Hulk Hogan, the Tape, and the First Amendment
Hulk Hogan of wrestling fame just won a $115 million settlement against the tabloid rag Gawker for publishing a surreptitiously taped sexual encounter between Hogan and his best friend’s wife. To make things even more tawdry, the best friend set up the encounter and then taped it without his wife’s knowledge or Hogan’s knowledge.
The magazine yapped and yawed to no avail about the First Amendment and its guarantee of freedom of the press. Even some conservatives I have read came out in defense of Gawker on constitutional grounds.
But they are certainly wrong and the jury was certainly right to punish Gawker for invasion of privacy, and should have punished the magazine for publishing pornography as well. The jury will be adding an award for punitive damages, and I’d suggest they tack on a big bunch for trashing public decency.
There is absolutely no First Amendment defense for pornography, none. The First Amendment protections for both speech and the press have to do with expressions of opinion, not the publication of depictions of people having sex in front of a camera.
The First Amendment was written at a time when our experience with the Crown and its efforts to ban speech and newspaper editorials that were critical of its behavior was still fresh. The Founders were determined that our fledgling nation would not repeat that wretched expression of tyranny.
Thus, in America, the federal government is prevented by the First Amendment from interfering in any way with the expression of political opinions in either speech or publication, whether by newspapers or bloggers or Tweeters. (Since every right in the Bill of Rights is an individual right, not a collective right, bloggers have exactly the same First Amendment rights the New York Times does.)
But the Founders were about protecting political speech, not porn. Pornography has no more protection under the Founders’ Constitution today than it did in 1791, judicial activism notwithstanding. Pornography can and should be made illegal tomorrow, and if it were, there would be no violence done to the Constitution whatsoever. And our cultural fabric would be strengthened in the process.
Not even laws against profanity and blasphemy in the first 13 states were touched by the First Amendment. If the Founders did not intend to legalize profanity and blasphemy by the First Amendment, they most certainly did not intend to legalize the public depiction of adultery and fornication either.
Since the First Amendment has never been amended, it means the same thing today as it meant when the Founders crafted it. Porn has no First Amendment protection under the Founders’ Constitution at all. Period.
One other thing. Hulk Hogan shares culpability for this mess by choosing to violate the 7th Commandment and its prohibition against adultery. No adultery, no tape. No adultery, no national embarrassment. No adultery, no national humiliation.
So a proper understanding and application of the First Amendment could have saved Gawker $115 million and counting. And a proper understanding of the Seventh Commandment could have saved Hulk Hogan from making a spectacle of himself.
The Bible and the Constitution – they work every time they’re tried.
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