US District Court Judge James Whittemore ruled for Gawker in December 2012, citing the Eleventh Circuit's recognition that "the balance between the First Amendment and copyright is preserved, in part, by the doctrine of fair use." After he lost at the federal level, Hogan added Gawker to a second suit he had previously filed in state court against Heather Clem and her husband Bubba. "f sex videos are ruled fair game, it could make the already aggressive paparazzi even worse," Kashmir Hill wrote in Fusion, quoting legal experts who fear that the incentives created by an atmosphere of no-holds-barred publication of "newsworthy" celebrity images might encourage lawbreaking of the " Fappening" variety. Though the images in the present case are blurry, taken with a black and white security camera from a distance, the excerpt Gawker published shows Hogan and Clem nude and engaging, unmistakably, in fellatio and intercourse. Such laws demonstrate that it is possible to criminalize revenge porn without damaging the First Amendment protections required by a free press. Eighteen states so far have passed revenge porn laws criminalizing the publication of sexually explicit images without the subject's consent. Revenge porn is a newly virulent crime, and as such has created areas of legal ambiguity requiring new jurisprudence. A ruling to the contrary could have serious implications for the free press the courts would have to break with precedent to reflect the new and growing awareness that technology in the modern age has made privacy both more dangerous to lose, and more difficult to come by. These considerations entitle the publisher to long-established First Amendment protections. Daulerio the company has maintained that the material is newsworthy and of public concern. The case is significant on several fronts, most notably in the First Amendment issues it raises: Gawker says it received the 30-minute tape from an anonymous source, and published a brief excerpt alongside the commentary of then-editor A.J.
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