Gawker: We Will Be Vindicated

In 2007, former Presidential candidate John Edwards made a sex tape with Rielle Hunter, who was producing promotional videos for his campaign. When news of that affair became public, it derailed Edwards' political aspirations.

Years later, the sex tape surfaced, and was reported on by outlets including The Daily Beast. If news sites had posted excerpts of that tape, would they have faced liability for invasion of privacy?

Until last week, the answer was probably not. As long as news organizations didn't obtain material unlawfully, and the material was truthful, it was considered safe to publish -- especially when it concerned people in the public eye.

But now that Terry Bollea, better known as Hulk Hogan, has obtained a $140 million verdict against Gawker for invading his privacy by posting excerpts of a sex tape, the answer is no longer clear.

Fabio Bertoni, general counsel to the New Yorker, brings up the Edwards-Hunter sex tape in a new column lamenting the impact of the Hogan verdict on the news industry.

"The reported sex tape of John Edwards and Rielle Hunter could have been considered newsworthy," Bertoni writes. "If the Hogan verdict stands, would a media outlet that published that video be at risk of being put out of business? Would we be worse off if no one were willing to publish such a video? You don’t have to be a First Amendment absolutist, in favor of the unlimited publication of sex tapes, to believe that we would."

For his part, Gawker founder and owner Nick Denton said this week that he expects to prevail on appeal.

"A state appeals court and a federal judge have already held repeatedly that the 2012 commentary and short video excerpt, which joined an existing conversation and explored the public’s fascination with celebrity sex tapes, were newsworthy," Denton writes in a blog post on Gawker. "We have had our day in trial court, and we lost. We will have our day back in appeals court, and we will be vindicated."

Denton has reason to be hopeful. In the last three years, the trial judge in the case, Pamela Campbell of Pinellas County, issued ruling after ruling that was nixed by the appellate court.

Back in 2014, Campbell ordered Gawker to remove the sex tape excerpt and a 1,400-word write-up by the site's editor, A.J. Daulerio. Gawker took down the grainy clip, but refused to remove Daulerio's commentary. The media company also appealed and, in May of that year, won a temporary stay of Campbell's order.

“It was within Gawker Media's editorial discretion to publish the written report and video excerpts,” a three-judge appellate panel wrote in 2014.

The judges added that Gawker's post dealt with a matter of public interest -- and that Hogan had called TMZ Live to discuss the sex tape, appeared on the Howard Stern Show to say that he had an affair with the wife of a friend, and “was certainly not shy” about disclosing details of a separate affair in his autobiography.

“Prior to the publication at issue in this appeal, there were numerous reports by various media outlets regarding the existence and dissemination of the sex tape, some including still shots therefrom,” the judges wrote in 2014. “Despite Mr. Bollea's public persona, we do not suggest that every aspect of his private life is a subject of public concern... However, the mere fact that the publication contains arguably inappropriate and otherwise sexually explicit content does not remove it from the realm of legitimate public interest.”

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