It sounds like a particularly heinous episode of a late night cartoon.
The wife of Bubba the Love Sponge, his legal name, had sex with Bubba’s friend Hulk Hogan.
Unfortunately for those that prefer reality not resemble South Park, all of this in fact did occur. And a video exists, which found its way onto Gawker’s website.
Hogan alleges the posting of the video violates his privacy. He also asserts he had no knowledge he was being recorded.
Gawker, on the other hand, claims that this video is newsworthy and that the public had an interest in seeing it, partly due to the fact that Hogan routinely discusses his sex life in public.
This case is noteworthy in that it provides a nice litmus test for how far the First Amendment may be stretched when publishing embarrassing facts about public figures.
The standard rule for invasion of privacy suits is the information must be highly offensive to the reasonable person and of no legitimate public interest.
It would be wise to err on the side of caution when issues of newsworthiness are brought up.
Differential treatment should be given to the media and publishers to determine what is worthy of their ink.
To do otherwise would be to invite potential abuse that far outweighs the harm that may come to individuals such as Hogan.
It is true our democracy would continue to function if no one had ever seen Hulk Hogan in the act. However, Hogan is a celebrity and has invited public scrutiny into his life.
Legal principles must be defined by general rules so that they may be applied in specific circumstances, and for this reason, Hogan must lose out.
If there was the possibility of being sued for millions of dollars, congressmen might have been afraid to question President Clinton’s affair with Monica Lewinsky and newspapers might have been afraid to run stories about it.
The argument can and has been made this was irrelevant to Clinton’s ability to perform the functions of his job.
Would television programs have been afraid to question the appointment of Clarence Thomas during his nomination hearings over similar matters?
As is commonly said in defense of free speech, hurt feelings are no reason to limit expression.
Privacy is certainly important, and this is in no way intended to denigrate the Fourth Amendment, which protects our privacy and property rights against the state.
But isn’t Hogan simply arguing this expression should be muzzled because it makes him uncomfortable?
Acts he reasonably presumed to be private have been brought to light, and now he is offended that others know about it due to Gawker’s actions.
This discomfort Hogan is experiencing is similar to a lot of other discomfort caused by offensive speech the courts have routinely protected in the name of free and unhindered public dialogue.
zaochamb@indiana.edu
