Both sides in this case were utterly contemptible. I would have found that Gawker invaded Hogan's privacy and awarded Hogan one dollar in damages, leaving everyone unhappy but the lawyers.
Invasion of privacy, despite its questionable origins, is now generally recognized as a valid tort and outside of the protections of the First Amendment. No new precedent is being set here.
I don't think Bollea is a particularly good person, but I'm not clear on how his conduct in this controversy was "contemptible".
For the 1A concern here, consider the Anthony Weiner case, in which indisputably private photos of Weiner were also published. I don't like that they were (I think he could have been just as effectively ejected from public life with good writing) but it's concerning to think that he'd have a tort hammer to swing to keep the story from coming out at all.
I agree that the Anthony Weiner case is similar, but there's also a very different argument in play with publishing those photos.
A public official exposed behaving inapropriately or hypocritically is much more obviously a matter of public interest -- to the people who elected him based on a different representation of values -- than exposing the inner workings of an entertainer's sex life. Gawker tried to stake their claim on the public interest basis in this case and lost. In my opinion, that decision was correct.
I also wish that sex scandals didn't have power over political careers because of the perverse incentives that it creates for politicians to behave in certain ways.
Weiner also could have sued over his photos, and possibly should have been able to win his case. To me, if he does the job that he's elected to do then it shouldn't matter what he does on his own time. With the caveats that those actions are within the law, and also that I did not and would not ever vote for him.
Even if Weiner had sued it wouldn't have changed the course of his scandal, based on what we've seen in other cases. Look how long it has taken for Hogan's case to be adjudicated, and it has hardly wiped the memory of his sex tape from the public consciousness.
As you noted, good writing should be sufficient in a case like Weiner's to eject him from office. Similarly, in a case like Bollea's, good writing should be sufficient to get to the public all that is newsworthy.
That good writing can mention that the author has seen the photos or videos, and describe them as necessary to support the story.
Of course, if the photos and videos are not published the subject might accuse the publication of lying, but the original publication can show the photos or videos to other publications who can also write stories about them.
In a case like Weiner's, I don't think the public would believe him if it came down to several major newspapers all reporting that they had seen the photos first hand, versus Weiner saying that they are all lying.
If the subject tries to sue a publication over their written story, the photos or videos will be evidence for the defense, and the likelihood of them getting out to the public goes way up. That should provide quite a bit of discouragement of intimidation lawsuits.
I would think that in a case like Weiner's if Weiner says the writer is lying, send him an offical warning that the publication will release the audiovisual proof if he insists. Hilarity ensues.
So... are you saying that if a celebrity talks openly, even boastfully, about their sex life, then it is free speech to publish a sex tape that was recorded without their consent?
In the Wiener case he was sending the pictures of his crotch via SMS. There's no expectation of privacy from content that you've shared willingly, no matter how perverted the content.
if someone decides to sms bank account info to their spouse, is it then appropriate that their account info is published, because they have no expectation of privacy?
He didn't send it to his spouse, he sent it to non-spouse woman he was flirting with.
It's not the channel of SMS that makes it fair game, it's that he explicitly shared it with a third person. It could have been a telegraph message, a voicemail, or a hand drawn picture. The point is that he publicly shared it.
Invasion of privacy, despite its questionable origins, is now generally recognized as a valid tort and outside of the protections of the First Amendment. No new precedent is being set here.