Over the Line!

A little followup on my rambling, incoherent post on the Gawker/Thiel conflict.  Sarang commented in part:

A publication like Gawker routinely walks right up to the line, and oversteps it from time to time as an occupational hazard. If you think there is value to speech that's near but not over the line, I think you have to tolerate this occasional overstepping or penalize it modestly (or rarely). If the line is rigorously and consistently enforced with large penalties, the only safe course of action for a publication is to stay deep inside the allowed zone.

I guess I don't think this particular line is that hazy.  As I joked a little while ago, it would be difficult to fund a lawsuit against the New York Times for publishing a sex tape because the New York Times seldom publishes sex tapes.

Maybe a better way to put it is that publishing a sex tape is a provocative act that you don't do by accident.  So even if it is "close to the line" in a legal sense (it's probably okay to publish the fact of a sex tape that features a public figure, as opposed to the sex tape itself, and it might even be okay to publish blurred-out still frames), it's not "close to the line" in the sense that you might accidentally do it in the course of legitimate reporting.  You only do it if you already have lawyers on retainer and are basically itching for a fight.

Compare this fact pattern:  someone sends in a homemade video that yields valuable insight into a newsworthy event.  You want to release the video to the public on your website or television network.  But in the background is a popular song that happened to be playing on the radio at the time of the event.  Can you air the video without obtaining the consent of the owner of the copyright to that song?

I would be extremely loath to find in favor of the copyright holder here, basically for reasons that Sarang lays out.  People need to be able to report the news!  It's important to keep it as safe as possible, from a legal perspective, for the press to do its job.  A network can't, like, arrange for the copyrighted song to be playing when they shoot a video, but anything short of that should almost certainly be considered fair use.

But as I said, I don't think the same logic applies when you basically "opt in" to the legal fight.  The National Enquirer knows it's going to get sued.  That's its business model.  Gawker, at least in its sex-tape-publishing manifestation, is in that business too.  The First Amendment is very robust in this country and while there are more than enough ways for publications to get into legal trouble, it almost never happens when the journalists get the facts right.  I am unimpressed by claims that legitimate journalists are going to have trouble doing their jobs in the shadow of the Gawker case.  They should just, you know, not publish sex tapes.