FAN 102 (First Amendment News) Len Niehoff on Hulk Hogan’s $140.1M Award Against Gawker

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The magnitude of Hogan’s $100 million damage claim could have a serious chilling effect on all media who report on public figures and their lifestyles. — Len Niehoff (3-16-16)

Will there be a chilling effect on journalists? I hope not. I guess editors will have to address that. — Erwin Chemerinsky (3-21-16)

Prof. Len Niehoff

Prof. Len Niehoff

Recently, a Florida jury rendered a $115 million verdict (YouTube video here) against Gawker, this in connection with a 2012 posting  of a snippet of a video of Hulk Hogan (Terry G. Bollea) having sex with a friend’s wife. Subsequently, that jury awarded an additional $25.1 million in punitive damages. Gawker has said it will appeal.

The controversy arouse when Gawker posted a 13-year old secretly recorded sex video involving Mr. Hogan. He sued and prevailed on a claims of  invasion of privacy, intentional infliction of emotional distress, and economic harm.

Given the verdict, I invited Len Niehoff (professor at the University of Michigan Law School and of counsel at Honigman Miller Schwartz & Cohn) to comment on the Gawker $140.1 million dollar award and the First Amendment issues raised by it.

* * * * 

Last Friday, a Florida jury awarded Hulk Hogan $115 million in damages against Gawker based upon its publication of a brief and grainy videotape of the former professional wrestler having sex. That verdict exceeded the $100 million requested by Hogan and was purportedly compensatory, although the punitive message was tough to miss. A few days later the jury added $25 million more in formally punitive damages, which seems redundantly oppressive if not, so to speak, orgiastic.

The extravagance of the verdict is a problem unto itself. The evidence presented at trial seems wholly inadequate to yield such a number. And such outsized verdicts raise grave concerns when they come in speech cases. As the Supreme Court observed in New York Times, Co. v. Sullivan (1964), substantial damage awards can chill speech just as effectively as a criminal prosecution, casting a “pall of fear and timidity” over free expression. In Sullivan, the Court observed that the libel damage award at issue there was 100 times greater than the penalty imposed under the much-maligned Sedition Act. The verdict in question here, based on true speech, is about 28,000 times greater.

Apart from damages, the finding of liability is itself worrisome. In Snyder v. Phelps (2011), the Supreme Court held that the First Amendment barred invasion of privacy claims brought by a significantly more sympathetic plaintiff than Hulk Hogan. There, the father of a deceased soldier sued the Westboro Baptist Church for picketing and displaying offensive signs near his son’s funeral. The plaintiff advanced a variety of claims, including invasion of privacy. The jury awarded millions of dollars in damages to the plaintiff but the Supreme Court reversed, at various points in its opinion framing the relevant inquiry in two different ways.

Hulk Hogan

Hulk Hogan

In one portion of its opinion, the Court suggests that the test is whether the speech was of “only private concern.” The Court cited a case involving an individual’s credit report, which had been sent to a limited number of subscribers who were bound not to disseminate it. The Court noted that the publication in question there was of interest “solely” to the speaker and a specified audience.

If this is the test then Gawker clearly prevails. Prior to Gawker’s publication of the tape, Hulk Hogan had widely disseminated stories about his sexual exploits and they had become a matter of public discussion. These facts make it difficult (if not impossible) to argue that Hogan’s sexual escapades were “only” or “solely” of interest to him and a small collection of intimates.

In another portion of the opinion, the Court suggests that the test is whether the speech “can be fairly considered as relating to any matter of political, social, or other concern to the community.” The Court stressed that this is a highly contextual inquiry and that the “inappropriate or controversial character” of the speech is “irrelevant.”

 Hogan’s case presents a closer question under this standard but it is important to understand why. Let’s assume that Gawker had published a story describing Hogan’s sexual activities without showing the tape. Under those circumstances, it seems clear that Gawker’s conduct would pass the test. Gawker would simply have conveyed facts that had become a matter of public interest and on which a number of media entities had reported—and continue to report. Gawker would have done what the media have done for years: talk about the noteworthy sex life of a public figure.

What makes this case a closer one is Gawker’s decision to show the tape itself. This is almost certainly what outraged the jury. And it is not an irrelevant consideration—indeed, in Snyder the Supreme Court suggests that the “form” of the speech can matter. But should the distinction between describing and showing make a difference in this particular case? I am skeptical, for two primary reasons.

Last week’s jury verdict awarding Hulk Hogan $115 million had onlookers predicting the death of Gawker Media . . . . — Kaja Sadowski, USA Today, March 21, 2016

First, this distinction carries with it the risk that we will punish speech because it was conveyed in a particularly powerful form. The jury that was outraged over the tape might have greeted with relative indifference a Gawker report describing the same events. The video evokes a stronger, and potentially unreasoned, response. As media law scholar Jane Kirtley noted in a recent New York Times op-ed., the jury may well have thought to itself: “That could be my daughter, or my grandson. Or me.” But, of course, the jury would not want Gawker to report descriptively on those things, either. In other words, we need to ensure that uniquely compelling speech does not receive less protection because of its capacity to prompt us to ask the wrong questions.

Nick Denton (owner of Gawker Media)

Nick Denton (owner of Gawker Media)

Second, where form does seem to make a difference that difference will often lie in substantially greater and more invasive detail. Say, hypothetically, that a presidential candidate who has been described as having small hands wants to dispel any implications about the size of his penis. The candidate publicly offers a vague “guarantee” that there is “no problem” in this respect. Reporting on these events certainly raises no privacy concern. But we would likely feel differently about the broadcast of a purloined security video that showed the candidate in a restroom and provided definitive data.

In contrast, consider the hypothetical author of a memoir that offers detailed descriptions of his or her many sexual encounters. A report on these events would, again, raise no privacy concerns. But, here, we might also conclude that a videotape of the same events did not constitute an invasion of privacy, given the level of specificity that the author already shared with us. An argument can be made that the Hogan case is much closer to this hypothetical than to the prior one.

What’s next? The damage award will likely be reduced and a settlement may emerge. Or, perhaps, an appellate court will reverse. There is, after all, a compelling argument that Hogan cannot object to further publicity about his time in the sexual limelight having, well, “thrust himself” there.

* *  *

A top Gawker Media executive [Heather Dietrick, Gawker Media’s president and general counsel] says the company expects a jury’s multi-million dollar award in a sex video case will be overturned by an appeals court. — ABC News, March 21, 2016

* *  *

Commentaries 

Georgetown Appellate Litigation Clinic Files Brief in 1-A Retaliation Case 

Prof. Steven Goldblatt

Prof. Steven Goldblatt

In a brief recently filed on behalf of the Appellants in the case of Crouse v. Caldwell (4th Cir., # 16-1039), Steven H. Goldblatt (Counsel of Record) contends that on “February 19, 2014, former police detectives Richard Crouse and George Winningham filed this action against Chief of Police James Chad Caldwell, the Town of Moncks Corner, and the Moncks Corner Police Department. Plaintiffs alleged that Chief Caldwell constructively terminated them as retaliation for speaking on a matter of public concern when they spoke and delivered a citizen complaint form to an alleged victim of police abuse during their lunch break. Plaintiffs further alleged that Chief Caldwell acted as a final policymaker on behalf of the Town when he terminated them, and that the Town was also liable for that reason.”

In their 67-page brief, the Appellants argue:

I.  “Chief Caldwell Is Not Entitled To Qualified Immunity Because He Retaliated Against Plaintiffs’ Clearly Established Rights To Speak Outside Their Job Duties On Matters Of Great Public Concern,” and

II.  “The District Court Erred in Granting Summary Judgment to the Monell claim on the basis that the Town of Moncks Corner Had  not Formulated an Official Policy that Led to the Constitutional Violation.”

Additional Counsel for Appellants:

Brenda Rindge, “Lawsuit: Berkeley Sheriff candidate’s alleged affair played into forced resignations,” Post & Courier, March 17, 2015

Apple iPhone Controversy 

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Roberto Baldwin, “FBI backs off Apple, finds another way into iPhone 5c,” engadget, March 21, 2016

Apple vs FBI Director James Comey

President Obama’s Statement

Congressional Hearing 

Documents

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 Last Court Hearing: 22 March 2016, before Judge Sheri Pym

  • Government’s Ex Parte Application for a Continuance (March 21, 2016)
  • Apple’s Reply to Government’s Opposition to Apple Inc.’s Motion to Vacate Order Compelling Apple Inc. to Assist Agent’s Search (March 15, 2016)
  • Government’s Reply in Support of Motion to Compel & Opposition to Apple Inc.’s Motion to Vacate Order (March 10, 2016)
  • Government’s Motion to Compel Apple, Inc. to Comply with This Court’s Feb. 16, 2016 Order Compelling Assistance in Search (Feb. 19, 2016)
  • Judge Sheri Pym’s Order Compelling Apple to Assist Agents in Search (Feb. 16, 2016)
  • Government’s Ex Parte Application for Order Compelling Apple (Feb. 16, 2016)
  • Amicus briefs filed on behalf of Apple

National Constitution Center Hosts Citizens United Event 

Date: March 17, 2016

What is the state of elections and campaign finance, six years after the Supreme Court’s landmark ruling in Citizens United v. Federal Election Commission? In that case, the Court held that corporate funding of independent political communications in campaigns for public office cannot be limited under the First Amendment.

Since then, the Court also struck down aggregate limits on individual political contributions in a single election cycle. There have also been proposals to overturn Citizen United with a constitutional amendment. And to this point in the 2016 presidential campaign, super PACs and other outside groups have raised nearly $400 million and spent nearly half that amount.

Joining We the People to explore the constitutional landscape after Citizens United and to assess the decision’s impact on the 2016 election are two leading experts on the front lines of the debate.

  • David Keating is President of the Center for Competitive Politics.
  • Paul S. Ryan is Deputy Executive Director of the Campaign Legal Center. Podcast here

Trumping the First Amendment

Donald Trump (credit: Business Insider)

Donald Trump (credit: Business Insider)

  1. Scott McConnell, “Should Donald Trump Have First Amendment Rights?,” The American Conservative, March 23, 2016
  2. Rebecca Vipond Brink, “Trump Campaign Manager Corey Lewandowski Wants To Sue Buzzfeed For Negative Story, Doesn’t Understand The First Amendment,” The Frisky, March 22, 2016
  3. Bryan Adamson, “Donald Trump’s Incitement to Lawless Action, True Threats, and the First Amendment,” Huffington Post, March 21, 2016
  4. Dylan Stableford, “Donald Trump says protesters are violating his First Amendment rights,” Yahoo Politics, March 20, 2016
  5. Robert Knight, “Rallying against freedom of speech,” Washington Times, March 20, 2016
  6. Jonathan Stahl, “Hecklers & the First Amendment on the Campaign Trail,” Constitution Daily, March 18, 2016
  7. Andrew Napolitano, “Trump rally violence, the First Amendment and ‘the heckler’s veto’,” Fox News, March 17, 2016
  8. Michael Judge, “Donald Trump’s Orwellian threat to the First Amendment,” Chicago Tribune, March 17, 2016
  9. Morgan Brinlee, “All The Ways Donald Trump Proved He Doesn’t Understand The First Amendment,” Bustle, March 15, 2016

Job Opening at Media Coalition.

The folks the Media Coalition are looking for a new Communications Coordinator.

Contact: Kris Anne Bonifacio:  krisanne@mediacoalition.org

41lUQw-S8oL._SX329_BO1,204,203,200_Forthcoming Book

Forthcoming Scholarly Articles 

  1. Rebecca Tushnet, “The First Amendment Walks into a Bar: Trademark Registration and Free Speech,” Notre Dame Law Review (forthcoming 2016)
  2. Michael Kagan, “When Immigrants Speak: The Precarious Status of Non-Citizen Speech Under the First Amendment,” Boston College Law Review (forthcoming 2016)
  3. Ashutosh Avinash Bhagwat, “In Defense of Content Regulation,” SSRN (Feb. 10, 2016)

Notable Blog Posts 

  1. Eugene Volokh, “New Jersey court: Distributing vulgar flyer about coworker and wife not criminal ‘harassment’,” Volokh Conspiracy, March 18, 2016

News, Editorials, Op-Eds, & Blog Posts

  1. Paul Kampe, “Oakland University students trade free speech for free lunch at First Amendment event,” Oakland Press, March 22, 2016
  2. David Kravets, “Supreme Court punts in 1st Amendment Madden NFL legal fight,” ars technica, March 21, 2016
  3. Editorial, “Corporations can’t Hide Behind First Amendment,” Boston Globe, March 20, 2016
  4. Clay Calvert, “Does the First Amendment protect people who film the police?,” RawStory, March 20, 2016

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Review Denied

  1. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  2. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  3. Town of Mocksville v. Hunter
  4. Miller v. Federal Election Commission
  5. Sun-Times Media, LLC v. Dahlstrom
  6. Rubin v. Padilla
  7. Hines v. Alldredge
  8. Yamada v. Snipes
  9. Center for Competitive Politics v. Harris
  10. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Justice v. Hosemann 
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)
  4. Electronic Arts, Inc. v. Davis

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims)

Freedom of Information Case

 The Court’s next Conference is on March 25, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

LAST SCHEDULED FAN #101: “Levine & Wermiel on First Amendment & Right of Publicity — Using Justices’ Papers to Understand Zacchini v. Scripps-Howard Broadcasting Co.”

NEXT SCHEDULED FAN #103: Wednesday, March 30, 2016

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