This trial presents one of the most difficult First Amendment issues of our time. Gawker, a website that specialized in disclosing embarrassing information about celebrities, placed on its website a sex tape of Hulk Hogan, whose encounter with a woman was secretly filmed by her husband. The framers of the First Amendment certainly did not have in mind protecting the publication of a sex tape made without the consent of one of the participants. Indeed, Justice Louis Brandeis, a staunch defender of the First Amendment, made his name as a young lawyer by writing an influential law review article about the need to protect the privacy of individuals against the excesses of an exploitive press. The result was a verdict in the amount of $115 million dollars, effectively putting Gawker out of business.
The specific First Amendment issues presented in the Hulk Hogan case seem destined to continually resurface in different contexts, as many states enact anti-revenge porn statutes or criminalize the publication of sex tapes without the consent of one of the participants. This difficult constitutional issue has yet to be tested in the Supreme Court. When it is, they will have to strike the appropriate balance between competing constitutional issues.