles, and most were Kardashian-related.
And a goodly portion of that were about how they were dressed for getting coffee, or how undressed they were in the bathroom.
So, it does need seem the sex tape is newsworthy, according to the people who now make "the news" in this wonderful modern century we've created.
Now, you just wait 'till Murdoch/Hall hits. Then you'll see NEWS.
posted by Mezentian at 12:40 AM on March 10, 2016
I was just looking at an article on the Scottish budget (I know, right) and it turned out to end up at the Daily Mail (thanks, Bitly!) and if you've ever seen the DM you'll know there is a nearly endless strip down the side: it was containing somewhere north of 100 articles, and most were Kardashian-related.
And a goodly portion of that were about how they were dressed for getting coffee, or how undressed they were in the bathroom.
So, it does need seem the sex tape is newsworthy, according to the people who now make "the news" in this wonderful modern century we've created.
Now, you just wait 'till Murdoch/Hall hits. Then you'll see NEWS.
posted by Mezentian at 12:40 AM on March 10, 2016
"I always knew the concept of “celebrity” was a weird thing, but I never realized that some people apparently think that it's a magical status that makes footage of you fucking somehow “newsworthy.”"
Part of the problem is that "newsworthy" is an incredibly slippery concept. The idea of celeb sex tapes being newsworthy got litigated as part of the Pam and Tommy tape — the ultimate decision hinged on copyright, but the decision on newsworthiness was that the reporting that there was a tape and describing it was newsworthy, but the footage, no pun intended, was not. Reporters could write about the tape but not show it.
One of the things that this has got me curious about is whether or not there's an opportunity for a civic-minded civil lawyer to go after revenge porn and doxers for privacy and intentional infliction of distress torts. The overall board hosts wouldn't likely be liable, but there's precedent for treating naked pictures as "private facts," and so the individual posters of e.g. 8chan/shamed/ would likely be personally liable. Have to be a lawyer willing to brave a shit tsunami to start that fight though. (If anybody knows of actual cases about this, let me know. I was googling around and couldn't find any coverage of anything directly on point, but I can also imagine that a lot of folks filing complaints about privacy violations wouldn't want a lot of press about it.)
posted by klangklangston at 12:50 AM on March 10, 2016 [1 favorite]
Part of the problem is that "newsworthy" is an incredibly slippery concept. The idea of celeb sex tapes being newsworthy got litigated as part of the Pam and Tommy tape — the ultimate decision hinged on copyright, but the decision on newsworthiness was that the reporting that there was a tape and describing it was newsworthy, but the footage, no pun intended, was not. Reporters could write about the tape but not show it.
One of the things that this has got me curious about is whether or not there's an opportunity for a civic-minded civil lawyer to go after revenge porn and doxers for privacy and intentional infliction of distress torts. The overall board hosts wouldn't likely be liable, but there's precedent for treating naked pictures as "private facts," and so the individual posters of e.g. 8chan/shamed/ would likely be personally liable. Have to be a lawyer willing to brave a shit tsunami to start that fight though. (If anybody knows of actual cases about this, let me know. I was googling around and couldn't find any coverage of anything directly on point, but I can also imagine that a lot of folks filing complaints about privacy violations wouldn't want a lot of press about it.)
posted by klangklangston at 12:50 AM on March 10, 2016 [1 favorite]
Because of all of Gawker's subsidiaries doing different things (I know a writer for one of the more niche ones personally) I always forget why people hate them. Then I remember. Then I tend to forget again. But AJ Delaurio is a shit, I remember that.
posted by atoxyl at 12:51 AM on March 10, 2016 [1 favorite]
posted by atoxyl at 12:51 AM on March 10, 2016 [1 favorite]
This is why I as a journalist hate sleb media.
It's an engine of distress, that justifies any action on 'the victim is famous, therefore has no defence'. This puts the entire spectrum of behaviour, from normal through to eccentric to truly vile into one pot, with the sole qualifier being that it makes the reader feel superior, envious or shocked. I find this grotesque and distasteful - but I can live with being offended, and readers are adults who can decide for themselves. My morals ain't more important than your freedom to read and write what you like.
The consequences, however, are more dangerous. In the UK, strong libel laws have allowed the rich and powerful to silence the press and cover up crimes. But if the press insist on demeaning people with no justification, then the law will have to find ways to protect them - ways that can be abused by bad actors (and not just bad actors who are also bad actors). It's no coincidence that oppressive states use defamation - insulting the president, bringing the nation into disrepute - as catch-all laws to silence dissidents, investigative journalists and anyone they just don't like very much.
It is, of course, possible to make money at publishing under bad laws, so I don't expect these consequences to matter much to people who see jousnalism as a pleasant way to generate power and money for themselves. Making those consequences matter to those people is what will make a difference, and I think that means more, fiercer, better and more attractive journalism that takes its responsibilities seriously and knows how to talk to people.
Or it'll be one hell of a mess.
posted by Devonian at 2:44 AM on March 10, 2016 [7 favorites]
It's an engine of distress, that justifies any action on 'the victim is famous, therefore has no defence'. This puts the entire spectrum of behaviour, from normal through to eccentric to truly vile into one pot, with the sole qualifier being that it makes the reader feel superior, envious or shocked. I find this grotesque and distasteful - but I can live with being offended, and readers are adults who can decide for themselves. My morals ain't more important than your freedom to read and write what you like.
The consequences, however, are more dangerous. In the UK, strong libel laws have allowed the rich and powerful to silence the press and cover up crimes. But if the press insist on demeaning people with no justification, then the law will have to find ways to protect them - ways that can be abused by bad actors (and not just bad actors who are also bad actors). It's no coincidence that oppressive states use defamation - insulting the president, bringing the nation into disrepute - as catch-all laws to silence dissidents, investigative journalists and anyone they just don't like very much.
It is, of course, possible to make money at publishing under bad laws, so I don't expect these consequences to matter much to people who see jousnalism as a pleasant way to generate power and money for themselves. Making those consequences matter to those people is what will make a difference, and I think that means more, fiercer, better and more attractive journalism that takes its responsibilities seriously and knows how to talk to people.
Or it'll be one hell of a mess.
posted by Devonian at 2:44 AM on March 10, 2016 [7 favorites]
Part of the problem is that "newsworthy" is an incredibly slippery concept.
Just when I was about to agree that Hulk, or Terry depending on how he introduces himself in bed, deserves the same level of privacy that an ordinary non-celebrity should expect to, it does appear in fact that yes, his life as he's portrayed it to us over the years is in fact newsworthy. Warts and all.
It just may be not newsworthy to you. Hopefully.
posted by jsavimbi at 4:48 AM on March 10, 2016
Just when I was about to agree that Hulk, or Terry depending on how he introduces himself in bed, deserves the same level of privacy that an ordinary non-celebrity should expect to, it does appear in fact that yes, his life as he's portrayed it to us over the years is in fact newsworthy. Warts and all.
It just may be not newsworthy to you. Hopefully.
posted by jsavimbi at 4:48 AM on March 10, 2016
Are these Gawker people now public figures whose clandestinely-recorded sexual activities could be posted on the Internet? They must be OK with that, I guess.
i'm gonna go out on a limb here and say that maybe testimony under penalty of perjury is not the _best_ place for sarcasm
You're saying that not only is Justice blind, but she can't take a joke?
posted by Kirth Gerson at 4:50 AM on March 10, 2016
i'm gonna go out on a limb here and say that maybe testimony under penalty of perjury is not the _best_ place for sarcasm
You're saying that not only is Justice blind, but she can't take a joke?
posted by Kirth Gerson at 4:50 AM on March 10, 2016
Let us never forget that, “[I]n 1986, Bollea ratted out his fellow wrestlers to crush a nascent unionization drive ahead of Wrestlemania II.”
Yeah, Terry is pretty much a garbage human being with a long reputation in the business for fucking anybody and everybody over for his own benefit. Frankly, Hulk Hogan isn't a peach, either (even in his days as the top babyface, he was overfond of the eye rake, the back rake, and the steel chair).
posted by uncleozzy at 4:50 AM on March 10, 2016 [1 favorite]
Yeah, Terry is pretty much a garbage human being with a long reputation in the business for fucking anybody and everybody over for his own benefit. Frankly, Hulk Hogan isn't a peach, either (even in his days as the top babyface, he was overfond of the eye rake, the back rake, and the steel chair).
posted by uncleozzy at 4:50 AM on March 10, 2016 [1 favorite]
We know from reality television and the news that Hulk Hogan/Terry Bollea has two children in their twenties. So the fact that he has sex is anything but news. So why don't we just come out and say that some people like to see famous people have sex or (if reality television is any indication) do anything that leads them to believe that they are just like the people that they admire?
posted by dances with hamsters at 5:25 AM on March 10, 2016
posted by dances with hamsters at 5:25 AM on March 10, 2016
It seems pretty clear to me that stealing, hosting, or distributing private sexual images without permission of 100% of the people who appear in them should be a crime. Which I believe it already is. I don't know what the current average punishment is, but I would be totally fine with it being so severe as to bankrupt media organizations that break these laws. I also feel that the individual actors within the organization who take part in the stealing/hosting/distributing should be exposed to felony charges.
That said, I also think that when a public person has a sex tape leaked, it is, sadly, newsworthy. I think that we have to accept that our freedom of the press extends to being able to report on the fact that a breach of someone's privacy has occurred and comment on what that means to their life. The Kim Kardashian sex tape is very old news by now, but it would be an unreasonable muzzling to say that news organizations can't talk about it, especially considering how relevant it is to basically everything that came afterwards in her life.
Of course, an unfortunate side effect of granting this freedom to the press is that once people know a sex tape has been leaked, some portion of them will start actively looking for a copy of it. So, while a media outlet may not be technically distributing the tape by commenting on it, they are certainly causing it to be distributed more widely. I don't think there's a good solution to this dilemma.
Finally, there's the question of whether merely linking to a sex tape should be illegal. If we accept that people tracking down the tape is an unfortunate side effect of reporting on it, it stands to reason that media outlets should not be going out of their way to make it easier for that to occur. It's definitely shitty behaviour, but should it be illegal? On the one hand, it certainly feels to me that, due to the way the Internet works, linking to a sex tape is very much akin to distributing it. On the other hand, it also seems that setting this precedent would have a lot of undesirable side effects when it comes to publishing links to non-sex-tape content. It's a hairy question.
That is all moot in this case however, since Gawker was not only linking to the full sex tape, but hosting and displaying a portion of it on their site directly. I hope this case goes against them in the most punishing way it can. And, while I don't wish good things for Hulk Hogan, he is a victim here, so I will resign myself to hoping that he receives fair recompense.
posted by 256 at 5:40 AM on March 10, 2016 [5 favorites]
That said, I also think that when a public person has a sex tape leaked, it is, sadly, newsworthy. I think that we have to accept that our freedom of the press extends to being able to report on the fact that a breach of someone's privacy has occurred and comment on what that means to their life. The Kim Kardashian sex tape is very old news by now, but it would be an unreasonable muzzling to say that news organizations can't talk about it, especially considering how relevant it is to basically everything that came afterwards in her life.
Of course, an unfortunate side effect of granting this freedom to the press is that once people know a sex tape has been leaked, some portion of them will start actively looking for a copy of it. So, while a media outlet may not be technically distributing the tape by commenting on it, they are certainly causing it to be distributed more widely. I don't think there's a good solution to this dilemma.
Finally, there's the question of whether merely linking to a sex tape should be illegal. If we accept that people tracking down the tape is an unfortunate side effect of reporting on it, it stands to reason that media outlets should not be going out of their way to make it easier for that to occur. It's definitely shitty behaviour, but should it be illegal? On the one hand, it certainly feels to me that, due to the way the Internet works, linking to a sex tape is very much akin to distributing it. On the other hand, it also seems that setting this precedent would have a lot of undesirable side effects when it comes to publishing links to non-sex-tape content. It's a hairy question.
That is all moot in this case however, since Gawker was not only linking to the full sex tape, but hosting and displaying a portion of it on their site directly. I hope this case goes against them in the most punishing way it can. And, while I don't wish good things for Hulk Hogan, he is a victim here, so I will resign myself to hoping that he receives fair recompense.
posted by 256 at 5:40 AM on March 10, 2016 [5 favorites]
I don't care who's in it or who is posting it, sharing sex tapes or naked photos or similar of anyone without their permission is wrong and gross and should be illegal.
This is the only correct position. If you're going to add a "well, but, fuck Hulk Hogan" then please just admit you want some kind of petty, vindictive revenge on someone just because — and perhaps eschew future arguments about morals.
posted by Dark Messiah at 6:44 AM on March 10, 2016 [7 favorites]
This is the only correct position. If you're going to add a "well, but, fuck Hulk Hogan" then please just admit you want some kind of petty, vindictive revenge on someone just because — and perhaps eschew future arguments about morals.
posted by Dark Messiah at 6:44 AM on March 10, 2016 [7 favorites]
The consequences, however, are more dangerous. In the UK, strong libel laws have allowed the rich and powerful to silence the press and cover up crimes.
Devonian: this isn't a defamation case though, its a privacy case, so significantly different.
posted by biffa at 7:36 AM on March 10, 2016 [1 favorite]
Devonian: this isn't a defamation case though, its a privacy case, so significantly different.
posted by biffa at 7:36 AM on March 10, 2016 [1 favorite]
Not to mention whomever Terry Bollea is having sex with is not Hulk Hogan, the public figure
Believe me, if there were a way...
posted by Etrigan at 7:38 AM on March 10, 2016
Believe me, if there were a way...
posted by Etrigan at 7:38 AM on March 10, 2016
Now, you just wait 'till Murdoch/Hall hits. Then you'll see NEWS.
eeyew
posted by y2karl at 7:51 AM on March 10, 2016
eeyew
posted by y2karl at 7:51 AM on March 10, 2016
Let us never forget that, “[I]n 1986, Bollea ratted out his fellow wrestlers to crush a nascent unionization drive ahead of Wrestlemania II.”
Noted, but . . . what does that have to do with anything? It's ok to publish his sex tape because he did something shitty once? His sex tape is newsworthy because he's anti-labor? He should be shamed by having everyone see him having sex because he's a crappy human being?
I honestly have no clue what the "Ew, Hulk Hogan" comments in this thread mean at all. That we don't like someone so we should publicly shame them for what they do in the bedroom, I guess?
posted by chainsofreedom at 7:59 AM on March 10, 2016 [11 favorites]
Noted, but . . . what does that have to do with anything? It's ok to publish his sex tape because he did something shitty once? His sex tape is newsworthy because he's anti-labor? He should be shamed by having everyone see him having sex because he's a crappy human being?
I honestly have no clue what the "Ew, Hulk Hogan" comments in this thread mean at all. That we don't like someone so we should publicly shame them for what they do in the bedroom, I guess?
posted by chainsofreedom at 7:59 AM on March 10, 2016 [11 favorites]
I'd say the existence of a celebrity sex tape involving someone under the age of four would be very newsworthy. But there's nothing newsworthy about a sex tape involving consenting adults, and there's no special information to be gained by viewing the actual tape in any case.
posted by GhostintheMachine at 8:12 AM on March 10, 2016
posted by GhostintheMachine at 8:12 AM on March 10, 2016
That we don't like someone so we should publicly shame them for what they do in the bedroom, I guess?
Oh, no, to be clear, I think he's absolutely in the right here. I don't have anything else to say on the topic since I think it's pretty cut-and-dried.
He's just also a garbage person.
posted by uncleozzy at 8:21 AM on March 10, 2016
Oh, no, to be clear, I think he's absolutely in the right here. I don't have anything else to say on the topic since I think it's pretty cut-and-dried.
He's just also a garbage person.
posted by uncleozzy at 8:21 AM on March 10, 2016
"We know from reality television and the news that Hulk Hogan/Terry Bollea has two children in their twenties. So the fact that he has sex is anything but news. So why don't we just come out and say that some people like to see famous people have sex or (if reality television is any indication) do anything that leads them to believe that they are just like the people that they admire?"
It'd be great if people actually read up on things like what makes a revelation newsworthy in U.S. courts, and what the details are that make a case for newsworthiness, rather than just make dismissive appeals to their personal taste.
Gawker's original post and their post in response to a preliminary injunction.
Hogan/Bollea is undoubtably a public figure, and a public figure who has sought publicity through the sharing of intimate details about his life — most notably through the Hogan Knows Best "reality show."
In the tape, he's fucking his best friend's then-girlfriend, now-ex-wife while his best friend (with the apparent knowledge of the then-girlfriend) films them, and this appears to be taking place while Hogan is married to his previous wife. As a public self-proclaimed Christian, Hogan/Bollea has made moral statements about sexual morality that he appears to be violating.
Two previous cases involving intimate facts seem relevant: the Pam Anderson and Tommy Lee sex tape, which found that while copyright precluded distribution of the actual tape, the contents and descriptions therein were newsworthy in large part due to Anderson and Lee's voluntary disclosure of intimate details prior (notably, Anderson's previous porn work). The other case that turned up was Diaz v. Oakland Tribune, where a female student president was outed as trans*. She was a public figure, but had taken pains to conceal that she was trans* (i.e. not out), and the paper outed her in a snarky way while explicitly stating that it had no effect on her ability to do her job.
There is definitely an argument that the existence of a sex tape of a public figure who has intentionally profited from the release of intimate details about himself being filmed contradicting public professions of morality is newsworthy, and an argument can be made that this extends (by participating in a newsworthy act) to Heather Clem, his partner.
But, and this is why I brought up Diaz, if you read Gawker's post, it didn't do that. It just narrated the — puns intended — blow-by-blow of Hogan and Clem. Much as I enjoy salacious gossip, it's hard to argue that the newsworthiness of the underlying event justified the release of footage — at least, absent denials, etc. And Gawker didn't even try to make that case after being served with an injunction — they instead compared the tape to the Pentagon Papers and ignored that while there have been rulings holding that the "compelling public interest" standard is too high, they should have at least been able to come up with some ad hoc justification for why the public benefits from seeing the tape — especially because, in general, newsworthiness is an exception to invasion of privacy tort, where the court recognizes that while the reporting is indeed invading the privacy of a person, the interest of the public in that specific instance outweighs the interest of the person in protecting that private fact (e.g. if a politician is shitposting on 4chan and has taken steps to obscure that, it may be a private fact that still may have a public purpose in being publicized).
posted by klangklangston at 11:23 AM on March 10, 2016 [3 favorites]
It'd be great if people actually read up on things like what makes a revelation newsworthy in U.S. courts, and what the details are that make a case for newsworthiness, rather than just make dismissive appeals to their personal taste.
Gawker's original post and their post in response to a preliminary injunction.
Hogan/Bollea is undoubtably a public figure, and a public figure who has sought publicity through the sharing of intimate details about his life — most notably through the Hogan Knows Best "reality show."
In the tape, he's fucking his best friend's then-girlfriend, now-ex-wife while his best friend (with the apparent knowledge of the then-girlfriend) films them, and this appears to be taking place while Hogan is married to his previous wife. As a public self-proclaimed Christian, Hogan/Bollea has made moral statements about sexual morality that he appears to be violating.
Two previous cases involving intimate facts seem relevant: the Pam Anderson and Tommy Lee sex tape, which found that while copyright precluded distribution of the actual tape, the contents and descriptions therein were newsworthy in large part due to Anderson and Lee's voluntary disclosure of intimate details prior (notably, Anderson's previous porn work). The other case that turned up was Diaz v. Oakland Tribune, where a female student president was outed as trans*. She was a public figure, but had taken pains to conceal that she was trans* (i.e. not out), and the paper outed her in a snarky way while explicitly stating that it had no effect on her ability to do her job.
There is definitely an argument that the existence of a sex tape of a public figure who has intentionally profited from the release of intimate details about himself being filmed contradicting public professions of morality is newsworthy, and an argument can be made that this extends (by participating in a newsworthy act) to Heather Clem, his partner.
But, and this is why I brought up Diaz, if you read Gawker's post, it didn't do that. It just narrated the — puns intended — blow-by-blow of Hogan and Clem. Much as I enjoy salacious gossip, it's hard to argue that the newsworthiness of the underlying event justified the release of footage — at least, absent denials, etc. And Gawker didn't even try to make that case after being served with an injunction — they instead compared the tape to the Pentagon Papers and ignored that while there have been rulings holding that the "compelling public interest" standard is too high, they should have at least been able to come up with some ad hoc justification for why the public benefits from seeing the tape — especially because, in general, newsworthiness is an exception to invasion of privacy tort, where the court recognizes that while the reporting is indeed invading the privacy of a person, the interest of the public in that specific instance outweighs the interest of the person in protecting that private fact (e.g. if a politician is shitposting on 4chan and has taken steps to obscure that, it may be a private fact that still may have a public purpose in being publicized).
posted by klangklangston at 11:23 AM on March 10, 2016 [3 favorites]
"This strikes me as double problematic when the less newsworthy person is a woman, who is way more likely to be castigated for having a sex tape at all. "
I don't listen to Bubba the Love Sponge's show, so I can't say how much of a public figure her participation on it makes her (i.e. if she's on there all the time talking about her sex life, her sex life may be generally public record). But the comments she's made and background reporting assert that she and Bubba had an open relationship and that she's into making sex tapes with celebrities. She says she is embarrassed by this particular sex tape because Hogan is "cheesy," the way he's not very attentive (he takes a phone call at one point), and that the filming is unflattering and doesn't make her look as attractive as other tapes do.
So, not embarrassed by having sex tapes in general, but embarrassed by having a sex tape with Hogan — it seems like her priorities are straight (not sarcastic).
posted by klangklangston at 11:31 AM on March 10, 2016
I don't listen to Bubba the Love Sponge's show, so I can't say how much of a public figure her participation on it makes her (i.e. if she's on there all the time talking about her sex life, her sex life may be generally public record). But the comments she's made and background reporting assert that she and Bubba had an open relationship and that she's into making sex tapes with celebrities. She says she is embarrassed by this particular sex tape because Hogan is "cheesy," the way he's not very attentive (he takes a phone call at one point), and that the filming is unflattering and doesn't make her look as attractive as other tapes do.
So, not embarrassed by having sex tapes in general, but embarrassed by having a sex tape with Hogan — it seems like her priorities are straight (not sarcastic).
posted by klangklangston at 11:31 AM on March 10, 2016
Why not? They have a huge platform, and there's clearly a material difference in degree of damage, if nothing else, between a sex tape being posted on some obscure Wordpress blog nobody's ever heard of and one that's been posted on one of the most visited gossip blogs on the entire internet.
Because celebrity sex tapes are all over the internet and whatever legal justification exists for a judgment here is basically only being (potentially) enforced this way in this instance. No one should be singled out over an unenforced law, supposing that this is even a violation of law. Arguably Hulk Hogan had already previously opened the door to his sex life and fidelity in his marriage being part of his public persona. And it would be ridiculous if every random piece of sexual footage on the internet exposes the host to unlimited liability. As I said I do hate Gawker now (much more than I could care about Hulk Hogan, and I'm not even sure why everyone here seems to hate him) and I would be glad to see Gawker hit with a huge fine, but legally I do not see how that would be justified
posted by knoyers at 8:36 PM on March 10, 2016 [1 favorite]
Because celebrity sex tapes are all over the internet and whatever legal justification exists for a judgment here is basically only being (potentially) enforced this way in this instance. No one should be singled out over an unenforced law, supposing that this is even a violation of law. Arguably Hulk Hogan had already previously opened the door to his sex life and fidelity in his marriage being part of his public persona. And it would be ridiculous if every random piece of sexual footage on the internet exposes the host to unlimited liability. As I said I do hate Gawker now (much more than I could care about Hulk Hogan, and I'm not even sure why everyone here seems to hate him) and I would be glad to see Gawker hit with a huge fine, but legally I do not see how that would be justified
posted by knoyers at 8:36 PM on March 10, 2016 [1 favorite]
knoyers: "Arguably Hulk Hogan had already previously opened the door to his sex life and fidelity in his marriage being part of his public persona."
Still don’t understand this part. By this logic, if I ever acted in a movie in which I perform (simulated or actual) sex with someone, I could have that movie used against me if I tried to sue a person for invasion of privacy after that person leaked a sex tape of mine. Choosing to bare my body on film should not signal to a court that I do not value privacy.
And as for the hypocrisy angle: a sex tape of Bristol Palin would not be newsworthy, even though she is an advocate for abstinence until marriage. The fact that she had sex might be “newsworthy” to some people in this weird fun-house-mirror reality we now seem to be living in, but there are ways to prove that fact that do not involve the distribution of jerk-off material. It’s a bit too easy to say you’re allowed to publish pornography of a third party against their will as long as you find some angle from which to allege hypocrisy. We're all hypocrites in one way or another, so that’s thin gruel unless someone’s hypocrisy rises to compelling public interest — e.g., if it has major political implications.
I know I’m arguing from what-should-be as opposed to what-is. The extent to which existing case law may disagree with this is, to me, lamentable.
posted by savetheclocktower at 9:31 PM on March 10, 2016 [2 favorites]
Still don’t understand this part. By this logic, if I ever acted in a movie in which I perform (simulated or actual) sex with someone, I could have that movie used against me if I tried to sue a person for invasion of privacy after that person leaked a sex tape of mine. Choosing to bare my body on film should not signal to a court that I do not value privacy.
And as for the hypocrisy angle: a sex tape of Bristol Palin would not be newsworthy, even though she is an advocate for abstinence until marriage. The fact that she had sex might be “newsworthy” to some people in this weird fun-house-mirror reality we now seem to be living in, but there are ways to prove that fact that do not involve the distribution of jerk-off material. It’s a bit too easy to say you’re allowed to publish pornography of a third party against their will as long as you find some angle from which to allege hypocrisy. We're all hypocrites in one way or another, so that’s thin gruel unless someone’s hypocrisy rises to compelling public interest — e.g., if it has major political implications.
I know I’m arguing from what-should-be as opposed to what-is. The extent to which existing case law may disagree with this is, to me, lamentable.
posted by savetheclocktower at 9:31 PM on March 10, 2016 [2 favorites]
Arguably Hulk Hogan had already previously opened the door to his sex life and fidelity in his marriage being part of his public persona.
Who cares? Even porn stars are allowed to have a private life, including sex tapes that they don't share with the world. Sharing sexual material without the consent of all participants is still gross and creepy and wrong and anyone looking at it while knowing it was shared without consent is also gross and creepy and why are we even still discussing this?
He's just also a garbage person.
This is also not relevant so why keep bringing it up?
posted by shelleycat at 1:54 AM on March 11, 2016 [4 favorites]
Who cares? Even porn stars are allowed to have a private life, including sex tapes that they don't share with the world. Sharing sexual material without the consent of all participants is still gross and creepy and wrong and anyone looking at it while knowing it was shared without consent is also gross and creepy and why are we even still discussing this?
He's just also a garbage person.
This is also not relevant so why keep bringing it up?
posted by shelleycat at 1:54 AM on March 11, 2016 [4 favorites]
I know I’m arguing from what-should-be as opposed to what-is. The extent to which existing case law may disagree with this is, to me, lamentable.
Sort of. People getting their private shit shared against their will is lamentable. The repercussions to the much larger population of not-famous people if case law went the other way on some of this would be, in the opinion of a lot of people (including me), more lamentable. The balance of power in the world is strongly tipped in the favor of the famous and rich, and a presumption that they don't get to have absolute or even primary control over disclosure of facts about them is one of a vanishingly small few tools we have to limit their power.
posted by phearlez at 7:10 AM on March 11, 2016 [1 favorite]
Sort of. People getting their private shit shared against their will is lamentable. The repercussions to the much larger population of not-famous people if case law went the other way on some of this would be, in the opinion of a lot of people (including me), more lamentable. The balance of power in the world is strongly tipped in the favor of the famous and rich, and a presumption that they don't get to have absolute or even primary control over disclosure of facts about them is one of a vanishingly small few tools we have to limit their power.
posted by phearlez at 7:10 AM on March 11, 2016 [1 favorite]
> The balance of power in the world is strongly tipped in the favor of the famous and rich, and a presumption that they don't get to have absolute or even primary control over disclosure of facts about them is one of a vanishingly small few tools we have to limit their power.
I'd find it easier to agree with this if celebrity and/or wealth worked differently than it does. Hulk Hogan is a bad example because professional wrestling and reality TV are entirely about showmanship — but certain goals in life carry fame with them by accident. The best actors in the world are “celebrities” for the most part simply because they seek out other talented storytellers, which leads them somewhere near the Hollywood film industry — which makes them celebrities whether or not they want to be. Meryl Streep doesn’t do reality shows, but people ask her for photos in public the same way they ask Kim Kardashian.
People talk about celebrity being a trade-off — you can be famous and have all these doors opened to you, but in return you’ve got to be willing to accept that you don’t have a private life. That formulation implies that you're free to accept the deal or not, independent of your other choices. Unless they’re already established, actors can’t say no to the whole celebrity thing unless they’re willing to take themselves out of the running for some meaty roles.
I’d say the same about professional athletes: wanting to play organized sports at a high level makes you notable because of your talent, but that should not come with an automatic assumption that you're now a celebrity and hence have no private life.
Obviously in those groups there are fame-seekers who seem eager to take that trade-off, but I don't know of a good way of distinguishing those people in a way that makes judicial sense. If you could tell me that a decision against Hulk Hogan would not be binding on Jon Voight, that'd at least be something, though I doubt I'd feel that we'd have arrived at a sensible compromise.
posted by savetheclocktower at 11:55 AM on March 11, 2016 [1 favorite]
I'd find it easier to agree with this if celebrity and/or wealth worked differently than it does. Hulk Hogan is a bad example because professional wrestling and reality TV are entirely about showmanship — but certain goals in life carry fame with them by accident. The best actors in the world are “celebrities” for the most part simply because they seek out other talented storytellers, which leads them somewhere near the Hollywood film industry — which makes them celebrities whether or not they want to be. Meryl Streep doesn’t do reality shows, but people ask her for photos in public the same way they ask Kim Kardashian.
People talk about celebrity being a trade-off — you can be famous and have all these doors opened to you, but in return you’ve got to be willing to accept that you don’t have a private life. That formulation implies that you're free to accept the deal or not, independent of your other choices. Unless they’re already established, actors can’t say no to the whole celebrity thing unless they’re willing to take themselves out of the running for some meaty roles.
I’d say the same about professional athletes: wanting to play organized sports at a high level makes you notable because of your talent, but that should not come with an automatic assumption that you're now a celebrity and hence have no private life.
Obviously in those groups there are fame-seekers who seem eager to take that trade-off, but I don't know of a good way of distinguishing those people in a way that makes judicial sense. If you could tell me that a decision against Hulk Hogan would not be binding on Jon Voight, that'd at least be something, though I doubt I'd feel that we'd have arrived at a sensible compromise.
posted by savetheclocktower at 11:55 AM on March 11, 2016 [1 favorite]
If you could tell me that a decision against Hulk Hogan would not be binding on Jon Voight, that'd at least be something, though I doubt I'd feel that we'd have arrived at a sensible compromise.
Jon Voight has used his celebrity status to campaign for political causes and candidates for more than forty years. He's not that good an example of someone who just wants to work in a particular profession and leave the celebrity part behind.
posted by Etrigan at 1:17 PM on March 11, 2016
Jon Voight has used his celebrity status to campaign for political causes and candidates for more than forty years. He's not that good an example of someone who just wants to work in a particular profession and leave the celebrity part behind.
posted by Etrigan at 1:17 PM on March 11, 2016
I'd find it easier to agree with this if celebrity and/or wealth worked differently than it does. Hulk Hogan is a bad example because professional wrestling and reality TV are entirely about showmanship — but certain goals in life carry fame with them by accident.
That's not really the (or my, anyway) point, though. What I was trying to address is that it's challenging to write laws that protect people from inappropriate and irrelevant attention while insuring that the rich & powerful don't get to have absolute control over their own images/stories/news. So I think there's work still to be done to find the balance - and cases like this are part of how that happens - but I don't find it lamentable that the law is such that we get the power balancing that we do.
posted by phearlez at 1:31 PM on March 11, 2016
That's not really the (or my, anyway) point, though. What I was trying to address is that it's challenging to write laws that protect people from inappropriate and irrelevant attention while insuring that the rich & powerful don't get to have absolute control over their own images/stories/news. So I think there's work still to be done to find the balance - and cases like this are part of how that happens - but I don't find it lamentable that the law is such that we get the power balancing that we do.
posted by phearlez at 1:31 PM on March 11, 2016
"Sharing sexual material without the consent of all participants is still gross and creepy and wrong and anyone looking at it while knowing it was shared without consent is also gross and creepy and why are we even still discussing this?"
The problem is that I can imagine some instances where the actual footage being published would be newsworthy itself, and feel like making blanket statements like this is problematic for both journalism and the public interest.
For instance, I would very much doubt that David Cameron would consent to release footage of him fucking a severed pig's head (absent some Black Mirror blackmail), but the existence of that footage would be newsworthy, and because of the grotesque nature of the act, would be hard to believe without being able to actually see what the footage showed. Or if Ted Cruz alleged that Donald Trump filmed himself sexually assaulting Cruz, Trump's consent to release the footage would be less important than the newsworthiness of the footage, and the footage would seem like something that viewing it would be important for the public to be able to evaluate the claims.*
And, in general, making broad claims based on what strikes one person as gross and creepy is a pretty terrible way to make legal decisions given things like that even 10 years ago, a majority of Americans would have said that two men kissing was gross and creepy, and that the basic reasoning of Scalia's dissent in Lawrence v. Texas is that communities should be able to ban gay sex because it's gross and creepy.
So, we're discussing it because "gross and creepy" is a pretty deficient standard, and because it touches on a lot of issues that are complicated, ambiguous and important.
* That all said, those hypotheticals differ significantly from what the actual facts seem to be in this instance, which Gawker seems to be pursuing with the strategy of How to Grandstand While Being Awful and Losing in Court Spectacularly.
Because celebrity sex tapes are all over the internet and whatever legal justification exists for a judgment here is basically only being (potentially) enforced this way in this instance. No one should be singled out over an unenforced law, supposing that this is even a violation of law.
But it's a civil case. Civil cases basically require the injured party to pursue them, and we recognize that it's actually good (in general) when they do so — wage theft is rampant, but barely anybody enforces those laws or sues over them, but we'd all benefit if more people did.
"Still don’t understand this part. By this logic, if I ever acted in a movie in which I perform (simulated or actual) sex with someone, I could have that movie used against me if I tried to sue a person for invasion of privacy after that person leaked a sex tape of mine. Choosing to bare my body on film should not signal to a court that I do not value privacy."
It would be part of the evaluation, yeah. It was part of the evaluation in both Pamela Anderson cases, but explicitly rejected in the Anderson/Michaels case. With both of her cases, there was ultimately a settlement, preventing a final judgment from being made, but it looks like that court didn't agree with the decision that the prior one made at all. It's worth noting that Michaels and Anderson succeeded to some degree in the second case because they got an injunction early, preventing the dissemination (no pun intended) of the tape as widely as the Lee/Anderson tape had been. How many people have seen it plays into how private the facts are considered to be.
"And as for the hypocrisy angle: a sex tape of Bristol Palin would not be newsworthy, even though she is an advocate for abstinence until marriage. The fact that she had sex might be “newsworthy” to some people in this weird fun-house-mirror reality we now seem to be living in, but there are ways to prove that fact that do not involve the distribution of jerk-off material. "
Because the First Amendment makes the courts (rightly) pretty reluctant to second-guess the editorial determination of "newsworthy," it might be worth noting that a regularly-articulated definition of "newsworthy" is anything that would give a voter information about a need, question or demand in their own life. Another is anything of 'undefinable interest' that has attracted public attention. And since Bristol Palin, like everyone else we're talking about, has intentionally courted public attention, it's both newsworthy and a publication of hypothetical "facts" about a public figure.
But it's worth noting that "newsworthy" isn't the only factor considered in deciding whether an invasion of privacy has occurred, and that simply being newsworthy in itself isn't necessarily sufficient — the degree of public interest and newsworthiness matters, so something can be moderately newsworthy, e.g. a name of a convicted criminal — while not being sufficiently newsworthy to justify publication 15 years later, after the person has rehabilitated themselves and the notoriety of the crime has passed.
Finally, it's worth noting that this is something where state and (sometimes) common law is what decides what is or isn't newsworthy or what is or isn't an invasion of privacy, and the states all have varying definitions and rubrics to get to that point. Most of what I've read comes from New York and California (since that's where most media is based), but as far as I know, the Hogan case is going on in Florida, which would have its own case history.
posted by klangklangston at 2:07 PM on March 11, 2016 [3 favorites]
The problem is that I can imagine some instances where the actual footage being published would be newsworthy itself, and feel like making blanket statements like this is problematic for both journalism and the public interest.
For instance, I would very much doubt that David Cameron would consent to release footage of him fucking a severed pig's head (absent some Black Mirror blackmail), but the existence of that footage would be newsworthy, and because of the grotesque nature of the act, would be hard to believe without being able to actually see what the footage showed. Or if Ted Cruz alleged that Donald Trump filmed himself sexually assaulting Cruz, Trump's consent to release the footage would be less important than the newsworthiness of the footage, and the footage would seem like something that viewing it would be important for the public to be able to evaluate the claims.*
And, in general, making broad claims based on what strikes one person as gross and creepy is a pretty terrible way to make legal decisions given things like that even 10 years ago, a majority of Americans would have said that two men kissing was gross and creepy, and that the basic reasoning of Scalia's dissent in Lawrence v. Texas is that communities should be able to ban gay sex because it's gross and creepy.
So, we're discussing it because "gross and creepy" is a pretty deficient standard, and because it touches on a lot of issues that are complicated, ambiguous and important.
* That all said, those hypotheticals differ significantly from what the actual facts seem to be in this instance, which Gawker seems to be pursuing with the strategy of How to Grandstand While Being Awful and Losing in Court Spectacularly.
Because celebrity sex tapes are all over the internet and whatever legal justification exists for a judgment here is basically only being (potentially) enforced this way in this instance. No one should be singled out over an unenforced law, supposing that this is even a violation of law.
But it's a civil case. Civil cases basically require the injured party to pursue them, and we recognize that it's actually good (in general) when they do so — wage theft is rampant, but barely anybody enforces those laws or sues over them, but we'd all benefit if more people did.
"Still don’t understand this part. By this logic, if I ever acted in a movie in which I perform (simulated or actual) sex with someone, I could have that movie used against me if I tried to sue a person for invasion of privacy after that person leaked a sex tape of mine. Choosing to bare my body on film should not signal to a court that I do not value privacy."
It would be part of the evaluation, yeah. It was part of the evaluation in both Pamela Anderson cases, but explicitly rejected in the Anderson/Michaels case. With both of her cases, there was ultimately a settlement, preventing a final judgment from being made, but it looks like that court didn't agree with the decision that the prior one made at all. It's worth noting that Michaels and Anderson succeeded to some degree in the second case because they got an injunction early, preventing the dissemination (no pun intended) of the tape as widely as the Lee/Anderson tape had been. How many people have seen it plays into how private the facts are considered to be.
"And as for the hypocrisy angle: a sex tape of Bristol Palin would not be newsworthy, even though she is an advocate for abstinence until marriage. The fact that she had sex might be “newsworthy” to some people in this weird fun-house-mirror reality we now seem to be living in, but there are ways to prove that fact that do not involve the distribution of jerk-off material. "
Because the First Amendment makes the courts (rightly) pretty reluctant to second-guess the editorial determination of "newsworthy," it might be worth noting that a regularly-articulated definition of "newsworthy" is anything that would give a voter information about a need, question or demand in their own life. Another is anything of 'undefinable interest' that has attracted public attention. And since Bristol Palin, like everyone else we're talking about, has intentionally courted public attention, it's both newsworthy and a publication of hypothetical "facts" about a public figure.
But it's worth noting that "newsworthy" isn't the only factor considered in deciding whether an invasion of privacy has occurred, and that simply being newsworthy in itself isn't necessarily sufficient — the degree of public interest and newsworthiness matters, so something can be moderately newsworthy, e.g. a name of a convicted criminal — while not being sufficiently newsworthy to justify publication 15 years later, after the person has rehabilitated themselves and the notoriety of the crime has passed.
Finally, it's worth noting that this is something where state and (sometimes) common law is what decides what is or isn't newsworthy or what is or isn't an invasion of privacy, and the states all have varying definitions and rubrics to get to that point. Most of what I've read comes from New York and California (since that's where most media is based), but as far as I know, the Hogan case is going on in Florida, which would have its own case history.
posted by klangklangston at 2:07 PM on March 11, 2016 [3 favorites]
> Jon Voight has used his celebrity status to campaign for political causes and candidates for more than forty years. He's not that good an example of someone who just wants to work in a particular profession and leave the celebrity part behind.
It is not the best example. I had originally written Meryl Streep there, but swapped it out to illustrate that the standard is not “person I like” but rather “person who does not pursue fame for its own sake.” I dislike Jon Voight’s politics. But the point remains that a sex tape of Jon Voight, aside from being a Lovecraftian horror, should not be newsworthy even if this court buys Gawker's argument that Terry Bollea's sex tape is newsworthy simply because Hulk Hogan has occasionally talked about fucking.
> That's not really the (or my, anyway) point, though. What I was trying to address is that it's challenging to write laws that protect people from inappropriate and irrelevant attention while insuring that the rich & powerful don't get to have absolute control over their own images/stories/news.
I see your point. That's not something that worries me in this case just because the use of footage is, to me, beyond the pale. I agree that public figures perhaps have less of an ambit of privacy than the average non-famous person, but the airing of a sex tape (unless it was made for public consumption) is an invasion of nearly the most private thing I can think of, and thus falls nowhere near the line.
To go back to my Bristol Palin example: even if she tells everyone else to be abstinent before marriage, I don't think I would be entitled to (a) follow her around to see if she were having premarital sex, or (b) publish proof (collected despite Bristol's reasonable expectation of privacy) that she were having premarital sex, even if that proof fell into my lap.
(Two caveats. First: if she had no reasonable expectation of privacy, like if she were fucking in public or if we all just noticed that she was obviously pregnant [as illustrated by reality], then naturally that's different. Second: the person she fucked would obviously be legally entitled to say "I fucked Bristol Palin" since that person would be an equal participant in a consensual act.)
As far as other things that rich people might like to cover up: if they are of political importance, and if publication of those things advances a public interest beyond mere gossip, then I'm in favor of their publication. (For instance, I might feel differently in the Bristol Palin case if she were lobbying to reinstate laws against fornication rather than just advocating for a lifestyle.) But by default I think that a celebrity enjoys the expectation of privacy in the same places that a non-celebrity would. Exceptions to that rule certainly exist, but the burden of proof should be on the publisher.
posted by savetheclocktower at 2:10 PM on March 11, 2016 [1 favorite]
It is not the best example. I had originally written Meryl Streep there, but swapped it out to illustrate that the standard is not “person I like” but rather “person who does not pursue fame for its own sake.” I dislike Jon Voight’s politics. But the point remains that a sex tape of Jon Voight, aside from being a Lovecraftian horror, should not be newsworthy even if this court buys Gawker's argument that Terry Bollea's sex tape is newsworthy simply because Hulk Hogan has occasionally talked about fucking.
> That's not really the (or my, anyway) point, though. What I was trying to address is that it's challenging to write laws that protect people from inappropriate and irrelevant attention while insuring that the rich & powerful don't get to have absolute control over their own images/stories/news.
I see your point. That's not something that worries me in this case just because the use of footage is, to me, beyond the pale. I agree that public figures perhaps have less of an ambit of privacy than the average non-famous person, but the airing of a sex tape (unless it was made for public consumption) is an invasion of nearly the most private thing I can think of, and thus falls nowhere near the line.
To go back to my Bristol Palin example: even if she tells everyone else to be abstinent before marriage, I don't think I would be entitled to (a) follow her around to see if she were having premarital sex, or (b) publish proof (collected despite Bristol's reasonable expectation of privacy) that she were having premarital sex, even if that proof fell into my lap.
(Two caveats. First: if she had no reasonable expectation of privacy, like if she were fucking in public or if we all just noticed that she was obviously pregnant [as illustrated by reality], then naturally that's different. Second: the person she fucked would obviously be legally entitled to say "I fucked Bristol Palin" since that person would be an equal participant in a consensual act.)
As far as other things that rich people might like to cover up: if they are of political importance, and if publication of those things advances a public interest beyond mere gossip, then I'm in favor of their publication. (For instance, I might feel differently in the Bristol Palin case if she were lobbying to reinstate laws against fornication rather than just advocating for a lifestyle.) But by default I think that a celebrity enjoys the expectation of privacy in the same places that a non-celebrity would. Exceptions to that rule certainly exist, but the burden of proof should be on the publisher.
posted by savetheclocktower at 2:10 PM on March 11, 2016 [1 favorite]
"I always knew the concept of “celebrity” was a weird thing, but I never realized that some people apparently think that it's a magical status that makes footage of you fucking somehow “newsworthy.”"
Try the British press, even the "quality" element is full of "footballer's cousin's brother's ex-wife drives car into lamp-post" type crap, the big articles, while something on Syria's peace negotiation gets 3 sentences
posted by maiamaia at 5:27 AM on March 13, 2016 [1 favorite]
Try the British press, even the "quality" element is full of "footballer's cousin's brother's ex-wife drives car into lamp-post" type crap, the big articles, while something on Syria's peace negotiation gets 3 sentences
posted by maiamaia at 5:27 AM on March 13, 2016 [1 favorite]
Verdict's in; jury awards Hogan $115 million in damages.
posted by rewil at 3:58 PM on March 18, 2016 [7 favorites]
posted by rewil at 3:58 PM on March 18, 2016 [7 favorites]
Tampa news is saying $55M economic damages and $60M emotional damages.
posted by Etrigan at 4:28 PM on March 18, 2016 [1 favorite]
posted by Etrigan at 4:28 PM on March 18, 2016 [1 favorite]
HULKAMANIA RUNNING WILD
posted by save alive nothing that breatheth at 4:31 PM on March 18, 2016
posted by save alive nothing that breatheth at 4:31 PM on March 18, 2016
If the entire Gawker "empire" is worth that in aggregate, then Nick Denton is a much better business man than I've ever given him credit for. Well, except for the whole losing-the-lawsuit bit, that is.
posted by Halloween Jack at 5:37 PM on March 18, 2016
posted by Halloween Jack at 5:37 PM on March 18, 2016
I'm no fan of Denton and Company but I still believe that humiliating Hulk Hogan was one of the BEST things that Gawker has ever done. But then, Trump won Florida, so why wouldn't a Florida jury side with a morally abhorrent professional liar? In fact, Hulk should be on the short list for Trump to name as his VP running mate, because, you know, they are two of a kind.,
posted by oneswellfoop at 7:51 PM on March 18, 2016
posted by oneswellfoop at 7:51 PM on March 18, 2016
Gawker could have found a way to humiliate him that wasn't, like, illegal and unethical.
Oh, wait, it's Gawker though. Of course they went with illegal and unethical.
posted by tobascodagama at 8:00 PM on March 18, 2016
Oh, wait, it's Gawker though. Of course they went with illegal and unethical.
posted by tobascodagama at 8:00 PM on March 18, 2016
In that vein, if Gawker had only released Hogan's N-word rant that really did all the damage, would he have been able to sue to the same effect? I haven't heard anything about him going after the Enquirer, who ended up getting that scoop.
posted by Etrigan at 8:20 PM on March 18, 2016 [1 favorite]
posted by Etrigan at 8:20 PM on March 18, 2016 [1 favorite]
Can't Gawker appeal to a higher court, if they want to (and have the money)?
(I'm assuming you can pretty much take a civil trial all the way up to the US Supreme Court, if you really want to, but what do I know?).
posted by Mezentian at 8:31 PM on March 18, 2016
(I'm assuming you can pretty much take a civil trial all the way up to the US Supreme Court, if you really want to, but what do I know?).
posted by Mezentian at 8:31 PM on March 18, 2016
The answer to my question is: yes, Gawker can and will appeal.
posted by Mezentian at 9:08 PM on March 18, 2016 [1 favorite]
posted by Mezentian at 9:08 PM on March 18, 2016 [1 favorite]
Here's Nick Denton with a long post on the verdict.
posted by kate blank at 2:36 PM on March 22, 2016 [2 favorites]
posted by kate blank at 2:36 PM on March 22, 2016 [2 favorites]
Hulk Hogan: Character has a bigger penis than in real life
That's, uh, up there with Trump's pressers as statements, comprised of words, with little to no basic in fact,
And it's a legal argument, under oath, in a court of law.
posted by Mezentian at 3:01 AM on March 23, 2016
That's, uh, up there with Trump's pressers as statements, comprised of words, with little to no basic in fact,
And it's a legal argument, under oath, in a court of law.
posted by Mezentian at 3:01 AM on March 23, 2016
« Older "You can do it! You can do it! You can do it!" | Katamari Damacy is pretty much the same. Newer »
This thread has been archived and is closed to new comments
posted by corb at 6:43 PM on March 9, 2016 [6 favorites]