Chilling? Or calming?

I was reading an article in the Washington Post on Tuesday about the Hulk Hogan-Gawker trial, and the (apparently) surprising outcome of it.  The outcome of the trial was a finding for Hogan and an award of $110 million to him for damages.

The article mentioned the “chilling” effect this outcome would have on free press.  I immediately focused on the term used. Chilling.  The term carries quite a negative connotation.  Wikipedia defines it as “In a legal context, a chilling effect is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction”.  Others define it as an outcome that provokes fear or terror.  That somehow this verdict would be an inhibiting, fearful outcome that would greatly upset the apple cart of free speech.

But was it chilling, or just calming?  Perhaps we need to rethink some aspects of free speech.  Why does a public figure forfeit all rights to privacy, allowing any press to publish any detail or aspect of their life? What aspect of a public figure should be open to discourse, and what part shouldn’t be because it is not relevant or because it violates a natural norm? What IS a public figure, anyone who has become known to someone else?  Is the Baltimore mother (from the riots) a public figure merely because she was caught on film? Is anyone who blogs, writes a letter to the editor, or posts a Yelp review a public figure?  It is a topic desperately in need of discussion and limitation.

There are other questions that need to be answered at the same time.  What is the press?  Do we know  anymore, with the explosion of web-based writers, bloggers, and publications? Is anyone who calls themselves the press really that, based only on self-identification? There hasn’t been a serious, focused evaluation of how the traditionally protected rights of print and speech should be applied to an internet where anybody can publish anything at anytime and in total anonymity.

The issue of free speech goes beyond Hogan vs. Gawker, which is at least a close proximity of a traditional press relationship between an acknowledged public figure and a mass media outlet.  How does free speech apply to revenge porn, where the victim is not “public” until outed, and the press is often merely a disgruntled, anonymous ex?  How does it apply, or should it apply, to trolls who victimize the simple, silly, or stupid of individuals and turn the full fury of anonymous hatred against them in cases like the one tweet about Africa and aids, or the author who tried to change the term military brat, or a beauty contestant who made a pressure-laden goof?

At what point is there a responsibility that attends the right of free speech?  We’ve always had some limits on it — yelling fire in a crowded theater, typically — and there were days where slander and libel had actual meaning and teeth.  Speech was generally attributable; now anonymity exists at the stroke of a key, allowing a perpetrator to get off scot-free.   Do we really want free speech to allow malicious, intentionally fallacious, damaging statements and efforts to exist with no boundaries?

Perhaps this case is not so much a chilling, but a needed calming, a breathing period.  Perhaps it will give us a chance to evaluate where as a society we want to go with speech, privacy, and press. Perhaps we will realize that not everything should be published, not everything should be protected, not every boundary violated. Perhaps we will realize that totally unbridled irresponsibility is a greater threat to free speech that normative boundaries are.

I hope we realize it, and start to bring some of this to heel.



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