privacy pornography slander
Katie Hill&#39;s loss to the Daily Mail (5/2021) vs. Hulk Hogan&#39;s win over Gawker (3/2016) - why the difference in outcome?
<p>Both Katie Hill and Hulk Hogan are public figures - both had private images involuntarily published.  Both cases were consensual relations.  However in Hill's case she violated job regulations having sexual relations with a subordinate, for which she resigned.</p>
<p>Hulk Hogan was <a href="https://en.m.wikipedia.org/wiki/Bollea_v._Gawker" rel="nofollow noreferrer">awarded $115 million</a> to be paid by Gawker.</p>
<p>Katie Hill was <a href="https://en.m.wikipedia.org/wiki/Katie_Hill_(politician)" rel="nofollow noreferrer">ordered to pay a total of $220,000 in legal fees</a> to the Daily Mail and RedState, journals who published the sexual pictures.</p>
<p>As a layman the cases don't look so different to me.  What are the legal reasons (claims, laws) resulting in the outcomes being so different?</p>
<hr />
<p>Here is a <a href="https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB602" rel="nofollow noreferrer">link to the relevant CA bill on revenge porn</a>, containing the exception mentioned by @StuartF in the comments.</p>
<blockquote>
<p>(c) (1) A person is not liable under this section in either of the following circumstances:<br />
...<br />
B) The material is any of the following:<br />
(i) A matter of legitimate public concern.<br />
(ii) A work of political or newsworthy value or similar work.<br />
(iii) Commentary, criticism, or disclosure that is otherwise protected by the California Constitution or the United States Constitution.</p>
</blockquote>
<hr />
<p>@IñakiViggers mention possibility of appeal.  I found this month old article (before the latest judgement which Hill lost) <a href="https://spectrumnews1.com/ca/la-east/politics/2021/05/07/katie-hill-on-revenge-porn-case---i-m-going-to-run-out-of-money-" rel="nofollow noreferrer">discussing the difficulty of appeal</a></p>
<blockquote>
<p>At the time, Hill’s lawyer indicated they would appeal the case to the appellate court. But USC Professor Michael Overing who specializes in censorship and First Amendment issues, defamation, legal communication and internet law, said the former congresswoman does not have many legal options left.<br />
“She’s got a tremendous uphill battle. This is one of the times where the first amendment is going to give real protection to any of the publications because it’s newsworthy,” Overing said. “The information is accurate; it’s truthful and we don’t have grounds to suppress it.”</p>
</blockquote>

<p>Generally speaking, in cases of defamation, there is a exception for information that is &quot;in the public interest&quot;, which does not necessarily mean information that the public wishes to know, but rather information the public needs to know in order to maintain the &quot;public good&quot;, such as there being an informed electorate.</p>
<p>At first glance, the difference in the public interest in the materially similar information in the two cases is starkly contrasting, simply because of the professions of the two plaintiffs, as well as their relationships with their &quot;recording partners&quot; (for lack of a better term).</p>
<p>In the first case, Terry Gene Bollea was victorious, as he was working as an entertainer, under the stagename &quot;Hulk Hogan&quot;, and his companion was the wife of a fellow entertainer. From the perspective of the public good, this is not worthwhile information.</p>
<p>In the second case, there are two reasons the reported information falls into the domain of the public interest. Firstly, Hill was a serving Federal Congressional Representative, so she is automatically a person of public interest.</p>
<p>Secondly, as noted, it violated the norms of her position, and lead to her investigation by the House Ethics Committee and her resignation. There is an intentionally large hole in US defamation law for governmental figures, and especially their wrongdoing.</p>
<p>Whether or not the report was politically motived or not, exposing the wrongdoing of government figures is one of the major reasons for freedom of the press; Benjamin Franklin himself got into legal trouble for doing similarly. As a result, US defamation law has much larger protections for news reports on governmental figures.</p>

<blockquote>
<p>the cases don't look so different to me. What are the legal reasons (claims, laws) resulting in the outcomes being so different?</p>
</blockquote>
<p>They certainly are quite different. One main issue underlying Hill's controversy is her &quot;<em>political hypocrisy given her role in Congress</em>&quot; (page 8 of <a href="https://assets.documentcloud.org/documents/20602884/hill-v-daily-mail-lacsc-dismissal.pdf" rel="nofollow noreferrer">ruling on the anti-SLAPP motion</a>). This is primarily in reference to the Hill's &quot;<em>tattoo similar to the symbols formerly used by white supremacists</em>&quot; (pp. 9, 10) despite that the same politician &quot;<em>had criticized a rival for an ad featuring a veteran who displayed a similar symbol on social media</em>&quot; (p. 8). By contrast, Hogan's controversy is unrelated to electoral/governmental matters and to incongruities that could disrupt his life or career once they are widely publicized.</p>
<p>An argument of disproportionate intrusion into Hill's privacy would have merit had her tattoo borne no resemblance to a highly controversial ideology, more so in the case of a politician. Her public criticism only made the incongruity more evident, which in turn can (and apparently did) cause among the public an impression of hypocrisy.</p>
<p>Another issue is Hill's alleged &quot;<em>sexual relationship with a paid campaign staff member</em>&quot; (p. 9) and the &quot;<em>alleged sexual liaisons that Plaintiff purportedly had with a young campaign aide and with an office staffer</em>&quot; (p. 5), whereas Hogan's affair does not appear to have involved positions/abuse of power, let alone one involving public office.</p>
<p>Lastly, the alleged evidence of &quot;<em>[Hill] using a then-illegal drug</em>&quot; (p. 5) is another showing of hypocrisy to the extent that it shows an either aspiring or actual legislator violating a statute enacted by the legislative branch of the government. See page 8 of the opinion:</p>
<blockquote>
<p>the Water Pipe Picture appears to show Plaintiff smoking marijuana,
which is illegal under federal law, and the Article explained that the
photo apparently was taken “before marijuana was legalized for
recreational consumption in California.”</p>
</blockquote>
<p>By contrast, even in a hypothetical scenario of Hogan violating statutory law, the stakes cannot be that high because he is not a former, current, or aspiring lawmaker.</p>

<p>From the judges opinion</p>
<blockquote>
<p>First Prong: Protected Activity</p>
<p>...</p>
<p>An anti-SLAPP motion requires the moving party to bear the initial burden of establishing a prima facie showing that the plaintiff’s cause of action arises from the defendant’s free speech or petition activity. (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 894.)</p>
<p>...</p>
<p>“[T]he constitutional guarantee [of free speech] has its fullest and most urgent application precisely to the conduct of campaigns for political office.” [Citation.] Indeed, “‘[t]he right to speak on political matters is the quintessential subject of our constitutional protections of the right of free speech. “Public discussion about the qualifications of those who hold or who wish to hold positions of public trust presents the strongest possible case for applications of the safeguards afforded by the First Amendment.”’” [Citation.] “The character and qualifications of a candidate for public office constitutes a ‘public issue or public interest’” for purposes of section 425.16. [Citation.]” (Collier, supra, 240 Cal.App.4th at 52.)</p>
<p>...</p>
<p>As held by the authorities above, “[t]he character and qualifications of a candidate for public office constitutes a ‘public issue or public interest’” for purposes of section 425.16. [Citation.]” (Collier, supra, 240 Cal.App.4th at 52.) Here, the statements about the intimate images spoke to Plaintiff’s character and qualifications for her position, as they allegedly depicted Plaintiff with a campaign staffer whom she was alleged to have had a sexual affair with. (Complaint ¶ 71, fn. 5.) Accordingly, the statements were a matter of ‘public issue or public interest.’</p>
<p>...</p>
<p>Based on the foregoing, the Court finds that Defendant has prevailed as to the first prong.</p>
</blockquote>
<blockquote>
<p>Second Prong: Probability of Success on the Merits</p>
<p>On the second prong of the analysis, courts employ a “summary-judgment-like” procedure, “accepting as true the evidence favorable to the plaintiff and evaluating the defendant’s evidence only to determine whether the defendant has defeated the plaintiff’s evidence as a matter of law.” (Gerbosi v. Gaims, Weil, West &amp; Epstein, LLP (2011) 193 Cal.App.4th 435, 444.)</p>
<p>...</p>
<p>The elements of a civil conspiracy are (1) the formation of a group of two or more persons who agreed to a common plan or design to commit a tortious act; (2) a wrongful act committed pursuant to the agreement; and (3) resulting damages. [Citation.]” (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 211–212.)</p>
<p>...</p>
<p>Defendant finally asserts that even if Plaintiff had not foreclosed her own claims by her Complaint allegations, Defendant has provided competent and admissible testimony that the photographs came to him by way of an anonymous email, that he has never met or communicated with Defendant Heslep, that he has never discussed the Photographs with Defendant Van Laar prior to her publication of her articles, and that he never distributed the photographs to anyone. (Messina Decl. ¶ 2–6.)</p>
<p>The Court finds that Plaintiff has failed to carry her burden establishing a probability of success on the merits as to her second cause of action for civil conspiracy to violate Civil Code section 1708.85 against Defendant. As noted above, Plaintiff is required to present facts which would, if proved at trial, support a judgment in Plaintiff’s favor. (Code of Civ. Proc., § 425.16(b); Shekhter, supra, 89 Cal.App.4th at 150-151.) “[P]laintiff must show both that the claim is legally sufficient and there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment. [Citations.] In making this assessment, the court must consider both the legal sufficiency of and evidentiary support for the pleaded claims, and must also examine whether there are any constitutional or nonconstitutional defenses to the pleaded claims and, if so, whether there is evidence to negate any such defenses. [Citation.]” (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 108.) As noted above, Plaintiff has failed to oppose the instant motion. Accordingly, Plaintiff has failed to submit any evidentiary support for her pleaded claims thereby failing to establish a probability of success on the merits.</p>
<p>Based on the foregoing, the Court finds that Defendant has prevailed as to the second prong and is thus a prevailing defendant for the purposes of determining whether he is entitled to attorney fees.</p>
</blockquote>
<p>The judge's opines that two prongs must be met for the anti-SLAPP to succeed.</p>
<p>The first prong is establishing that the speech fell under &quot;free speech or petition activity&quot;.  Case law is referenced to establish that &quot;[t]he character and qualifications of a candidate for public office constitutes a ‘public issue or public interest’&quot;.  Notably, congressional law was not quoted, only case law.</p>
<p>The second prong concerns Hill's claim of revenge pornography - here expressed as a conspiracy to harm.  What is interesting here is the opinion that if Hill had produced evidence of such conspiracy, the anti-SLAPP would have failed.  However, no such evidence was submitted.  (Notably, even if the anti-SLAPP had failed, Hill could still have lost her case).</p>
<h5>Contrasting with the &quot;Hulk Hogan&quot; case</h5>
<p>Quoting from wikipedia -</p>
<blockquote>
<p>During the trial, Gawker argued that Bollea made his sex life a public matter, although on cross-examination, when asked by Bollea's lawyer whether a depiction of his genitalia had any &quot;news value,&quot; former Gawker editor AJ Daulerio responded &quot;no&quot;.</p>
</blockquote>
<p>Not going into great depth, but it seems likely the jury was persuaded that it was not a matter of public interest.</p>
<p>Lets perform a thought experiment: Suppose the activity recorded had been holding hands, a peck on the cheek, or even a clothed full body embrace with a deep mouth kiss.  I think Gawker would not have lost under those circumstances - the content being pretty normal for tabloids to publish when they can get it - provided it is for reader entertainment, it is true, and it is not a conspiracy to damage the subject or a result of blackmail.  The evident difference for Gawker was the pornography - that's my theory anyway.</p>
