A famous guy was suing a media site for damages. It was news. Now, suddenly, according to someone, “it won’t have much effect,” and everyone can rest easy knowing they can go back to publishing anything and everything regardless of privacy laws, and call it “news”? The right of jurors to make a finding is also suddenly subject to trial by media?
Why the sudden turnaround? Why is the First Amendment, one of the cornerstones of democracy, being turned in to a flag of convenience for spruikers? Publishing the Hogan sex tape was basically a business decision, not a cry for democratic rights. Some might make a distinction between the values of Valley Forge and the smug precincts of tabloid publishing ethics, too.
Freedom of the press?
In many countries, freedom of the press is a very dangerous business. Journalists and publishers around the world die every year to expose corruption, crime and political or corporate malfeasances. They die and go to jail for major news issues that affect the lives of millions of people. How do you equate this case with that?
Since when is a 10-year-old sex tape “news”? Who considers it news? Many actual news publishers don’t. The New York Times has been around for a long time, and has somehow survived without publishing sex tapes. AP, AFP, Thomson Reuters, and others have also struggled along without doing so. Even FOX doesn’t do that. Nor does CNN. Must be a coincidence.
Gawker says that “today’s gossip is tomorrow’s news” on its site tab. It is, in fact, basically a gossip site. They’re actually still running a piece based on the sex tape, called Even for a minute, watching Hulk Hogan have sex in a canopy bed is not safe for work but watch it anyway. That’s a few days after the court verdict.
The distinction between news and commercial values is therefore an issue. A lot of people, notably publishers, journalists, editors and readers, might say that gossip is only news if it has some sort of news interest for them. In other media, gossip is a high value commodity and a core business interest. Celebrity culture is a multi-billion-dollar industry, and the dollar values of information are not the same as those in true news media. Why is this distinction not being made in the legal arguments about this case?
Even the word “news,” meaning literally “new information,” is getting hung out to dry here. Ten years ago isn’t exactly new. If this tape didn’t include someone famous, it’d be called soft core porn or archive background material. Not news. It’d also be called irrelevant and a waste of valuable site space. Few news professionals would take the slightest interest in ancient history. The only reason this case might have little effect on freedom of the press is specifically because it’s not news.
First Amendment rights and privacy – Is there a conflict?
The First Amendment confers the right of free speech and freedom of belief. It does not confer the right of invasion of privacy or immunity to prosecution for legal injuries. You quite literally can’t legally disenfranchise someone whose privacy has been violated on that basis. (See 14th Amendment for details.) You can’t run over someone and call it free speech. You can’t start a religion based on your non-existent right to hit people with your car, either.
There shouldn’t be any point of conflict between an individual’s right to privacy and the First Amendment. This is not a simple issue. Does a whistleblower invade privacy or business confidence? Or do they act in the public interest by exercising their right to free speech?
You can see how the First Amendment and privacy rights can work in a positive way in news media – Provided you recognize both rights. You can’t have just one or the other. How does someone else’s right to free speech mean you lose your rights and have to take the damage without recourse to law? All due respect to the experts, but this issue needs to be clarified, not trivialized.
