William_T._Bianco,_David_T._Canon]_American_Polit

Freedom of speech, assembly, and the press 127

While it is extremely difficult to win a slander or libel case, Hulk Hogan’s 2016 case

against the website Gawker shows that it is not impossible. Hogan sued Gawker—

and won a $140 million verdict—for posting a sex tape of him with his friend’s wife,

Heather Clem, that had been recorded without his knowledge. He ultimately settled

with Gawker for $31 million, and the website declared bankruptcy because of the

case. The case has broader political implications because it shows that public figures

may be able to win damages even when the defamatory content is true.^89 Melania

Trump also reached a settlement with the Daily Mail, a British tabloid, for articles that

the outlet published in 2016 falsely claiming that she had once worked for an escort

service (the paper printed a retraction, apologized, and paid damages).^90 President

Trump has vowed to “open up our libel laws” to deter what he claimed were false “fake

news” stories. Libel law, however, is controlled by the states, subject to limits from the

U.S. Supreme Court, so it is not something that the president can change.^91 Trump is

also facing a lawsuit in New York state court from “Apprentice” contestant Summer

Zervos, who alleges that he groped her. Her suit claims that Trump slandered her by

calling her a liar. In June 2018, a New York state judge ruled that Trump has to testify

and that his deposition could last up to seven hours.

Hulk Hogan testifies in court against

Gawker Media, which he sued on

charges of defamation and emotional

distress. In a rare victory against the

press, Hogan won his case.

Commercial Speech Commercial speech, which mostly refers to advertising, has

evolved from having almost no protection under the First Amendment to enjoying

quite strong protection. One early case involved a business owner who distributed

leaflets to advertise rides on his submarine, which was docked in New York City.

Under city ordinances, leafleting was permitted only if it was devoted to “information

or a public protest,” but not for a commercial purpose. The plaintiff changed the leaflet

to have his advertisement on one side and a statement protesting a city policy on the

other side (clever guy!). He was arrested anyway, and the Supreme Court upheld his

conviction, saying that the city council had the right to regulate the distribution of

leaflets.^92

The Court became much more sympathetic to commercial speech in the 1970s

when it struck down a law against advertising prescription drug prices and a law

commercial speech

Public expression with the aim

of making a profit. It has received

greater protection under the First

Amendment in recent years but

remains less protected than political

speech.

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