Award could shock appellate courts, weighing in on the murky question of where privacy begins and First Amendment protections end
The $115 million that a jury awarded Hulk Hogan from Gawker Media on Friday could end up in the Supreme Court, said leading attorney Bert Fields on Saturday.
“There is the possibility that, ultimately, it could go all the way to the United States Supreme Court,” he told TheWrap. “You have a constitutional issue.”
The massive award could actually backfire for Hogan, said the famed trial lawyer who has represented Michael Jackson, Tom Cruise and many others in leading media and libel cases.
“The award strikes me as being very, very high and perhaps the plaintiffs may be sorry they got that much, because an appellate court might be somewhat shocked by the amount of the award and thus take a tougher view on the First Amendment right,” Fields said.
“Judges are only human. To come in with a $115 million judgment is immediately going to create an emotional reaction,” he added. “They can reverse a damage award, which they think is based on passion and prejudice.”
Fields also said that the $115 million sum could also “influence, suddenly, their decision on whether this is within his right of privacy or not.”
The jury ruled that Hogan suffered severe emotional distress over the publication of segments of a tape that featured him having sex with a friend’s wife, and that his privacy was invaded by the publication of the footage. The $115 million award was even greater than the $100 million that Hogan had sought.
“The case appears to be whether a public figure has a limited right of privacy,” Fields said. “I have always contended that even the most famous public figure has some right of privacy. Very limited, but some.”
“Many people believe that once you’re a public figure, you have absolutely no right of privacy at all and anything is fair game if it isn’t defamatory,” Fields said.
The next step is an appeal to a higher state court, but Fields wouldn’t be shocked if it goes even higher.
In a statement, Gawker founder Nick Denton said, “We feel very positive about the appeal that we have already begun preparing, as we expect to win this case ultimately.”
The decision siding with Hogan tends to support Fields’ view, but he admitted that members of the media aren’t sure if particular issues, such as sex tapes, are protected by the First Amendment.
“Those are all things that will be argued in an appeal,” he said.
The major question is, simply, was the publication of the sex tape newsworthy?
UCLA law professor and free-speech defender Eugene Volokh told Fusion that he did not think people needed to see footage of Hogan having sex. “While Gawker argues that it’s newsworthy because of Hogan’s frequent commentary about his sex life, it’s hard to see how the actual video is newsworthy,” Volokh said.
“I’ve always contended that famous movie stars have a very limited right of privacy, and showing them having sex might as well be within that,” Fields said. “I also think religious matters might be within that.”
Gawker generated “about $45 million in advertising” in 2014 and was profitable, “earning about $7 million,” according to The New York Times.
We don’t know what would happen to Gawker if it actually had to pay such a large amount, but ABC News chief legal affairs correspondent Dan Abrams doesn’t think it matters, tweeting “115 million verdict against gawker?! Come on. That will get reduced a lot on appeal.”
Abrams also feels the legal impact will be limited, pointing to a Law Newz story that states, “If the jury’s verdict is upheld on appeal, the only real precedent will be that it’s not necessarily okay to post someone’s sex tape on the internet without permission . . . even a celebrity.”
That story goes on to say that “this isn’t some precedent-setting, earth-shattering case with aftershocks that will reverberate throughout time, shaking the foundations of our press’s freedoms.”
Essentially, Abrams and Law Newz feel that it’s simply about sex tapes and nude photos as opposed to all of journalism.
In a recent L.A. Times op-ed, Erwin Chemerinsky, the Dean of UC Irvine’s law school, wrote that “courts, including the Supreme Court, have failed to offer a definition or way of determining what is newsworthy. Defining the concept is problematic.”
Chemerinsky said that First Amendment absolutists will worry about the final outcome, but he envisioned a clear rule in the future: “No videos of people having sex should be made public unless all of the participants consent.”
Fields agreed with this notion, but he doesn’t think it sees the big picture.”That could be one solution, but I think that really isn’t the constitutional issue,” he said. “The constitutional issue is going to be the conflict between an individual’s right of privacy and the freedom of the press and the right to free speech.”