Failure to acknowledge awkwardness just increases it, so before continuing on to a case dealing not only with a celebrity sex "scandal" but also a tape of the act giving rise to said scandal, let's take a moment to allow that yes, this is some slightly embarrassing subject matter for a long list of sundry reasons.
But regardless of context, if more people are becoming aware of the nuances of First Amendment law that can only be a good thing.
Which is why I was pleased to hear this Very Special Podcast edition of On the Media, featuring the host's conversation with Heather Dietrick, general counsel of Gawker Media which published an excerpt of this tape online. My favorite moment of the discussion was when the host (probably serving as surrogate for at least 85% of his audience), noted his own discomfiture and asked Ms. Dietrick what the broader importance of this issue could possibly be. Her answer - which seemed obvious and I truly hope that's not a function of being a lawyer - was that, specifics aside, these are the kind of facts that test the limit of the First Amendment. This is spot-on. And even before these limits are developed on appeal, it's still important to have questions of who's a "public figure" and what falls within the scope of "newsworthy" up for public debate.
The First Amendment has been especially relevant to my work lately, in drafting a motion to the Appellate Division in a case involving free speech along with free expression of religion and freedom of assembly (in addition to a plethora of non-constitutional issues), which I wrapped up and filed earlier this week. If we win, then my clients have the law on their side against court interference with their religious practices, and if we lose, it means we have a chance to try again at the statewide level. True, it's low-profile and has very different issues from certain more notorious cases, but fortunately it also involves facts which are much less salacious, and for that I'm grateful.