Several First Amendment experts said that even if the $115 million award against Gawker Media survived scrutiny in higher courts, any wider effect on press freedoms was likely to be limited.
Legal scholars were as startled as anyone by the scale of the damages awarded by a St. Petersburg, Fla., jury Friday to the retired professional wrestler known as Hulk Hogan in his suit against Gawker Media for posting a sex tape.
But several experts on the First Amendment said Saturday that the $115 million award was very likely to be reduced and that even if the verdict against Gawker survived scrutiny in higher courts, any wider effect on press freedoms was likely to be limited.
The celebrity former wrestler and reality-television star, whose real name is Terry Bollea, sued Gawker for invasion of privacy after the website posted in 2012 a black-and-white tape made in 2007 that showed Bollea having sex with the wife of his best friend at the time, Todd Clem, a radio shock-jock who changed his name to Bubba the Love Sponge Clem. Bollea said the videotape was made and distributed without his permission.
The jury’s award — $55 million in compensatory damages and $60 million for emotional distress — was greater than Bollea, 62, requested, an indication of how strongly the six jurors — four women and two men — condemned Gawker for posting the intimate scenes. The jury will return to court Monday to award punitive damages in the case.
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Even when the jury’s done, there will be appeals.
Either the trial judge or an appeals court can reduce the damages. But the case will be watched by legal experts because it touches on hazily defined boundaries of constitutional law in the Internet era: What is newsworthy? Where is the line between privacy and freedom of the press?
Whether this case has any direct implications for press freedoms depends on what happens next. A jury decision in one lower court does not set a precedent.
Because it came from a trial court, Friday’s verdict “doesn’t in itself move the bar on the constitutional question in any significant way,” said Geoffrey Stone, a professor at the University of Chicago Law School.
Lawyers for Gawker Media say they have strong grounds for an appeal. Before that happens, though, the company faces a series of legal hurdles as the trial comes to a close. Once the jury sets punitive damages, the judge in the case must set a bond that the company will have to post. In Florida, such bonds are capped at $50 million, a figure that would require the company to raise significant money.
In its appeal, Gawker plans to argue that a federal court and the state appeals court have already ruled that what it published was newsworthy, and thus the case should never have gone before a jury. Gawker is also set to argue that the jurors were not allowed to hear material evidence, some of which was unsealed Friday.
An appeals court generally does not question a jury’s assessment of the facts. But if the court were to overturn the verdict, it would point to legal errors in the trial judge’s instructions or rulings. Appeals courts tend to give more weight to First Amendment protections than trial courts do, experts said.
But even if the decision against Gawker is upheld, several legal experts say, its effect on wider press freedoms is likely to be limited.
“I think the damages are crazy, but I just don’t see this as a terrible blow to the First Amendment,” said George Freeman, executive director of the Media Law Resource Center, a trade association of law firms and media companies, including Gawker Media. Freeman is a former assistant general counsel of The New York Times Co.
“This was an unusual and extremely private matter,” Freeman said. If Friday’s decision stands, he said, “that could be bad for the future of sex tapes, but I’m not sure it would be a threat to anything else.”
The Gawker case is an outlier because few media outlets would consider publishing a graphic sex tape in the absence of a strong public purpose, said Lyrissa Barnett Lidsky, an expert in the First Amendment at the University of Florida’s Levin College of Law.
Still, the Gawker verdict could have more subtle effects, even on traditional newspapers and broadcasters, she said, as they consider whether to publish intimate personal details that are linked to bigger news stories. While mainstream media organizations already make such judgments, she said, the verdict against Gawker may provide a potent reminder of the stakes.
“Could this verdict signal a slight tilting back toward privacy?” she asked. “There are those who say that if privacy means anything, it means a sex tape, aired on the Internet for millions to gawk at.”