Did Gawker Cross Hulk Hogan’s Line?
Mar. 10, 2016 (Mimesis Law) — Personal and confidential to Gawker former Editor-in-Chief, Albert James “A.J.” Daulerio:
Don’t be a wise-ass in a deposition. Sarcasm never reads as well on paper as it sounds when you say it. You’re welcome.
“Can you imagine a situation where a celebrity sex tape would not be newsworthy?” asked the lawyer, Douglas E. Mirell.
“If they were a child,” Mr. Daulerio replied.
“Under what age?” the lawyer pressed.
It was a stupid question. It was an even stupider answer. In some worlds, an attorney might have chimed in with an objection, but not, apparently, this world. Yet, it goes to the issue that Bollea’s lawyers sought to argue, that Gawker has no standards at all.
Gawker’s founder, Nick Denton, had a more straightforward editorial policy:
Nick Denton, the site’s founder, has long rejected the editorial standards that he believes handicap more traditional news outlets: notions like “importance,” “fairness” and “of public concern” that adorn the high-minded mission statements of other publications.
“I have a simple editorial litmus test,” Denton told Politico Media in 2015: “Which is: is it true, and is it interesting?”
Is there something wrong with this? That’s what Bollea’s lawyers contend. To that end, they do what all lawyers do, well aware that it serves their client’s interest well. They hire an academic to say what they want said.
But on Wednesday, Hogan’s lawyers did their best to argue that Gawker’s behavior didn’t meet journalistic ethical standards — at least, not according to University of Florida journalism professor Mark Foley. [Ed. Note: It’s Mike Foley, not Mark.]
Foley, who was for three decades a reporter, editor and executive at the St. Petersburg Times — now known as the Tampa Bay Times — testified that the Gawker editors’ choices were beyond the pale. Reporters are obliged to avoid invading a subject’s privacy unless the news demands it, and to avoid going into lurid detail for mere shock value.
“You think how will Mr. and Mrs. St. Petersburg react over breakfast. … You have to step back and ask, ‘Is it necessary?’” he said, according to the Hollywood Reporter.
Freedom of the press is “extremely important,” he continued, but “common sense must drive what we do.”
Well, there are a lot of “tests” in there, gertruding notwithstanding. Is the freedom of the press constrained by what “Mr. and Mrs. St. Petersburg” feel comfortable with? If they grimace, does that mean the media has gone too far? What about the very sensitive St. Petersburgs, the ones who cringe when they read something outside of their itty bitty worldview? Who are these people anyway?
Or is it “common sense”? If so, where does it say what common sense is, since we all have it and it differs from person to person. And the fact that “common sense” is the absence of any cognizable thought doesn’t help either.
Maybe it’s the “beyond the pale” rule, if someone has the ability to draw the “pale” line so we know when we’re stepping beyond it.
Then again, the problem may well be that Mike Foley, the journalist cum academic. While he’s listed as a “master lecturer” rather than a professor (and I refuse to make the joke so don’t even think it), he is being asked a question that can’t be reasonably answered. Of course, he could have refused the expert witness fee and not taken the gig, knowing that he would be put on the stand to offer an opinion about which he had nothing to offer, but hey, money talks, right?
While Foley’s attempt at explaining some unwritten code of journalistic ethics as to what’s too sordid to publish is painfully obvious to anyone who appreciates the fact that there is no line that can ever be enunciated as to where newsworthiness crosses over to the dark side, phrases like common sense often resonate with juries. People love the idea of “common sense,” as it saves them tons of time that would otherwise be required for thinking. And thinking causes headaches, and no one wants to get a headache.
But Eric Goldman also chimes in on the question of how far is too far.
“Right now there’s an ‘anything goes’ mentality when it comes to publishing information about celebrities. If Gawker loses, we might begin to see some rethinking of that mentality,” says Eric Goldman, co-director of Santa Clara University’s High Tech Law Institute. “If Gawker wins, I think it will further embolden online publishers that anything related to celebrities is fair game. That could be used to justify publication of unredacted photos from the Fappening, for example.”
And indeed, Eric’s got a point. The internet has never been very good at respecting limits. Some see that as a flaw. Others as a feature. It’s all according to whose ox is being gored.
But even if Eric is right, it offers little guidance for the establishment of liability. Certainly, the amorphous “common sense” doesn’t help. Nor do Mr. and Mrs. St. Petersburg’s, whoever they are, feelings. Or even “beyond the pale,” wherever that may be. If the internet goes too far, it still doesn’t answer the question of how far is too far.
And since there is no rule of journalism by which Gawker, or any other media, must limit its exercise of the constitutional rights to a free press and free speech, there is no basis upon which a jury can find they crossed the line. And the question of why there’s even a trial remains a mystery.