Samir’s Selection 03/24/2016 (p.m.)
Trumpism After Trump >>>
There is now no possibility that the Republican Party will survive its rendezvous with Donald Trump unbroken.
So a Trumpian schism probably wouldn’t lead to a full realignment, a real re-sorting of the parties. Instead it would likely just create a lasting civil war within American conservatism, forging two provisional mini-parties — one more nationalist and populist, concentrated in the Rust Belt and the South, the other more like the Goldwater-to-Reagan G.O.P, concentrated in the high plains and Mountain West — whose constant warfare would deliver the presidency to the Democrats time and time again.
The lesson here for conservatives and Republicans is sobering. A rift is upon their party, and it won’t be healed before November. But if the party can’t be united under Trump, both his fans and his foes will probably face a stark choice in the aftermath: Rejoin or die.
The Stakes in Hulk Hogan’s Gawker Lawsuit >>>
Violations of privacy, like other forms of personal injury, are generally an issue of state law. But because state courts are not permitted to impose penalties that would violate the U.S. Constitution, the First Amendment protects the publication of true facts about public figures, unless such facts would be highly offensive to a reasonable person and are not of legitimate concern to the public. In this case, there was evidence both that Hogan was accustomed to publicly discussing details of his sex life, and that he himself considered his sex life, and the existence of the videotape, if not its contents, of legitimate public interest. Many established news organizations, including this one (I am The New Yorker’s general counsel), would not publish a video of this kind, but it is important to separate what might be considered tasteless or even mean-spirited conduct from conduct that violates the law…
But was the video newsworthy? Hogan’s lawyers argued that it had no news value and that Gawker posted it only to generate traffic to its site. Some of the testimony by Gawker witnesses did little to dispel that argument. Denton was cross-examined about his statement to the Washington Post that Gawker doesn’t “seek to do good.” The editor A. J. Daulerio testified that there was little news value in images of Hogan’s penis. Even worse, Hogan’s lawyers played a videotaped deposition in which Daulerio was asked what kind of sex tapes he wouldn’t publish. He stated that he would draw the line at children “under four” years old. The jury reportedly gasped. (Daulerio testified that he had been joking.) Then there was the language that accompanied the video in Gawker’s post. “Because the internet has made it easier for all of us to be shameless voyeurs and deviants,” it declared, “we love to watch famous people have sex.”
These facts, along with Hogan’s court testimony, were enough for the jury to find that the news value did not outweigh Hogan’s privacy rights. But, as Gawker’s lawyer argued in his closing statement (The New Yorker is represented by the same firm that represents Gawker), the First Amendment must take a broad view of “newsworthiness” to have any effect. It is not the obvious stories or popular speech but rather the unpopular or shocking speech that requires constitutional protection. And while protecting the right to publish a celebrity sex tape may not be as significant as protecting the right to burn the American flag (in the example offered by Gawker’s lawyer), Hogan’s own voluntary public discussion of his sex life appears to be an acknowledgment that it was at least of some interest to the public, in both Hogan’s estimation and that of news outlets that interviewed him. “Newsworthy” is not the same as high-minded, and while many publications would not choose to publish a sex tape, the term can conceivably protect one.
Did Gawker have to show the video, though? Hogan’s lawyers suggested that a written description would have been sufficient and protected. Other outlets, which also received the tape but declined to publish it, apparently agreed with them. But there are a couple of concerns with this argument. First, judicial edicts regarding whether video is appropriate in a particular case may encroach on editorial judgment. (Would eight seconds have been O.K.? What about three? What if they were blurred, but you could still tell what was going on?) Second, on the Internet, at least, video is becoming the community standard of proof. The power of video to capture attention and motivate people, as with the recent videos of police shootings of unarmed citizens, or violence at Donald Trump rallies, or domestic violence in hotel elevators (as Nicholas Schmidle reported in this magazine), is beyond dispute.
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