Some of the most notable of cases involving public figures and the First Amendment include New York Times v. Sullivan (1964) and Curtis Publishing Co. v. Butts (1967). It is now settled law that public figures and private individuals enjoy different protections under the First Amendment. Sullivan suggested in a defamation case that speech about a public official is protected unless the defendant can prove a case of actual malice. Curtis Publishing ruled that public figures and public officials hold the same burden of proof in a defamation case. In 2016, the issue of public versus private figure rights was excavated from crypts of the United States Supreme Court and interjected into a new matter involving one’s right to privacy/reputation and the media’s right to free speech. The case is Bollea v. Gawker Media LLC.
In 2012, after Gawker Media received a 30-minute video clip of Terry Bollea, better known as Hulk Hogan, engaging in sexual acts with his best friend’s wife. The editors posted a one-minute, forty-one-second “highlight reel” to their website with the title, “Even for a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed is Not Safe for Work but Watch It Anyway.” Bollea went after Gawker, claiming both defamation and an invasion of privacy. He argued that Gawker along with Nick Denton, the founder, and A.J. Daulerio, its editor-in-chief, invaded his privacy and leaked the video to humiliate him for financial gain. Although the right to privacy is not explicitly a First Amendment issue, it does create problems for other First Amendment issues. In this case, defamation and privacy go hand in hand.
The interesting thing was Bollea’s fluidity in identifying himself both as a public and private figure: Hulk Hogan is a public figure, but not Terry Bollea. What Hogan says and does is not equivalent to what Bollea says and does. Bollea contended that the sex tape infringed upon Terry Bollea’s privacy, not Hulk Hogan’s. The release of the sex tape, he contended, damaged Hulk Hogan’s reputation, not Terry Bollea’s.
The Sullivan decision set the burden of proof for defamation on public officials: they had to prove actual malice, which means “the statements were made with knowing or reckless disregard for the truth.” The Curtis Publishing Co. case extended this burden of proof to public figures like Hulk Hogan. Bollea’s attorneys argued that it was essential for Bollea’s sanity to separate his public persona from himself.
In response, Gawker maintained that when Terry Bollea created the public persona of Hulk Hogan, he gave up his right to privacy. Additionally, Hogan’s over the top personality and boasting of his sex life and genitals made the release of his sex tape “newsworthy.” Gawker quoted Hulk Hogan boasting on a radio show that he had a ten-inch penis. Bollea contended that it was Hogan who said that, not Bollea.
The jury ruled in Bollea’s favor, awarding him with $140 million in damages, forcing the media outlet to file for bankruptcy. Media outlets will now have to think twice before posting provocative content, especially about public figures. This case also presents a slippery slope for public figures, giving them the freedom to define when and under what circumstances they want to be a public versus a private individual.
The media possess the power to shape what we think about and what we find important. It can even distort our perceptions of things, making certain realities seem different from what they truly are. The media can use this power to their own advantage, but more importantly to the advantage of the general public. They have the power to release information and expose things that are in the public interest. They have a huge target on its back from people who feel threatened by its power, but that target typically fuels outlets like Gawker, motivating them to delve deeper into the truth and expose it with no mercy.
It is hard to ignore the oddity of Bollea’s claims with respect to his two different personas. If Gawker released a sex tape under the title, “Even for a Minute, Watching Terry Bollea Have Sex in a Canopy Bed is Not Safe for Work but Watch It Anyway,” it would not have had the same traction. This enabled Bollea to argue an invasion of privacy, whereas Hulk Hogan could not. That Hulk Hogan boasted about his sex life and the size of his genitals still does not legitimize the release of a video that was recorded without consent in a private home.
People love a good controversy, but at what expense? Should a public figure’s privacy be overlooked and justifiably interrupted? I believe that Terry Bollea’s privacy was invaded and he suffered emotional damage from defamation. The media understand that they have a right, and even a duty, to expose public officials for checks and balances and even self-governance, but do they achieve that same goal when they attack public figures like Hulk Hogan?
In this case, there was a clear breach of privacy and no proven public interest. The media may be powerful, but they should never have more rights than we do. At the end of the day, public figures are citizens. Although they give up certain levels of privacy to operate as one, what happens in the privacy of their own home should not be considered newsworthy. I would uphold the jury’s conviction that Gawker was liable for the damage that they did to Bollea’s reputation and his emotional distress.
By Madison Lawrence, Senior, Political Science/Mass Communications