Article by Mary-Rose Papandrea
The $140 million verdict against Gawker for its publication of a portion of the Hulk Hogan sex tape has raised myriad questions about the future of media litigation. Some dismiss the verdict in Bollea v. Gawker as a “one-off” case involving the publication of scandalous material by a disreputable publication engaged in “quasi-journalism.” Other critics attack what they see as “press absolutism,” the insistence on treating all members of the press the same, because, the contention goes, it fails to distinguish among different types of publications and “ties the hands of the courts to recognize real-world differences in the benefits and harms at stake and to structure the rights for maximum public benefits.” Still others argue that concerns about the Gawker case are overblown, given that the United States Supreme Court has historically issued very press-friendly decisions, and the Roberts Court shows few signs of rolling back those protections.
While it is certainly true that the result of the Gawker verdict does not portend the end of press freedom in the United States, it does reveal a series of very real challenges for all media defendants. This Article examines these challenges in the context of an environment of press hostility and distrust, with a focus on third-party financing, the shifting incentives for media plaintiffs and defendants arising out of developments in procedural and substantive law, and the specific challenges that online publications must confront when facing defamation and privacy claims. The Article offers some suggestions for changes in procedural and substantive law to help even the playing field for the press and provide adequate protection for the freedom of speech.
About the Author
Mary-Rose Papandrea: Judge John J. Parker Distinguished Professor of Law & Associate Dean for Academic Affairs, University of North Carolina School of Law.
93 Tul. L. Rev. 1105 (2019)