Hogan v Gawker


Political opponents or even neutral news sources would never be allowed to use photos, video, or presumably audio of the candidate doing bad stuff. We would have been denied the greatness of Romney’s “57%” speech, for instance. In such a case, the news would be able to WRITE about it (presumably) or do WSJ-style sketches maybe, but it would lack the impact and immediacy of photographic proof.

Kind of a strawman, but what if you acquired a picture of Trump hugging David Duke and needed to get him to sign a waiver in order to publish it? You’d never be able to actually use the photo because Trump would never allow it. You’d write an article describing the picture, but since no one would be allowed to see it Trump (or anyone, really) could just wave it away - “Oh, we’re not hugging in the picture; it’s just a weird angle. I’m actually stabbing him in the stomach. Believe me.”


You can photograph people in public places, you can’t spy on them in private residences.

You can photograph Ted Cruz at a Piggly Wiggly, you can’t climb the window to his hotel room and slip a camera in the cracked window.


To date, the best use of “can photograph people in public places” rule with a politician (to me):


This video in question was a film by a private citizen, in his residence, of his wife … (and the hulkster). Hogan already settled up with Clem for 5k, but he wanted to scare the media so they wouldn’t release the even more damning n-word rant video that he knew existed. This lawsuit was built from the ground up to put a gag on the media.

The slippery slope of this argument comes when someone like Donald Trump says he is a perfect husband and father, and video surfaces from strip club surveillance of him getting handsy, as you do, in the club. Could he sue? Isn’t his private life supposed to be private, or is it ok because he or the stripper (thank god) didn’t get naked? If they had been having sex, than it would be illegal to report on it, or release images/edited footage of the encounter as proof? Because they were in the act and naked? Privately recorded conversations and video get out all of the time, and you don’t see people getting 140 million out of it, is it because Terry Bollea was nude with a woman in the video that it is a break in privacy? Could I basically have carte blanche to do/say what I want on camera naked, and then lie about it in the media, and sue people that report it/release that footage?

What gawker did was crass, but it was obviously newsworthy. I mean it wasn’t even the first report of this encounter, and another publication had posted stills! This was news!


Legally speaking, no court is going to find that you have a reasonable expectation of privacy in a strip club that’s open to the public.


Nobody has suggested it wasn’t worth reporting - the sex lives of celebrities obviously funds a lot of tabloids.

The difference is that Gawker didn’t just report on the news, they posted a privately recorded porn video - you know that’s the case, and have conceded that in prior posts, so why do you keep pretending that all Gawker did was post “news”?


There’s also a huge difference between “There are reports of a video showing Senator Cruz in a sex dungeon” and posting/airing the video. You can even say “There are reports of video showing Senator Cruz in a sex dungeon. Reporters at KXXO have seen the video but can not vouch for its authenticity” if you want to hedge your legal bets even more.

Gawker published chunks of the video. When asked to remove the video (not take down the story, just take down the video. There were no objections to reporting that the video existed, or even what was on the video) they flashed the bird and doubled down. I, frankly, hope that the lawsuit does indeed “chill” the press. Otherwise, everything is fair game. You can find any number of excuses to publish a video that you get.

What’s annoying, to me, is that if Hunk Hogan was a quiet 24 year old actress, very few people would be saying “they have every right to publish this!” But since he’s a bombastic old man who likes to self publish, he’s somehow fair game?


Or any woman. If it was Lena Dunham, or Oprah, or Chelsea Clinton, and the New York Post had posted a video of them having sex with a neighbor’s husband, which the neighbor had recorded, the reason this shit is illegal would be much more apparent to Gawker’s defenders now.


Not exactly. You can take a picture of anyone in public, regardless of whether they are a celebrity. You can also sell or publish that picture regardless of whether they are a celebrity.

You can’t use a picture (or even drawing) to promote, endorse, or advertise anything without a release. Again, it doesn’t matter if they are a celebrity.

The distinction between celebrities and private individuals matters when the photo is not taken in public, or when the photographer starts following the subject around.


Not exactly. You can take a picture of anyone in public, regardless of whether they are a celebrity. You can also sell or publish that picture regardless of whether they are a celebrity.

In the UK context that’s not strictly true. You can’t*, for instance, publish (without consent) photos of children of celebrities simply because they are children of celebrities.

  • It’s not strictly illegal, or at least not explicitly, but it’s part of the press code of conduct that kind of has statutory underpinnings these days. And I wouldn’t be surprised to see a publisher lose a privacy case in court based on Article 8 rights.


There’s also precedent that photographing and distributing pornographic material of someone without their consent, even if they’re in a public place, is not ok. Massachusetts a few years ago passed a creepshot law after a court ruled that photographing up women’s skirts is legal.


Lawsuit part deux: http://www.clickorlando.com/entertainment/hulk-hogan-seeks-rematch-with-gawker-sues-over-transcript

Former pro wrestler Hulk Hogan is suing Gawker again, saying the gossip website leaked sealed court documents that quoted him making racist remarks.


Lol he’s pushing his luck now.


The remarks were in the video which he already sued for… so how does that work.


If you remember from the trial, the video evidence remained sealed and was not viewed by the jury and public. So, those remarks should have not been released publicly.

Though… the video definitely existed prior to Gawker’s publishing an excerpt of it. Gawker denied releasing these racist clips publicly, and it is highly probable someone else with access to the video leaked the racist clips. Gawker didn’t secretly tape the Hulkster, they just published excerpts of the footage given to them by a 3rd party. A 3rd party who probably could have shopped out this other bit of news to someone else.


The plot thickens…

Peter Thiel, Tech Billionaire, funder of the Hulkster’s legal team.

Thiel, an original co-founder of PayPal and the data analytics firm Palantir, ranks among Silicon Valley’s most influential investors. He was one of the earliest backers of Facebook, where he has a board seat, and has since been involved in a number of powerful venture capital firms, including Y Combinator, Clarium Capital, and his own Founders Fund. A registered member of the Libertarian Party ([U]and, it turns out, a California delegate for Donald Trump[/U]), he has invested in a variety of journalism endeavors, including the tech website Pando Daily and the non-profit group Committee to Protect Journalists. He also made a $10,000 donation to fund the efforts of right-wing sting artist James O’Keefe III.


What on earth is a “right-wing sting artist”? Wait… do I really want to know?


Gawker outed Peter Thiel as gay in 2007. This is evidently his revenge.

So, we have a conservative billionaire trying to anonymously destroy a media entity he hates. And we have a media entity that frankly deserves a great deal of hate. Nobody is worth rooting for in this fight.

In the end, though, I think you have to support Gawker. They’re journalists, of a sort. And we need journalists to feel free to offend people, especially rich and powerful people.

You already know who that is. O’Keefe is the guy who makes the bullshit videos purporting to show that Planned Parenthood sells baby parts and that ACORN helps people defraud the government.


Never heard of James O’Keefe? He’s the guy who had early success making undercover recordings of ACORN members. He keeps trying to replicate that success with more and more desperate stunts to expose the rotting heart of liberalism…most recently against George Soros’s foundation, where left a voice mail and then forgot hit ‘end call’ and left a long message talking to his co-conspirators about their plans.

There’s a short podcast about the failed sting here: http://www.newyorker.com/news/news-desk/james-okeefe-stings-himself


Ahhh, yeah I’m familiar with the ACORN situation but didn’t recognize the name or the term. Thanks, charmtrap. :)