Liberals Can’t Rally for Free Press and Ignore Privacy Rights

by Lanny Davis – 7/5/17

“It is the unwarranted invasion of individual privacy which is reprehended, and to be, so far as possible, prevented…. There are persons who may reasonable claim as a right, protection from the notoriety entailed by being made the victims of journalistic enterprise…”
— Samuel D. Warren, Louis D. Brandeis, December 15, 1890, Harvard Law Review

It is Fourth of July time. It is time to remember two of the most important constitutional protections that we need to worry about now more than ever: The First Amendment protection of the free press and the right to privacy, two issues that seem to, but actually do not, conflict with one another.

The excerpt from the law review article above was written 127 years ago by Professors Samuel Warren and Louis Brandeis Brandeis (the latter became one of the great Supreme Court justices). It provided the intellectual foundation for the “right to privacy” protection that, 75 years later, the U.S. Supreme Court found existed in our constitution implicitly but not explicitly.

In 1965, the U.S. Supreme Court in Griswold v. Connecticut struck down the state’s anti-contraception law on the grounds it violated the implicit “right to privacy” that was part of the “penumbra” of the due process and individual liberty rights contained in the 14th Amendment. Eight years later, in 1973, the constitutional right to privacy was cemented in the landmark case, Roe v. Wade, striking down a Texas law outlawing virtually all abortions, which the court found by a 7-2 vote infringed on the right of women to choose.

The right to privacy has become an important value for liberals in recent years. So how is it possible that with all reviews about the new documentary that focuses on the Hogan case, “Nobody Speak: Trials of the Free Press,” directed by the respected Brian Knappenberger (which I have not yet seen), the right to privacy issues involved in the case are virtually ignored?

Meanwhile, the reviews almost exclusively address concerns by liberals that the $140 million verdict against Gawker, which was put out of business due to the size of the verdict, and the way it was financed, represents a threat to First Amendment and press freedoms.

The documentary is largely about the case filed by Terry Jean Bollea, better known by his WWE name, “Hulk Hogan.” Gawker obtained a copy of Bollea having sex with a woman in his home and posted it online. Bollea won his huge verdict against Gawker because the jury believed this video published by Gawker, while literally “true,” was not about a “newsworthy” act by a public figure, but rather, a private act by a private person.

Thus, the jury voted that Gawker was not justified in violating Bollea’s privacy rights by posting the video online and embarrassing him for no “newsworthy” reason. They rejected the notion that Gawker was entitled to any First Amendment protections. Of course, the jury verdict can be debated. There may be too much subjectivity in the legal standards, such as what is “newsworthy” or of “public interest.”

Meanwhile, rather than engaging in a healthy and much-needed debate as to where First Amendment protections end and the right to privacy begins, liberal reviewers and commentators have focused a lot their attention on attacking Peter Thiel, the Silicon Valley entrepreneur (and early investor in Facebook and PayPal), who provided the financing to Bollea to allow him to sue and afford the costs of the litigation to protect his privacy rights. Without Thiel, Bollea could not have afforded to fight for his right to privacy — and win.

Thiel happens to be a conservative, libertarian and a Trump supporter. His politics are always mentioned in the reviews and critiques of his financing of Bollea’s case. If he were a liberal Democrat, would the criticisms of Thiel by these rights be the same? I doubt it. (I am, by the way, a liberal Democrat and proud of it).

I certainly worry about small news organizations on the right and left that are vulnerable to expensive defense costs when lawsuits are filed against them, even though what was published was true and accurate, but, so does Thiel.

He told the New York Times in an interview that he has donated money to the Committee to Protect Journalists and stated: “I refuse to believe that journalism means massive privacy violations. I think much more highly of journalists than that. It’s precisely because I respect journalists that I do not believe they are endangered by fighting back against Gawker [to protect privacy rights].”

Liberals should be able to care about protecting both First Amendment and media freedoms as well as privacy rights. It is hypocritical to support financial backing by wealthy liberals in cases we like but attack the motives of financiers in cases we don’t like.

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Lanny Davis is co-founder of both the Washington law firm Davis Goldberg Galper PLLC and Trident DMG, a strategic media firm specializing in crisis management. He served as special counsel to former President Clinton from 1996 to 1998 and is a regular columnist for The Hill newspaper. He is a friend of Peter Thiel.

To read the column on The Hill, click here.