Editor’s Note: Paul Callan is a CNN legal analyst and a former media law professor. He is a former New York City homicide prosecutor and criminal defense attorney who currently serves as “of counsel” to Edelman & Edelman, PC and is senior trial counsel at CallanLegal, where he focuses on civil rights and wrongful conviction litigation. Follow him on Twitter: @paulcallan The opinions expressed in this commentary are his.
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Verdict sends message that out-of-control media must be more responsible, says Paul Callan
Media have broad protection to report on public figures but that doesn't extend to celebrity sex tapes, Callan says
A Florida civil jury of four women and two men administered the legal version of a “pile driver,” one of pro wrestling’s most dangerous moves, Friday in awarding to ex-wrestler Hulk Hogan $115 million in compensatory damages against Gawker Media and its CEO Nick Denton.
The Hulk (real name Terry Bollea), clad entirely in black, cried what appeared to be real tears as the juror tag-teammates used their combined weight to symbolically drop Gawker and Denton on their conjoined heads.
And on Monday, the same jury administered a final devastating blow to the already prostrate and squirming defendants in the form of a punitive damage award of $25 million. This brings the total owed by Gawker and Denton to $140 million, which approaches the entire $200 million net worth of both Gawker and Denton’s assets.
The jury specified that $10 million of the punitive damages are to be assessed to Denton and the remaining $15 million to Gawker. The purpose of punitive damages in civil cases is to punish defendants for particularly reprehensible conduct and to send a message to others that such conduct will not be tolerated in a civilized society.
Another way of looking at the astounding amount of the award is that it equates to approximately $3.4 million per second for the 41 seconds of offensive video, making this likely the most expensive video in media history.
In the unlikely event that the staggering award is upheld on appeal, it could be the equivalent of a financial death penalty for the embattled company and for other tabloid media gossip sites that feed on celebrity scandals and humiliation via videotape.
The jury awarded the damages to compensate Hogan for alleged pain and economic injuries he sustained when a secret tape of his consensual sexual encounter with a friend’s wife was publicly aired by Gawker. Though on appeal the award is likely to be reduced, it is a warning shot fired across the bow of a rapacious tabloid press.
Jurors and ordinary American citizens are fed up with out-of-control media that seem to believe that once the title of “newsworthy” is arbitrarily attached to an event or a person, the First Amendment will protect the publication of even the most salacious and offensive material that can be dredged up by sifting through celebrity mud.
Members of the media would be wise to remember that the special legal protections crafted by the courts to shield them from defamation and privacy invasion lawsuits are of relatively recent vintage.
The origin of these press protection doctrines began with the U.S. Supreme Court’s decision in New York Times Co. v. Sullivan in 1964. That decision protected civil rights activists and, as Supreme Court precedent, all others from being silenced by lawsuits filed on behalf of public figures and politicians. The court said a showing of “actual malice” (an act of reckless disregard for the truth or falsity of a statement rather than a simple mistake) is required before libel damages can be awarded to public figures in such circumstances.
In the years that followed, this sensible decision has somehow morphed into the concept that if an event or a person is “newsworthy,” the press can publish whatever it wants without fear of lawsuits for libel, slander or invasion of privacy.
Justice William Brennan, who delivered the opinion of a unanimous Supreme Court in the Sullivan decision, would be shocked to see his interpretation of the First Amendment twisted and deformed to allow the secret taping and video publication of sexual activity between consenting adults because one of them is famous.
The Hulk Hogan verdict is a reminder that the media need to be more responsible, and the courts need to clarify that the First Amendment protects the accurate reporting of political speech and truly “newsworthy” events. But the privacy rights of all Americans must also be respected.
The sleaze merchants of the tabloid media deserve no protection from the First Amendment to sell their wares. If they invade a citizen’s privacy, they must answer in court like other citizens. And if anyone thinks the Hogan verdict is an aberration, listen to the words of the Republican front-runner Donald Trump on the subject. His denunciations of the press and his threat to change libel laws seem to be resonating with a large number of his followers.
Trump would undoubtedly use a meat cleaver to solve a First Amendment issue that calls for a scalpel. A court and jury solution is preferable. The only way to preserve and protect the freedoms that the media enjoy under the First Amendment in the world’s greatest democracy is to make sure that those who abuse that freedom will be accountable to jurors – like those in Florida who have body-slammed both Gawker and Denton.
Note: This article was updated with news of the punitive damages awarded Monday and corrected information on the defendants’ net worth.
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