Sex, Lawyers, and Journalists: Not Something to Joke About

By Jack Limpert

Here’s a good New Yorker piece, by the general counsel for the New Yorker, on how the $140 million verdict in the Hulk Hogan-Gawker invasion of privacy case “can pose an existential risk to a media company.” The lawyer, Fabio Bertoni, says, “The publication of a videotape of consensual sex between adults is not the most appealing place to plant a First Amendment flag. But it is worth considering the possible effects on publishers if a judgment of this magnitude is allowed to stand.”

In a post yesterday about what it’s like for a journalist to become part of a lawsuit, I said:

Ever been deposed? You get hours of advice from your lawyers. Here’s a sample of what your lawyer is likely to tell you: Listen to the question and make sure you understand it before answering—if not, ask them to repeat the question. Answer narrowly and only answer the question asked—the deposition is not your chance to be storyteller and tell your version of what happened. Before answering any questions, always pause for a moment—this gives you a chance to think about your answer to make sure you aren’t saying anything wrong/stupid/problematic, and it gives your lawyer a chance to object to any question before you start to answer. If your lawyer raises an objection, stop and think before answering the question—you’ll probably still have to answer it but your lawyer might be trying to send you a signal. No head shakes or mumbling and speak slowly.

Back to a part of Bertoni’s piece that mentions Gawker editor A.J. Daulerio:

The editor A. J. Daulerio testified that there was little news value in images of Hogan’s penis. Even worse, Hogan’s lawyers played a videotaped deposition in which Daulerio was asked what kind of sex tapes he wouldn’t publish. He stated that he would draw the line at children “under four” years old. The jury reportedly gasped. (Daulerio testified that he had been joking.)

If Daulerio thought it was okay to joke in a deposition about sex tapes and children, Gawker’s lawyers apparently didn’t brief him very thoroughly on how to behave under questioning by Hulk Hogan’s lawyers.

Who are those apparently maladroit Gawker lawyers? Toward the end of today’s piece, Bertoni says in parentheses: “The New Yorker is represented by the same firm that represents Gawker.”





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