Before we start — this case is before the court. It is not my intention to conduct a trial by media, which under these circumstances would be particularly inappropriate. The core issues here are the right of privacy and the right of free speech. These matters are far too important to be turned into some sort of Internet circus act.
The Hogan versus Gawker case is perhaps the single most defining case of the privacy rights of individuals under siege. The actual legal argument is pretty straightforward — Hogan claims Gawker invaded his privacy and did significant damage to his career by publishing a sex tape online. Gawker apparently (it’s unclear from coverage if this actually is the legal argument by Gawker, or an interpretation of the legal defense) claims that this is news, relates to freedom of speech and is therefore protected by the First Amendment.
It depends on how you look at it. Some might say that the First Amendment, which is arguably one of democracy and America’s greatest achievements, is a bit more important than the right of people to make money publishing sex tapes.
The First Amendment includes freedom of belief, and is very much a core value. This is a case where the legal principles involved are extremely important. To clarify the issues:
1. Constitutional rights do not include any licence to cause legal injury to other people.
2. The laws of defamation, invasion of privacy, slander, libel, and fraud relate to illegal acts by individuals, not constitutional rights.
3. The Constitution empowers governments to make laws, not to provide disingenuous excuses for breaking those laws.
The privacy issues are much more straightforward, and in this case downright ugly on face value. Information has emerged, ironically from testimony, that recording of the sex tapes may not have been conducted purely for entertainment value. This is a grey area, but it also hits the bottom line issues of the case. Subsequent publication may or may not be legal, but the nature of the publication and the intentions of the publishers raise more than a few legal questions.
Privacy, like free speech, is a right. There is no right given to any other party to infringe on those rights. At what point does the law decide that an individual’s legal right to privacy to have been infringed?
Privacy can be construed to be any matter of a private or personal nature. Can a court find that media outlets have more rights to invade privacy than individuals have to privacy?
If you’re somehow getting the impression that there is an element of extraordinary dysfunction in privacy laws, you’re quite right. There is also a culture of invasion of privacy, and the Internet is one of the worst offenders in this regard.
There’s a sort of urban myth that “there is no such thing as privacy anymore.” In practice, there are plenty of examples of this in real life. Legally, however, that’s not the case, and never has been. In fact, unless actually required by law, you don’t even have to give your name out in public. Nor are there any laws enabling people to intrude on your privacy. Intrusions into your private life are in fact a form of trespass, sometimes literally.
Consider this: to enter your home, police and other agencies require a search warrant. To invade your privacy, media, paparazzi, and other delightful specimens don’t have any constraints at all?
Legally, being in the public eye may make you a bit more newsworthy. It does not, however, abrogate your legal rights to privacy. You have the right to be a private individual with the same privacy safeguards as everybody else. There is no legal distinction between famous people and anybody else in terms of rights to privacy.
In Hogan’s case, there is no doubt that this matter has raised significant issues regarding his career, his business interests, and his personal image. The damages issues, however, are case-specific. The rights issues have a much wider, and potentially highly destructive, range of ramifications for personal privacy for everybody, particularly in the United States.
The arguments regarding freedom of the press in this case also deserve a mention. Even allowing for these substandard sewer which mainstream media has become, there is absolutely no legal basis whatsoever to give “news” any legal status whatsoever in terms of invasion of privacy. You can’t make a law which makes breaking another law OK.
Nor can anyone use the Constitution as an excuse for breaking laws. You can’t rob a bank and call it free speech. There is a very clear line drawn between freedom of expression and intrusions on personal liberty.
Before the Internet purists start talking about “censorship,” they might also consider that giving the blanket OK to releasing sex tapes also includes some very nasty stuff, including child pornography, snuff movies, and other materials. Would you call that freedom of expression? It isn’t.
This particular case may become one of the worst examples in history of insulting the whole idea of the First Amendment. The Constitution was written by true Libertarians who make the modern, soggy, petty minded versions of Libertarians look like pathetic apologists for basic libertarian concepts.
A few questions:
1. How does a tacky sex tape equate to a constitutional right?
2. Either the right to privacy can be legally enforced, or it can’t. Which is it?
3. Either the right to free speech will be respected in its proper context, or it will be exploited. Which is it?
It’s about time the courts made up their collective minds on this issue. Hogan’s famous theme song Real American, includes the words “…fight for the rights of every man.” That, believe it or not, is exactly what he is doing.
Couldn’t quite resist including the video:
