Dallas Appellate Attorney Chad Ruback gives insight on Hulk Hogan’s $100M invasion of privacy lawsuit against media website Gawker, where the key argument is First Amendment protection. Generally, First Amendment issues are decided by a judge on summary judgment without a case ever going to trial. This case is unusual in that the trial court’s judgment will turn in large part on the jury’s resolution of the facts of the case. Courts have almost always been very liberal in applying the First Amendment. As long as a communication does not put someone in immediate physical danger (such as shouting “fire” in a crowded theater), courts have treated the First Amendment as a nearly iron-clad defense. In this case, Hogan is arguing for a rarely-applied limitation to the First Amendment’s protections. Specifically, Hogan is arguing that the communication at issue constitutes such a conscious-shocking invasion of privacy that his privacy rights should trump Gawker’s First Amendment rights. While Hogan might be able to persuade the jury – and even the trial court judge – to limit Gawker’s First Amendment rights on this basis, it is highly unlikely that an appellate court would uphold a judgment in favor of Hogan. That being said, a judgment in Hogan’s favor could have chilling effects on media coverage of embarrassing aspects of celebrities’ lives. Hogan’s lawsuit against Gawker has already been in litigation for several years, and a Hogan win at trial would likely mean several more years of litigation in the appellate courts. Even if Gawker wins on appeal, the legal fees for Gawker’s ultimate vindication will have been astronomical. All but the largest media outlets would have difficultly footing lawyers’ bills of this magnitude. That, of course, would limit future coverage of celebrities’ personal lives by gossipy media such as Gawker. On the other hand, a trial court judgment in Gawker’s favor would likely embolden gossip-focused media outlets to go to even more extreme lengths to acquire and distribute highly-sensitive videos and photos of celebrities.