Hogan and Trump Have Something in Common: Not What You Think

It’s their lawyer, Charles Harder. He represented the soon-to-be First Lady, Melania Trump (a title, let us remember, that custom first bestowed on Eleanor Roosevelt, FDR’s wife: o tempora o mores) in a number of cases, including one against the Daily Mail, of London. The case is still pending, but the newspaper withdrew a story that claimed she had worked as an escort. Her husband, president-elect Donald Trump, who once had a cameo role in a softcore pornographic movie, is famously thin-skinned, so surely they keep Harder’s phone number at hand.

And the reason is this. Harder won an unlikely case against Gawker for professional wrestler Hulk Hogan. Gawker published a sex-tape showing Hogan in bed with a friend’s wife, and it refused to take it down after Hogan’s repeated requests. A jury awarded damages to Hogan totaling $140 million, which resulted in the bankruptcy and shutdown of Gawker, as well as the personal bankruptcy of the website’s founder, Nick Denton.

Now, no tears were shed over the shutdown of such an outlet. But, as Jeffrey Toobin shows in an article in the New Yorker, the legal ramifications of the case do matter for First Amendment cases in the years to come. Indeed, Gawker’s team of attorneys tried to shield their client against that most powerful constitutional right. Yet Harder had the brilliance to bring it to the realm of privacy rights and played, deftly yet honestly, to the feelings of the jurors.

Never mind that the nonchalance (not to call it insolence) of the defendants undid any defense their lawyers could have articulated. But until now, U.S. judges demurred and dismissed First Amendment cases because “malice” had to be demonstrated. In the era of the omnipresent Internet, in which reputations can be badly damaged in a matter of seconds, it may very well happen that some cracks could show in the First Amendment that so firmly had passed the test of time. Should legal precedents change dramatically, we better hope that Saturday Night Live will be served by a team of top lawyers in the coming Trump years.

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