Recently in a Nevada courtroom, the Mixed Martial Artist War Machine argued that a woman accusing him of rape in fact consented, due to her work in porn. The job gave her the "desire, the preference, the acceptability towards a particular form of sex activities that were outside of the norm," his lawyer said.
Recently in a Florida courtroom, Gawker argued that it did not invade a pro-wrestler’s privacy by publishing a secretly-filmed sex tape because of the wrestler’s history of making a spectacle of his own sex life.
“You didn’t think that was invasive of your privacy, right?” Gawker lawyer Michael Sullivan asked Hulk Hogan, real name Terry Bollea, after playing a 2006 radio clip in which Bollea discussed, among other things, having a “10-inch cock.”
In Nevada, the judge quickly shut down the notion that the victim’s porn career was relevant. In Florida, Terry Bollea’s sexual past is at the crux of Gawker’s case. Bollea is suing Gawker for $100 million for invading his privacy, among other claims. If Gawker can convince a jury that the video was newsworthy, its right to free speech will trump Bollea’s right to privacy.
Thus far, Hulk Hogan vs. Gawker has been framed mostly as a fight over the limits of said speech. But it’s also an instance of our culture’s twisted relationship to consent gone viral. This isn’t new—except that the person wounded is a man.
Bollea’s status as a public figure is legally relevant. Can we say the same for his history of stoking public interest in his marriage, love affairs, and yes, penis size? When Pamela Anderson sued distributors of her sex tape, a court ruled in 1998 that the actress’ status as a “sex symbol”—and history of appearing nude on screen—didn’t make a porn company's publication of her sex tape appropriate. In an earlier decision in the Hulk Hogan case, “a Florida appeals court seemed to be persuaded at least in part by Hulk Hogan’s earlier discussion of sexual conquests and his appearance on a reality TV series,” says Amy Gajda, a professor of law at Tulane. “I don’t think that the Pamela Anderson court would have been as persuaded by facts like those.”
Back in the nineties, feminists didn’t exactly rush to Anderson’s side, but they were certainly outraged by War Machine’s defense back in December. They should be also by Gawker’s. Voyeurism—a.k.a. watching someone in a sexual situation without his permission—is a form of sexual assault according to the National Institute of Justice, and sexual assault can happen to anyone, irrespective of his or her past or gender. Unlike most types of sexual assault, though, voyeurism is something 2.5 million people did without lifting more than a finger in 2012, during the six months the video was live on Gawker’s site.
Non-consensual sex tapes, and their cousins, non-con nudes, are a phenomenon which mostly impacts women. In 2014, after 600 private iCloud accounts were hacked, nude photos of celebrities including Kate Upton, Kirsten Dunst, and Jennifer Lawrence spread over the internet. In Vanity Fair, Lawrence called it “disgusting” and “a sex crime.” When male celebrities’ nudes leak, meanwhile, they mostly laugh it off. “It wasn't as, like, bad as I thought it was going to be,” Justin Bieber told Ellen Degeneres after a naked paparazzi picture of him in Bora Bora appeared on the internet. His dad, Jeremy Bieber, tweeted: “@justinbieber what do you feed that thing. #proud daddy☺”
Terry Bollea, too, appeared to try a lighthearted approach when news of his sex tape broke. Asked by TMZ who the brunette was, he replied, “First of all there were several brunettes, OK?” (It was later revealed she was Heather Clem, the wife of Bollea’s best friend.) But in trial last week, Bollea insisted it wasn’t he who made the glib comments, but his persona, Hulk Hogan. "I was in character… I wasn't at home in my private house.” Hearing reports that his best friend, Bubba the Love Sponge Clem, had surreptitiously filmed him with plans to sell the tape, “my hands started shaking violently,” Bollea said. “I thought those people loved me."
In 2012, as it came to light that Bollea wasn’t in fact happy with the tape and was sending cease-and-desist letters, coverage remained gleeful. “The scandal has gotten as absurd as a Hulk Hogan haircut,” wrote The Daily Beast. “Gigantic slab of orange-tinted meat Hulk Hogan is devastated,” read the beginning of a New York Magazine lead. Compare these reactions to the ones in the wake of iCloud photo hacking: “This is about women being shamed, objectified, and treated like property,” wrote Vox. “The 'don't take naked pics if you don't want them online' argument is the 'she was wearing a short skirt' of the web. Ugh,” tweeted Lena Dunham. After a wave of furious articles, the New York Times published an explainer on “Why Leaked Nude Photos Are Another Frontier for Feminists.”
I’m not pointing out these double standards to criticize feminist anger over the iCloud hack (unlike some Men’s Rights bloggers who have written on the topic). The leaking and trading of nude photos on sites like Reddit and 4chan had a gendered subtext that wasn’t present in the dissemination of the Hulk Hogan video. As Roxane Gay wrote in the Guardian, the hack was “meant to remind women of their place…Your bared body can always be used to shame and humiliate you.” Still, when someone who isn’t a woman is sexually shamed, feminists shouldn’t ignore it. Outrage in the wake of the iCloud hack was productive. It was pushing editors and readers to reconsider victim blaming.
So why were 2.5 million Gawker readers happy to watch the Hulk Hogan video? In his deposition, Gawker founder Nick Denton argued that the story and video of Hogan were “humanizing,” depicting Bollea as a person rather than a celebrity. Bollea agreed that the video deflated his larger-than-life image: “I was completely humiliated,” he said. A non-con sex tape strips a celebrity of his clothes and his power, allowing you—the viewer with jizz-sticky hands—to have the last laugh.
Robert I. Simon, a clinical professor of psychiatry at Georgetown, has written about the psychological impact of Peeping Tom-style video voyeurism. “The victim is horrified, humiliated, mortified, and extremely fearful when discovering that she has been covertly videotaped undressing, naked or engaged in an intimate act,” he wrote in the Journal of Forensic Sciences. “Videotaping of an unsuspecting victim strikes at her core sense of safety and privacy… If the victim discovers that a number of individuals have viewed the covert taping, the psychological distress is often great.”
Asked in a deposition video if he could imagine a situation where a celebrity sex tape would not be newsworthy, A.J. Daulerio, the ex-Gawker editor who published the video of Bollea, responded, “If they were a child.” Under what age? “Four.” Gawker later released a statement clarifying that Daulerio’s comment was a joke: He had already answered that a sex tape of a child wouldn’t be newsworthy. The joke struck a nerve, however. The prospect of a world in which reporters—or anyone who fancies himself a reporter—completely disregard the sexual agency of subjects including minors is terrifying.
So, of course, is a world in which journalists would be forced to tiptoe around every sexual sensitivity, restricting their coverage to stories that hurt no one. As Amy Gajda writes in The First Amendment Bubble, courts especially in the 1970s and 1980s gave news organizations leeway to define newsworthiness themselves. Previously in the Gawker case, a federal court sided with the website, explaining that news could encompass any information distributed for "the purposes of education, amusement, or enlightenment.” However, such deferential judicial language is becoming less common as of late, Gajda argues. As media has become less ethically focused—as paparazzi feels freer to air revenge porn—courts are becoming more willing to place restrictions on publication despite the First Amendment.
Hopefully this won’t be the outcome of Hulk Hogan vs. Gawker. Ultimately, newsworthiness is up to the public as much as courts and juries. Much better than restricting free speech would be for us all to restrict our sex-tape viewing habits to people who know we’re watching—men or women. It’s as easy as a click.
Alice Hines is a freelance writer living in New York City.