Bye-Bye, Gawker. Seems Sensationalism Isn't Protected by the 1st Amendment

This article first appeared on the Foundation for Economic Education site.

Forget for a moment the question about whether celebrity sex tapes are "newsworthy." The real question is whether we want juries determining what is and what is not "newsworthy."

In March, a Florida jury awarded Hulk Hogan a plum $140 million in his suit against Gawker.com (Bollea v. Gawker). Hogan argued that Gawker's publication of a sex tape was an invasion of privacy, having no "news" value.

As I write, Gawker Media appears to be in a financial tailspin. In May, Gawker was denied its motion for a new trial or reduction in damages. Gawker was ultimately forced to declare bankruptcy, and its sale to Univision was quickly approved. Then, on August 18, it was announced that Gawker.com would cease operations.

And there seems to have been little love lost for the tawdry gossip site, which trolled the private lives of celebrities and politicians for over a decade.

The successful suit has already inspired similar legal threats by another star: Melania Trump, who considers herself to be harmed by "hurtful," "damaging" and "false" reporting by other news organizations.

Slippery Slopes

Despite grave anxiety within the media over Bollea's constitutional implications, any layman searching for an excuse to celebrate Gawker's demise need only cite the obligatory canard that not all speech is protected: Because, well, free speech and all that jazz, but you can't shout fire in a crowded theater!

Then again, those of us who have read Schenck v. United States probably die a little inside every time we hear this tripe. (Charles Schenck never shouted fire in any theater. He was convicted under the Espionage Act of 1917 for handing out anti-war pamphlets, encouraging people to oppose the draft and World War I. Oliver Wendell Holmes called this a "clear and present danger," after wringing his hands about imaginary men shouting fire in imaginary theaters.)

While Bollea does not raise the specter of a "clear and present danger," this "newsworthiness" exception to the First Amendment is proving to be no less arbitrary.

Basically, it appears that once a journalist crosses the Rubicon from "newsworthy" into "sensationalism," the First Amendment vanishes.

Regulation or Compensation?

I get it: Gawker made The National Enquirer look like The Economist. And even proponents of free speech are consumers who don't necessarily want their newspapers, blogosphere and TV news crammed with sensationalism and libel.

One might even say Hulk Hogan did precisely what the free market prescribes. He appealed to the courts and sought compensation for personal damages.

Yes, indeed. When someone publishes content that directly harms specific individuals, those individuals have recourse to civil tort claims, including for defamation, invasion of privacy, or misappropriation of likeness. Although, in defamation suits, "public figures" (celebrities and politicians) have a higher burden and must prove the defendant's malicious intent.

Hogan sued under an invasion of privacy theory, which is an extension of defamation law. While proving malice is not generally required, if demonstrated, it can serve as a basis for punitive or emotional distress damages. Of the $140 million, Hogan got $25 million in punitive damages and $60 million in damages for emotional distress.

Yet if one verdict can put a media company out of business, this seems very much like a form of arbitrary regulation of the press.

The Supreme Court has even held that excessive punitive damages—effectively, a state-imposed penalty for malicious behavior—can be a due process violation. Hogan's punitive award is not the most disproportionate of all time (the court suggested that awards below "a single-digit ratio between punitive and compensatory damages" may satisfy due process).

But Gawker asserts that $25 million is way out of step with comparable cases and reminded the court that the only times Florida plaintiffs have been awarded such an amount were for wrongful death cases against tobacco companies. Gawker further insisted that the emotional distress award posed similar questions of due process, excessiveness and whether the jury was acting out of "passion and prejudice."

This could be fair compensation for damages, but it could also be state-enforced punishment for speech that the jury decided was not "newsworthy" enough for constitutional protection.

Should Journalists Be Licensed?

If a journalist's free speech can be indirectly regulated in this way, it would also make sense to impose a more direct regulation or even a license requirement. It would seem that the conventional public policy arguments of consumer protection should equally apply to journalism.

As a constitutional question, it is not entirely obvious that journalists are different from other regulated professions. While freedom of the press is protected by the First Amendment, there is nothing to suggest that it is solely meant to shield one profession.

Think of it this way. The Bill of Rights gives you a right to an attorney and a trial, yet lawyers still need to be licensed. The right to life is enshrined in the Fifth and 14th Amendments, yet a doctor saving your life still needs board certification.

Does Freedom of Press mean that journalists may present "newsworthy" information to the public, with reckless disregard for the truth (or personal privacy)?

After all, journalists have, throughout American history, affected war and peace, breached national security and even brought down presidents. Their opinions can set cultural trends, shape public opinion or subvert traditional authorities.

Many of my hairdressers never dreamed of such power, yet the state of California still makes them get 1,500 hours of training, and a license.

And speaking of hairdressers, what could Donald Trump have possibly meant when he said, "I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money"?

Setting aside whether journalists should engage in "horrible and false" attacks on anyone, this does sound an awful like a backdoor Aliens and Sedition Act.

Why didn't John Adams think of that!

Instead of literally throwing the anti-federalists in jail for "seditious libel," all Adams had to do when they published articles referring to his "hideous hermaphroditical character, which has neither the force and firmness of a man, nor the gentleness and sensibility of a woman" was sue them for "lots of money."

Yes, there is always that.

Leave Newsworthiness to Consumers

Reasonable minds can debate whether Hogan's damages were excessive (or whether non-economic damages should be capped for invasion of privacy claims). But leaving it to juries to balance so-called "newsworthiness" against a plaintiff's privacy seems to take us down a very troubling path.

I doubt very much that the folks who recently unveiled a nude statue of Donald Trump don't harbor at least a little bit of malice toward Trump. Well, is it "newsworthy" ("art worthy")? Is it a misappropriation of Trump's likeness? Was it "newsworthy" when the National Enquirer reported that John Edwards was seen visiting his mistress at a Los Angeles hotel? Was it an invasion of privacy done with malice to sell magazines?

Even celebrities and politicians have a right to seek fair compensation against dishonest and malicious defendants. But last I checked, the First Amendment does not say "freedom of press so long as a jury decided it was newsworthy (e.g., no sex tapes, etc.)."

Robert Coleman is general counsel for Nutrishop Inc.