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Costly Clickbait

Terry Bollea as Hulk Hogan interacting with a fan at Fan Expo Canada
Terry Bollea as Hulk Hogan in 2014. Photo by Flickr user GabboT.

The First Amendment protects the right to publish nearly all news and commentary in the United States. In cases involving public figures, the publication does not even have to be factually accurate as long as no “actual malice” is involved.

But broad and important as it is, the First Amendment does not give journalists – or anyone else for that matter, since First Amendment rights apply equally to all – license to run roughshod over everyone else’s rights in order to get the stories or the audience they want. Journalists sometimes forget this important point.

You cannot, for example, knowingly or recklessly report a false, defamatory story about a person in public life. This is exactly how the law defines actual malice, and it subjects the author and publisher who engage in such actions to lawsuits for libel. Even in these cases, the First Amendment protects the right to publish the story; it just doesn’t protect responsible (or irresponsible) parties from the consequences of exercising that right.

A reporter cannot freely break into the offices of someone she is investigating and plant a bug. Nor can a reporter hack into a target’s voice mail. The now-defunct News of the World tried this latter approach in England, with disastrous results. Our First Amendment jurisprudence, which does not apply in the United Kingdom, would not make a difference in such a scenario.

It turns out you cannot misappropriate the private images of celebrities for your own commercial (or alleged journalistic) purposes, either. Or, at a minimum, you do so at your own considerable peril.

This is the lesson to draw from the recent legal dispute between Gawker Media and Terry Bollea, better known as his wrestling persona, Hulk Hogan. In 2012, Gawker published a brief excerpt of a video that depicted Bollea engaging in sexual activity with the wife of his then-friend, Todd “Bubba the Love Sponge” Clem. Stills from the video had appeared elsewhere, but Gawker was the first to share any portion of the actual footage.

Bollea’s lawyers argued that the decision to publish the video caused “emotional stress and harm” and that, moreover, the content was not newsworthy. Gawker countered that its decision to publish was protected by the First Amendment, especially since Bollea had publicly discussed his sexual exploits in the past.

Gawker’s arguments in defense of publishing the tape were garbage, and the Florida jury had no trouble at all recognizing the stench. Bollea was awarded $115 million in damages, exceeding the amount he originally sought, for economic harm and emotional distress caused by the story. Punitive damages will be established separately. Gawker’s founder, Nick Denton, has already said the company will appeal.

The fact that you, or I, or Terry Bollea, or anyone else discusses their sex lives in public does not mean they give up the right to control whether those activities are recorded. Nor do they give up the right to control the distribution of images of their activities, especially when those activities are conducted in a setting in which privacy is ordinarily assured.

Gawker was certainly free to editorialize about Bollea’s sex life, at least to the extent he brought that topic into the public sphere. But it was not free to commercially exploit his images without his consent. It wasn’t news. It was clickbait – expensive clickbait, as it turns out. Seeing the video of Bollea engaging in the activity in question added no information to a mere written statement about his behavior. Albert Daulerio, Gawker’s former editor-in-chief and the author of the commentary that accompanied the video, could have “made a contrast between an American icon and the man behind that American icon,” as Denton put it, without showing a single frame.

And what of the claim that Bollea knew he was being recorded? There has been dispute over this assertion, and Clem invoked his Fifth Amendment rights to avoid testifying. But whether Bollea knew a camera was present is ultimately irrelevant – as any celebrity who has had her phone hacked and her private pictures spread across the Internet can tell you.

The Florida verdict against Gawker ought to be a stern warning to any outlet that carries such stolen images in the future, or that continues to display those that have been hacked in the past. Everyone has what the courts call the “right of publicity” in his or her own image. We get to decide who uses our photos commercially, and whether we wish to charge them for the privilege. The exceptions are for images taken in public settings in which there is no reasonable expectation of privacy.

Come to think of it, the next time a photographer shows up at a newsroom with a topless photo of some sunbathing celebrity, shot at long distance with a telephoto lens or with a drone, an editor should think very hard about whether to purchase and publish the image.

When private individuals share intimate pictures without the subject’s consent, we call it revenge porn. I am pleased to report that people are starting to go to jail for it. The behavior does not become any more acceptable when the motivation shifts from an individual’s personal spite to a journalist’s audience-baiting.

The Florida jury gave Gawker exactly what it deserves. It will most likely be a considerable time before Bollea collects any money for his troubles, but I hope he holds out and collects a very substantial reward. If Gawker’s claims that it has the funds to handle any judgment turn out to be, shall we say, less than 100 percent accurate, I hope Bollea ends up owning Gawker itself. It would serve those so-called journalists right to end up having their victim become their boss.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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