Oh and with an added contempt of court: a Judge ordered them to take it down and they refused
Not just that: a Judge ordered them to take it down and they published an article bragging about their refusal.
This whole argument that public people don't have ANY right to privacy is utterly absurd, and Gawker have been very much been brought down to earth - hard. And funnily enough, thought I cant stand the man - they've been super critical of a variety of unethical and outrageous things Trump has said and done. But Trump hasn't ever published a sex tape, and defied a court order to remove it!
Would Gawker have been crucified if they had published that video and bragged about it? Why is the Hulk Hogan case being treated differently by people?
That said, the most damning item isn't that they posted the video. It's that they violated a court order to take it down.
This might be true from a legal standpoint, but from a practical/moral one I think that is the most damning thing. I can't recall of any other time a major news publication put tapes about anyone's private life and snarkily tried to push it as news.
I would hope so.
Also interesting: http://money.cnn.com/2016/03/04/media/hulk-hogan-gawker-jury...
A judge ruled Friday in St. Petersburg, Florida, that Hogan's legal team won't be able to cite Andrews' ongoing case in his defense.
- https://en.wikipedia.org/wiki/Erin_Andrews
I'm confused as to what the difference between these 2 cases are?
- The Andrews suit was against the people responsible for the recording while the Gawker suit is against the people who posted the video
- as a public figure Hulk Hogan has often discussed his sex life whereas Andrews has never made that part of her public life
- Andrews clearly had no knowledge of the tape. Hulk Hogan claims he didn't either though that fact is somewhat disputed.
Apparently, Hogan made some racist comments in parts of the video that Gawker did not post and those comments have hurt Hogan's career. It did not seem like the part Gawker posted had affected his career much either way before that, though it is hard to assess emotional distress. In Andrews' case, the emotional distress argument is much compelling in my opinion. Her job as a sports reporter involves constant travel and she now feels much less safe staying at hotels knowing that she has stalkers following her and hotel staff that are willing to help those stalkers get close to her.
It's the "compelling news interest" so I think it falls under the First Amendment for Gawker.
I wouldn't be surprised it'll be overturned on appeal.
But Florida does require a bond to be put up and it's significant. This might hamstring Gawker while they go through the appeals process.
"In the public interest" != "what the public is interested in".
Hence news interest in that area. It's distasteful but I prefer the 1A protect as much as possible before the govt or courts tries to narrow it down.
You are not allowed to say harmful or malicious things about another person that has the potential to cause damage to their reputation.
So no, this is not a textbook example of defamation.
You're also confused about the scope of the 1st amendment. It applies in civil cases. I'm not sure why you would think it doesn't. See, for example Hustler Magazine, Inc. v. Falwell for a famous example. The trial was a central plot point in a major motion picture!
Bringing up the Falwell vs. Flynt was more about protecting parody. Very few people would have taken seriously the idea that Falwell would run an ad in Hustler magazine, it was clearly satire. In this case, however, the information was recorded without the other's party's notice. I'd have to look up the laws in California, but I know in NYS, we have to inform the other party when we are recording are the conversation. In this case, it's the right to privacy vs. freedom of speech. The argument that since a person is a celebrity he does not have privscy rights never made sense. He is entitled to his privacy as much as the rest of us.
"The 1st Amendment protects you from the GOVERNMENT, not from INDIVIDUALS."
I was merely pointing out that this statement is wrong. The 1st amendment does protect defendants in civil trials. In this case it was found (rightly or wrongly) that Hulk's right to privacy outweighed Gawker's freedom of speech, but that doesn't mean the 1st didn't apply at all. It simply means it lost this time.
It doesn't even mean that celebrity's rights to privacy will always outweigh freedom of speech. I'm sure that TMZ prints stuff every single day that celebrities would prefer to remain private and you don't see them losing lawsuits very often.
This was a very particular case right on the edge of the line. And, by the way, it will certainly be appealed and Gawker could very well win in a higher court.
1. Snowden didn't reveal somebody's private information, but information about the abuses of a government agency.
2. There's a compelling public interest in making sure government agencies don't abuse their power. Not so with private sex tapes.
The United States has different classifications of laws: criminal and civil. Snowden's case is considered criminal. He was also reporting on massive civil violations the US was (and is committing) against people. That definitely is a free speech case.
Hulk vs Gawker is a civil case. Libel and slander are not protected.