Hogan case marks turning point in ‘newsworthiness’ debate, UB first amendment expert says

BUFFALO, N.Y. – A judge denied Gawker Media’s motion for a new trial in the sex-tape case brought by wrestler Hulk Hogan.

It’s a ruling that Samantha Barbas, associate law professor at the University at Buffalo, says may lead media organizations to think twice before publishing sexual or sensational content about a celebrity.

“The reason this case is so significant is because of the First Amendment issues it brings up. The stakes in this case were already high, but with the public attention around the case, they’ve gotten even higher,” says Barbas, whose research focuses on the First Amendment, privacy law and defamation. “The Hogan v. Gawker case will go down in history as a pivotal moment in the battle between privacy and freedom of the press.

“Already, I think, this case has affected the media, and the ultimate outcome of the lawsuit could have a significant impact on media practices and freedom of the press going forward. Media organizations may think twice before publishing anything sexual or sensational about a celebrity because of what’s happened in the Hogan case.”

Hogan brought the suit against Gawker for posting a video in 2012 of him having sex. The judge on Wednesday not only denied Gawker’s motion for a new trial, but also upheld the jury’s $140 million award. Gawker is appealing the verdict.

Up until this point, says Barbas, whose book, “Newsworthy: Supreme Court’s Battle over Privacy and Freedom of the Press,” will be published later this year, the whole attitude of the courts has been to defer to the press on the issue of what is newsworthy.

But now, the debate over privacy and newsworthiness has taken on new dimensions because of the Internet and social media, she says.

“It used to just be celebrities, but now in the age of social media the average person is so much more conscious of privacy. That is why this case is so significant. Everyone is interested in it because they see their own privacy at stake. It could redefine what it means for something to be newsworthy.”

Now, in its appeal, Gawker will push hard on the First Amendment issues at play, Barbas says.

The newsworthiness of the video – or newsworthiness in general – Gawker will argue, should not be decided by a jury.

“Gawker will stick to its argument that First Amendment rights outweigh Hogan’s privacy rights,” she says. “How much privacy celebrities have under the law, and whether the First Amendment protects material like this leaked sex tape – these are open questions. The trend has been toward protecting the press, but with this case, the tide may be beginning to turn.”

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