“When Truth Is Not Enough,” by Jeffrey Toobin. The New Yorker, 12/19 & 26/2016.
We shy away from news items about Hulk Hogan’s legal victory over the Gawker website. Everyone and everything about the case is disgusting. Hulk Hogan is a steroid-charged, megalomaniacal professional wrestler whose sexual encounter with the wife of his best friend, “Bubba, the Love Sponge,” was videotaped by Bubba, himself. Before the decision forced them out of business, Gawker was a sleazy website that published such trash. Ugh! Who cares what any of them do?
But the legal procedure highlighted a change in the interpretation of the First Amendment, Freedom of Speech.
The general rule followed by the courts has always been that charges of libel had to be based on false statements. Truthful statements were protected by the First Amendment.
But that was in the age of print: newspapers and magazines. Today, Internet publishers can distribute revenge porn, medical records, and sex tapes—all truthful and accurate and all protected by Freedom of Speech—with just a few clicks. The jurors’ verdict showed we are having second thoughts about protecting harmful information, truthful or not, especially when the intent is clearly to embarrass and damage someone’s life. We are not, and should not be, free to say anything we want as long as it is truthful. The ease of spreading even truthful information so widely should be curtailed when its intent is to harm, or is wantonly oblivious of the harm it can cause.
The posting of 7/6/2013 on William Penn pointed out that he was involved in a case that established the legal principle that juries are above the law. “The law may be perfectly clear, guilt proved beyond doubt, but the jury can still find the defendant not guilty simply because they do not agree with the law.”