Commentary

Hulk Hogan Sex Tape Sparks Latest Battle Over Online Speech

Last October, after Gawker posted a one-minute excerpt of a sex tape of Hulk Hogan and a friend's wife, Hogan quickly went to federal court.

Hogan sought an order directing Gawker to remove the clip on the ground that it violated his privacy. But U.S. District Court Judge James Whittemore in Florida refused, noting that prior restraints -- or orders censoring content before trial -- are almost always unconstitutional. Besides, Whittemore wrote, the clip was of legitimate public interest given that Hogan was a public figure who not only starred in a TV reality show, but also discussed his personal life in a book he authored.

At that point, Hogan decided to sue Gawker in state court. There, things went very differently. The case came before Pinellas County, Fla. Circuit Judge Pamela Campbell, who obviously disapproved of Gawker's editorial decisions. Campbell not only ordered Gawker to remove the tape excerpt, but also told the site to take down the 1,400-word write-up by by A.J. Daulerio.

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Gawker deleted the clip (though it provided a link to another site where the video can be found), but refused to remove Daulerio's commentary. “A lawful order from a circuit court judge is a serious thing,” editor John Cook writes. “While we vehemently disagree with Campbell's order with respect to the video itself, we have chosen to take it down pending our appeal. But the portion of the order compelling us to remove the entirety of Daulerio's post -- his words, his speech -- is grossly unconstitutional. We won't take it down.”

Cook almost certainly is right in that the order is grossly unconstitutional. Whatever people think of the wisdom of displaying an excerpt of a sex tape, there's no valid reason to prohibit people from writing about sex tapes. Besides, numerous rulings have made clear that judges aren't supposed to censor speech before there's been a trial to determine whether the posts are libelous or otherwise illegal. What's more, a federal judge has already ruled that Gawker has the right to continue to display all of the material -- the video clip as well as the write-up.

Gawker appealed Campbell's order, and this morning an appellate court granted the Web site's request to stay the part of the injunction that relates to Daulerio's write-up, according to The Hollywood Reporter. Nonetheless, Hogan reportedly is trying to have Gawker held in contempt for disregarding the order before it was stayed, and for providing a link to the sex tape.

How the escalating battle between Gawker and Hogan will play out isn't yet clear. But for now, the case serves as another instance of a state court judge issuing a questionable order censoring online speech.

This is at least the third such order in around six months. At this point, it's probably not a stretch to say that some trial court judges simply don't believe that online speech is entitled to the same protection against censorship as material printed in newspapers or magazines.

Consider, Judge Thomas Fortkort in Fairfax County, Va. last year ordered local resident Jane Perez to remove posts she made on Yelp and Angie's List, where she criticized a contractor and also implied that someone from his company stole jewelry from her home. Perez appealed with the help of the ACLU and Public Citizen, and late last year, a three-judge appellate panel in Virginia lifted the injunction.

And earlier this year, Judge Kathleen Macdonald in Wayne County, Mich. ordered a local activist to remove his Facebook posts criticizing a proposed settlement of a lawsuit against McDonald's. After Public Citizen got involved, Macdonald vacated the ruling.

2 comments about "Hulk Hogan Sex Tape Sparks Latest Battle Over Online Speech ".
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  1. Chuck Lantz from 2007ac.com, 2017ac.com network, April 29, 2013 at 8:38 p.m.

    If these judges can't understand even the most basic rights in their rulings, how can they possibly be expected to understand and justly rule on the more detailed aspects of the law?

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