What's legal, what's ethical and why it matters.

1. Gawker v. Hulk Hogan
v. Peter Thiel
What’s legal, what’s ethical
and why it matters

2. Hulk Hogan
• Real name: Terry Bollea

3. Hulk Hogan
• Real name: Terry Bollea
• In 2012, Gawker
published a video of
Hogan and Heather
Clem having sex

4. And now a brief pause for a picture
of Bubba the Love Sponge Clem

6. We now return to
our topic for the day

7. Hulk Hogan
• Real name: Terry Bollea
• In 2012, Gawker
published a video of
Hogan and Heather
Clem having sex
• Gawker founder Nick
Denton claims the video
is newsworthy because
Hogan is a public figure

8. Do you agree or disagree?
• Hogan is clearly a public figure
– Heather Clem probably isn’t, but she didn’t sue

9. Do you agree or disagree?
• Hogan is clearly a public figure
– Heather Clem probably isn’t, but she didn’t sue
• The goings-on of public figures meet the
ethical and legal standards for what is news

10. Do you agree or disagree?
• Hogan is clearly a public figure
– Heather Clem probably isn’t, but she didn’t sue
• The goings-on of public figures meet the
ethical and legal standards for what is news
• Is a sex video published without the
participants’ consent newsworthy?

11. Do you agree or disagree?
• Hogan is clearly a public figure
– Heather Clem probably isn’t, but she didn’t sue
• The goings-on of public figures meet the
ethical and legal standards for what is news
• Is a sex video published without the
participants’ consent newsworthy?
• What about Gawker’s argument that Hogan
had frequently bragged about his sex life?

12. Privacy as an idea and as law
• Louis Brandeis first
proposed a tort of
privacy in 1890
– “Gossip is no longer the
resource of the idle and
of the vicious, but has
become a trade.”

13. Privacy as an idea and as law
• But Brandeis’s first
principle is that there
must be an exception
for newsworthiness
– “The right to privacy
does not prohibit any
publication of matter
which is of public or
general interest.”

14. Privacy as an idea and as law
• The newsworthiness
test Brandeis proposed
was meant to be
applied to the political
arena

15. Privacy as an idea and as law
• The newsworthiness
test Brandeis proposed
was meant to be
applied to the political
arena
• Because of cases
following Times v.
Sullivan, today we apply
the same test to public
figures

16. Privacy law in one sentence
“One who gives publicity to a matter concerning
the private life of another is subject to liability to
the other for invasion of privacy, if the matter
publicized is of a kind that (a) would be highly
offensive to a reasonable person; and (b) is not
of legitimate concern to the public.”
— Reporters Committee for Freedom of the Press

17. How would you apply the law?
• Was Gawker’s act of publishing a sex video of
Hulk Hogan and Heather Clem without their
consent “highly offensive to a reasonable
person”?

18. How would you apply the law?
• Was Gawker’s act of publishing a sex video of
Hulk Hogan and Heather Clem without their
consent “highly offensive to a reasonable
person”?
• Was it “of legitimate concern to the public”?

19. How would you apply the law?
• Was Gawker’s act of publishing a sex video of
Hulk Hogan and Heather Clem without their
consent “highly offensive to a reasonable
person”?
• Was it “of legitimate concern to the public”?
• Should Hogan’s status as a public figure make
it more difficult for him to win in court?

20. Hogan wins $140 million

21. Gawker: The good …
• Exposed Toronto mayor
Rob Ford’s crack habit
through crowdfunding

22. Gawker: The good …
• Exposed Toronto mayor
Rob Ford’s crack habit
through crowdfunding
• Revealed the truth
about Manti Te’o’s
fictional dead girlfriend

23. Gawker: The good …
• Exposed Toronto mayor
Rob Ford’s crack habit
through crowdfunding
• Revealed the truth
about Manti Te’o’s
fictional dead girlfriend
• Reported that Facebook
was manipulating
Trending Topics

24. … the bad and the ugly
• Vicious account of a
one-night stand with
Christine O’Donnell

25. … the bad and the ugly
• Vicious account of a
one-night stand with
Christine O’Donnell
• A.J. Daulerio’s response
to a woman who
begged to have sex
video removed:

26. … the bad and the ugly
“The best advice I can give
you right now: do not
make a big deal out of
this. I’m sure it’s
embarrassing but these
things do pass, keep your
head up.”

27. … the bad and the ugly
• Vicious account of a
one-night stand with
Christine O’Donnell
• A.J. Daulerio’s response
to a woman who
begged to have sex
video removed
• Justine Sacco lost her
job over a silly,
insensitive tweet.

28. Enter Peter Thiel
• PayPal founder, Trump
supporter, Silicon Valley
billionaire

29. Enter Peter Thiel
• PayPal founder, Trump
supporter, Silicon Valley
billionaire
• Outed by Gawker’s
Valleywag site in
December 2007

30. Enter Peter Thiel
• PayPal founder, Trump
supporter, Silicon Valley
billionaire
• Outed by Gawker’s
Valleywag site in
December 2007
• Thiel secretly funds
lawsuits against Gawker
as “philanthropic
effort”

31. Thiel and the scales of justice
• It’s perfectly legal to
fund someone else’s
lawsuit

32. Thiel and the scales of justice
• It’s perfectly legal to
fund someone else’s
lawsuit
• Thiel was seriously
aggrieved by Gawker’s
actions in outing him

33. Thiel and the scales of justice
• It’s perfectly legal to
fund someone else’s
lawsuit
• Thiel was seriously
aggrieved by Gawker’s
actions in outing him
• Gawker’s real problem
was that it had, in fact,
invaded Hogan’s privacy

34. Thiel and the scales of justice
• Thiel’s secrecy meant
the jury couldn’t weigh
his involvement

35. Thiel and the scales of justice
• Thiel’s secrecy meant
the jury couldn’t weigh
his involvement
• Hogan’s insurance
caveat was a perversion
of the justice system

36. Thiel and the scales of justice
• Thiel’s secrecy meant
the jury couldn’t weigh
his involvement
• Hogan’s insurance
caveat was a perversion
of the justice system
• Thiel is funding other
anti-Gawker suits with
considerably less merit

37. Gawker declares bankruptcy

38. A threat to free speech?
• Does the Hulk Hogan verdict represent a
threat to Gawker’s right to report?

39. A threat to free speech?
• Does the Hulk Hogan verdict represent a
threat to Gawker’s right to report?
• Do Hulk Hogan’s privacy interests outweigh
Gawker’s interest in publishing the sex video?

40. A threat to free speech?
• Does the Hulk Hogan verdict represent a
threat to Gawker’s right to report?
• Do Hulk Hogan’s privacy interests outweigh
Gawker’s interest in publishing the sex video?
• What would you do to prevent a Thiel-style
campaign to destroy a media organization? Or
would you do nothing?