In Hogan sex tape fight, Gawker shows a courage rare for digital media

June 13, 2015, 1:40 PM UTC
IAB MIXX Advertising Week Conference
Nick Denton, founder of Gawker Media, speaks during the Interactive Advertising Bureau (IAB) MIXX 2010 conference and expo during Advertising Week in New York, U.S., on Monday, Sept. 27, 2010. The mobile advertising market may more than double in the U.S. to almost $500 million this year, researchers say. Photographer: Andrew Harrer/Bloomberg via Getty Images
Photograph by Andrew Harrer — Bloomberg via Getty Images

Gawker Media and ex-wrestler Hulk Hogan are set to square off before a Florida jury over a tawdry sex video. The case is important not only because Hogan wants $100 million, which could ruin Gawker, but also because it highlights how Gawker is alone among new media companies in waging the sort of public interest legal fights that were once second nature for traditional media.

The Hogan case, which goes to trial on July 6 in Pinellas County, Fla., turns on a 30-minute tape that shows the wrestler having sex with the then-wife of his friend. Gawker published an annotated 90-second version of it in 2012 on the grounds that the clip was newsworthy.

The legal background is complicated, but the gist of it is that Gawker would likely win the case—but for the fact the trial is taking place in Hogan’s hometown, and in front of jurors who are unlikely to look kindly on New York-based Gawker and its Oxford-educated founder, Nick Denton.

Gawker may lose before the jury, but would likely win an appeal on First Amendment grounds. The catch, however, is that a Florida state judge could force the company to post a colossal bond until the appeal is decided—wiping out Gawker in the meantime. Denton told Capital New York that there is a roughly 1-in-10 chance that Gawker will face “disaster.”

And as the New York Times reports, Denton thought about settling, but ultimately decided he would dig in and fight for the First Amendment principle instead.

Denton’s doughty attitude to legal threats (which Gawker also showed while exposing the crack-smoking mayor of Toronto) is similar to what newspapers and traditional media have long displayed. As Adam Liptak has explained, these older media companies financed many of the major free speech fights of the 20th century; they saw paying for litigation as part of their business model, and as a public duty.

But aside from Gawker, other digital media outlets have not been so brave, including well-financed Vox Media. Last month, Vox’s tech site The Verge meekly deleted a contract that formed the basis of a scoop about payments between Sony and Spotify. The only explanation the Verge gave is a note on its website that the item had been removed “at the request of the copyright owner” (i.e. Sony)—a flimsy reason given the newsworthiness of the contract and the slim chance that Sony would actually sue, let alone prevail, in court.

“The New York Times would have told a lawyer telling them to take [the contract] down to fly a kite, and wouldn’t have done so,” said George Freeman, a former lawyer at the Times who now works at the Media Law Resource Center. Freeman qualified his statement, though, by saying that facts in legal cases are often more complicated than they seem at first blush.

But in Vox’s case, there appear to be no mitigating facts to explain why it took down the contract, and neither the company nor its lawyer Lauren Fisher responded to repeated requests for comment. In contrast, one imagines that Denton, who is standing up to Hulk Hogan over $100 million, would have rebuffed Sony’s attempt to use questionable copyright claims to influence editorial decisions.

Meanwhile, other big digital newcomers to the media scene, including BuzzFeed and Business Insider, have also been slow to take up the public interest banner long carried by the likes of the New York Times and the Press-Enterprise (a small California paper that, as Liptak explained, took two free speech cases all the way to the Supreme Court in the 1980s).

All of this is why Gawker’s fight with Hulk Hogan, despite the sleazy subject matter, should attract the support of media companies and free speech advocates everywhere. Gawker is the only one among a new generation of media companies that appears ready to stand its ground in the face of legal threats; if it loses, there may soon be no one else who is willing to do so.

Correction: an earlier version of this story referred to the ex-wife of Hogan’s friend. They were married at the time, so the phrase has been changed to “then-wife.”

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