Gawker ‘Gay Outing’ Controversy Raises Legal Questions As Hulk Hogan Sex Tape Trial Approaches

How do you un-wreck someone’s life? Nick Denton may be asking himself that question Friday after Gawker Media’s decision to remove a highly controversial article that apparently outed a high-ranking Condé Nast executive -- and did the bidding of an unscrupulous male escort seemingly out for revenge.

In explaining the decision to take down the piece, Denton, Gawker Media’s founder, cited a changing media landscape in which truthfulness alone can no longer justify a story’s publication. “I believe this public mood reflects a growing recognition that we all have secrets, and they are not all equally worthy of exposure,” he wrote in a blog post Friday. “I can’t defend yesterday’s story as I can our coverage of Bill O’Reilly, Hillary Clinton or Hulk Hogan.”

But the information that story contained is already out there, plastered across the Internet. The damage is already done, and media-law experts say exposing a person’s sexual orientation just because that person happens to work at a major news organization may not be sufficient were the subject of the article to pursue legal action.

“The law looks to who the ‘outed’ individual is,” said Amy Gajda, a law professor at Tulane University and author of “The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press.” “If that individual is, in fact, a public figure, then information about that public figure can be reported by media without liability. But what’s particularly interesting is this individual may not be an all-purpose public figure in the sense that Kim Kardashian is.”

All of which raises the question: Did Gawker just make things worse for itself by taking down the post?

“One of the things you have to look at is damages,” said David Lat, a lawyer and managing editor of Above the Law. “If you take a story off of the Web, you’re certainly minimizing the damages the plaintiff would claim. And someone would be much less likely to sue.”

At the same time, Lat said, the article in question has been so widely discussed and picked up by other media, the information will be impossible to contain. “You can’t put that horse back in the barn,” he said. “It’s not like we’re in Europe and we have this right to be forgotten.”

High Stakes

The controversy, of course, comes at a precarious time for Gawker. The company is in the middle of a high-stakes legal battle with Hulk Hogan over a video clip featuring Hogan having sex with someone else’s wife. Hogan is suing for $100 million, and Gawker’s founder, Nick Denton, has said the company would be ruined financially if courts side with the wrestling icon.

With so much hanging in the balance, could the latest dustup hurt Gawker’s case by demonstrating a history of ethical breaches? Fortunately for Gawker, courts tend to look at these matters on a case-by-case basis.

“If you bring out all this information about past history, then the concern would be that the people on the jury had been tainted,” said Sandy Davidson, who teaches communications law at the Missouri School of Journalism. “In a civil case like this, I would imagine that the court would want to isolate and stick to the facts at hand.”

The Hogan case, which is being tried in Florida, was recently postponed on a technicality and will not resume until October at the earliest. Davidson said there will likely be a painstaking process to select jurors who are unfamiliar with Gawker or have no opinion of what it does. “As hard as it might be for the media to imagine, that won’t be that hard,” she said.

Meanwhile, Denton has been on a media tour of sorts touting Gawker Media as a 21st-century champion of the First Amendment. “If it’s true, you publish,” as one Gawker staffer tweeted.

But not everyone sees the argument as so black and white. Gajda, who has been following the Hogan case from the beginning, said Hogan has a good chance of winning. She said even celebrities have some expectation of privacy, particularly where sex is concerned.

“There’s a difference between reporting on Hulk Hogan’s sex life and literally publishing a sex tape featuring Hulk Hogan, in the nude, acting in a sexual way with a woman on the bed, surreptitiously recorded,” she said. “Gawker’s claim that it can publish a sex tape would mean that anyone who talks about sex in some way then opens up for public consumption every last detail of his or her sex life. And that’s just not the way that courts would look at that.”

Universal Censure

Thursday’s controversial article, by Gawker.com staff writer Jordan Sargent, featured text messages and photos allegedly sent between Condé Nast’s chief financial officer and an unidentified “gay porn star,” who was hoping the CFO would use his influence to get him out of some legal trouble. When he refused, the porn star, whose identity Gawker chose to protect, went to the media company with all the salacious details.

The Condé Nast executive, who is married with three children, denied the whole thing.

Reaction to the piece on social media was swift and decisive, particularly from within the established media industry that Gawker has labored so fiercely over the years to tear down. Few issues will draw overwhelming consensus from Twitter’s diverse community of journalists, but this one did, with high-profile media types using words like “reprehensible,” “malicious,” “plain sick” and, as Re/code’s Kara Swisher put it, “An appalling act of gay shaming disguised as a story.”

Media Out Of Control

Additional legal questions abound over Gawker’s latest controversy. The legal standard for who is -- and isn’t -- a public figure tends to be judged on a sliding scale. In general, the more famous someone is, the more the media can get away with scrutinizing their lives, and chances are, few people outside of media circles had heard of the CFO in question before Thursday.

According to Gajda, courts are less sympathetic toward invasive media outlets than they used to be, and she said they are deciding privacy cases against media more often. That could spell trouble for Gawker in the end.

“It used to be that if media reported truthful information, that information would be protected,” she said. “It’s not happening that way anymore, even if it’s truthful information, because courts have suggested that media is out of control. Something needs to be done to protect the privacy of the individual over push-the-envelope publishers who decide to invade individual privacy.”

Christopher Zara is a senior writer who covers media and culture. News tips? Email me. Follow me on Twitter @christopherzara.