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Neither editor worked on this piece.Hulk Hogan, whose legal name is Terry Bollea, is in a $100 million legal battle with Gawker over his privacy after a portion of a sex tape was published without his permission. We may someday get to find out whether such privacies can be kept off the Internet as well.ĭisclosure: Two Slate editors have spouses involved in this case. “Today,” the court wrote, “it is no exaggeration to say that many of the more than 90 percent of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives-from the mundane to the intimate.” The justices voted unanimously to keep those privacies out of police hands without a warrant. The search-and-seizure case didn’t involve a publisher, but did involve police interception of photographs and video from the phones. But as late as 2014, the court recognized and protected “the privacies of life” contained in cellphones.

It’s true that the justices have changed in the past 15 years (of the five who would seem to lean toward privacy on the issue of sex tapes in Bartnicki, only two, Stephen Breyer and Clarence Thomas, remain on the court) and that times have changed as well.

That’s why it’s possible that the Supreme Court would agree with the jurors in the Hulk Hogan trial, and why publishers should not take their ability to determine newsworthiness for granted. Although Bartnicki upheld a speech claim, two concurring justices took care to note, in reference to an earlier case involving celebrity Pamela Anderson, that the “broadcast of videotape recording of sexual relations between famous actress and rock star not a matter of legitimate public concern,” suggesting that the tape was a “truly private matter.” “he Constitution,” the justices wrote at the end of the concurrence, “permits legislatures to respond flexibly to the challenges future technology may pose to the individual’s interest in basic personal privacy.” In citing a case involving an actress known in part for her sexuality and nude photographs, the two concurring justices lay some groundwork for future justices to reject Gawker’s argument that Hulk Hogan’s openness about his sex life made the sex tape newsworthy. If it ever finds its way to the Supreme Court, it will give the justices an opportunity to at least begin to draw that press-privacy line.Īnd, according to the Supreme Court’s own voting history, a sex tape might well be ruled private. That’s why the case involving Hulk Hogan and Gawker is an important one.

But the Restatement also suggests that newsworthy information stops at “morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern.” Non-newsworthy information in their estimation would include the revelation of humiliating illnesses, private home life, and income tax returns.Įven so, the justices quoted an earlier, limiting opinion: “We continue to believe that the sensitivity and significance of the interests presented in clashes between First Amendment and privacy rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.” In doing so, the justices quite literally refused to draw the line between press freedom and privacy. That’s an expansive definition, one that is potentially troubling in an Internet age when the distance between a journalist and a person with a social media account is shrinking-and when some private individuals publish deplorable stuff that appeals to many. The Restatement of Torts, a scholarly work written in the 1970s and considered by many courts to be persuasive authority in privacy cases, suggests that news is a category that includes crimes, arrests, drug deaths, rare diseases, wild animal escapes, children giving birth, “and many other similar matters of genuine, even if more or less deplorable, popular appeal.” Newsworthiness is, of course, in the eye of the beholder.