Is Hulk Hogan’s sex tape newsworthy?

Editor’s Note: Danny Cevallos is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely his.

On Tuesday, Nick Denton, the founder of Gawker Media, gave testimony in the trial over the now-infamous Hulk Hogan sex tape.

Denton testified he didn’t even consider whether Terry Bollea (Hulk’s real name) would be hurt by putting the video online; after all, it’s newsworthy. Denton added: “I think celebrities have a smaller zone of privacy than private individuals.”

Denton’s testimony pretty much sums up this case. In fact, this entire lawsuit can be distilled into one issue: Whether the First Amendment prohibits holding a publisher liable for its speech depends in turn on whether that speech is of public or private concern. If a sex tape of Hulk Hogan is a matter of public concern – if it is “newsworthy” – then Gawker wins. If it’s a private concern, then victory goes to Hogan, or his private alter ego: Terry Bollea.

Gawker’s constitutional argument is buttressed by decades of court decisions protecting the media’s speech. Indeed, speech on matters of public concern is at the “heart of the First Amendment’s protection.” To the Supreme Court, the First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” That is because “speech concerning public affairs is more than self-expression; it is the essence of self-government.”

So, if sex tapes are considered “speech on public issues,” then, ironically, speech of the most lowbrow kind — porn — will occupy a space on what’s called the highest rung of First Amendment values. By the way, that’s hardly a criticism of porn. It’s just fact: To the courts, porn has always been a close call between being classified as protected speech or unprotected obscenity. It’s just that when you take a step back and consider the history of First Amendment jurisprudence, it’s unbelievable that the line of Supreme Court cases defending, say, the Pentagon Papers, are now being used to defend a professional wrestler’s sex tape.

So what’s Bollea’s argument? It’s simple: Sure, a sex tape is probably “speech,” constitutionally speaking. But not all speech is of equal First Amendment importance. In matters of “purely private significance,” First Amendment protections are not as rigorous as they are on matters of public interest. The notion is pretty straightforward: Restricting speech about purely private matters is not as constitutionally dangerous because there is no threat to debate of public issues or to a meaningful dialogue of ideas.

In other words, if a court limits speech by regulating the publication of a sex tape, that’s not tantamount to suppressing debate on the Senate floor about, say, the citizenship rights of persons born in U.S. territories. Nor will it negatively affect the public discourse on taxation, or fracking, or really anything that matters to the public at all.

Even Gawker’s founder conceded this important distinction on the stand: “I don’t think it’s newsworthy to do a story on a private individual,” Denton said. However, he insisted that Hogan is not a private individual. If Terry Bollea ultimately is deemed a purely private individual, then by Denton’s own words, the tape was not entitled to First Amendment protection.

And that’s pretty much it. The case turns on whether a sex tape is a matter of public concern, or purely private significance. And that determination is less about dusty tomes of law, and more about sociology. Specifically: What is the contemporary definition of “newsworthy”? Has it evolved over the years?

Are we in the decline of the Roman Empire when it comes to what qualifies as news? Or have technology, iPhone cameras, and the Internet only recently made available that which we were all always interested in? If Twitter or TMZ had been around in the days of Kennedy, would we have wanted to see a Marilyn Monroe sex tape?

Of course, to paraphrase the late Sen. Lloyd Bentsen, I know that Terry Bollea is no John F. Kennedy. That doesn’t change the fact that such a tape probably would have been newsworthy, even in the 1960s. Modern society is not innately more sinful than our grandparents; it’s just that our grandparents didn’t have access to as much sin. If my Grandpa Vito had had access to YouPorn back in the days of the Jitterbug, he wouldn’t have left the house. Can I prove that? Sure I can: He has access to it now, and he doesn’t leave the house.

This jury has to answer a question: Is sex — even videotaped sex — between consenting adults (OK, even though there’s some swinging behavior involved, too) always a private act? Or, can one’s celebrity override even this private event, such that uncensored images of that celebrity’s private parts are matters of public concern?

Even scarier: Maybe celebrity sex has always been a matter of public interest; we just didn’t have the technology to see it until now. And it’s only going to get less private from here.

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