On Friday a jury in Florida ruled that Gawker Media harmed famous person Hulk Hogan by publishing a sex tape that featured Hogan. The news accounts are all over the place about the legal issues, mostly written by people with zero understanding of the law. From the best I can tell, the case was about whether or not Gawker had the right to post the video. If not, then they harmed Hogan and are liable for damages.
The answer as to whether they had the right to post the video is obvious. Gawker does not own the video so they can’t possibly have a right to post it. All the blather about the First Amendment simply does not apply. There’s no constitutional right to theft. The video is the property of the woman, Hogan or the person who filmed the two. This is not a complicated issue.
There’s well established law on this matter. The video was of two people engaged in a private act. They had an expectation of privacy. They either gave permission to the person that recorded them or they did not. The burden of proof is on the filmmaker who would have had both “performers” sign a release. If he failed to do that, then he does not have ownership of the video.
Unless Gawker could prove they bought the video from the rightful owner, the performers or the filmmaker, they were in possession of stolen property. It’s no different than if Gawker sold Hogan’s car or his personal belongings that they had stolen from his home. It’s not their property so they have no right to profit from it. When they decided to publish the video, they were liable for the consequences.
The usual idiots are wringing their hands over this case, claiming it is is a chilling of the press. They are wrong in that the press does not have the right to steal or the right to harm people for a profit. Gawker had every right to report the existence of the tape and the events surrounding its creation. That’s legitimate journalism and protected by the First Amendment.
Further, Gawker could have reported what they saw on the tape. If Hogan has a micropenis, for example, they could have made jokes about his micropenis. They could have said he was a terrible lover or wore socks to bed. If Hogan sued, he would have to show that Gawker lied or misrepresented him in some way. Those are loser cases, assuming the news outlet did not deliberately lie or manufacture facts.
This is not about press freedom. This is about theft. Frankly, Gawker should have been charged with theft. After all, if Nick Denton was found to be driving around in Hogan’s car, he would have been charged with possession of stolen property, unless he could establish had the permission to possess the car. In America, you have a duty to establish the provenance of property when you take possession of it.
This is why pawn shops have to take reasonable steps to make sure you are the rightful owner of whatever it is you are trying to pawn. They get your ID and run your property through the hot sheets, if available. The risk is that if the property turns out to be stolen, the pawn shop forfeits it without compensation. That’s because no one has a right to stolen property. That includes news organizations.
As far as I can tell, Gawker never tried to establish their legal ownership of the tape. They were never required to disclose how they obtained it. Frankly, this is a bigger problem than the so-called chilling effect on the news. We don’t want to live in a world where some weirdo can record your private doings and then sell the video to a website. They’re starting to be people in jail for this now. Reporters should not be exempt.
Now, it’s probably better that Gawker will be shuttered and the owner ruined. From what I understand, he is personally liable for some portion of the judgement. He will be a great example to remind other tabloid sites that they have to follow the law. Even if Hulk Hogan has a micropenis, he has rights like everyone else.