By: Robert (Bob) Bianchi, Esq:
I had the privilege appearing on Fox News Happening Now show with host Jenna Lee and co-guest and friend Lis Wiehl, Esq.
We were asked to provide our legal analysis on a case involving wrestling “legend” Hulk Hogan and his lawsuit over a “sex tape” that was provided by an anonymous source to the media outlet Gawker. This tape reveals Hogan having sex and was recorded without his knowledge in the bedroom of his female counterpart.
Hogan has sued for invasion of his privacy. Gawker is defending the case citing the very strong protections given the media under the 1st Amendment of the US constitution.
This case pits 2 very important constitutional principals at odds with one another, that is, one’s right to privacy versus the media’s freedom to print “newsworthy” stories.
The premises behind these 2 constitutional rights is relatively easy, but in a case like this, their opposition to one another is very complex and has very real implications for many people going forward. The people in this trial and their public personas may be comical to some, but the legal issues at play and their impact on our privacy rights are very real. It is a case worth following.
Essentially, the right to privacy in today’s age has taken a severe beating. With the advent of social media, phone cameras, and news agencies like Gawker that seek to publish scandalous stories, privacy has become very difficult for us all to maintain.
But so too, the right of the media to publish without “editorial supervision” by the government has been viewed by the courts as an essential tool to a free and democratic society.
The Hogan case is that test case for the courts and will have far reaching implications to us all. While sex tape publications are not novel, this is the first time it has not been settled and is going to trial. For sure, both sides will argue that they are protected by the Constitution, but for different reasons, and under different provisions.
Hogan will argue that the surreptitious filming of consenting adults having sex in their bedroom is a protected privacy right. Gawker will argue that they are protected under the media privilege to publish this material, especially as Hogan is a public figure.
It is true that as a public figure you lose some constitutional protections to privacy under the law. But, this case examines just how much privacy a public figure loses. It is also true that in other contexts (like police searches) the courts have held that there is no greater privacy interest we all have than in our homes and bedrooms.
So, how does this affect other public figures, and eventually all of us? If Gawker’s defense of this case prevails as a matter of law, then a public figures’ privacy rights will have been further minimized, perhaps obliterated. People who illegally invade a public figure’s private life (even in the bedroom) will be subjected to having it published and there will be nothing they can do about it.
In our appearance on Fox News, it was my opinion that the courts need to put a stop to allowing the media to invade a person’s privacy like this. To me, the constitutional underpinnings of the media’s protections were clearly designed by our founding fathers so that the media was not “chilled” from reporting “newsworthy” stories so that democracy was not threatened by muting the press. A person’s sex life in their bedroom does not qualify to be considered essential for democracy if it is not a crime, in my opinion.
I cannot imagine the founding fathers ever contemplated that a person’s sex life in the bedroom was fair game for the media, or that democracy would be adversely affected by not allowing the media to publish a public official’s legal and private sexual encounters.
The media needs to be responsible. While the 1st amendment is, and should, be jealously guarded in a free society, this does not mean that there are no limitations- – especially when that right invades and obliterates another constitutional right, such as our right to privacy.
Some argue any limitation upon the press has a “chilling effect.” But I feel that allowing this kind of news reporting has a “chilling effect” upon those that may decide against becoming a public figure, figuring it is not worth the embarrassment and scrutiny to lose all of their privacy by virtue of their notoriety.
This would have a devastating effect on our culture. Public servants, entertainers, sports figures, artists, musicians, (to just name a few professions) may elect to remain “private” and we as a culture would miss out on the gifts they have to give to us all.
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© 2016 Robert (Bob) Bianchi, Esq.
[UPDATE: Since this appearance and writing of this blog post, the jury, in fact, found that Gawker violated Hogan’s rights and awarded him over $100 million dollars in damages.]