There's been a ton of discussion about this case on several sites. I don't claim this as mine, but it is the best explanation I've found:

 

The fact that you don't understand that the 1st Amendment is applicable in cases beyond that involving direct government action shows that you don't know what you are talking about.  You are focusing on only one section of the 1st Amendment (Govt can't punish speech) and are completely ignoring another aspect:  the protections afforded the free press and more importantly that state created and sanctioned tort actions constitute "State Action" for purposes of defamation, invasion of privacy, etc. and thus the 1st Amendment is APPLICABLE in such cases.

In cases involving private individuals, such as when the press is accused of defamation, invasion of privacy, etc., the defense by the press is often firmly rooted in the 1st Amendment.  Basically, because it is the Govt itself which put statutes in place which allow a person to bring suit and recover against the press and thus is basically a quasi player in the suit.  Thus, using state law to punish someone for publishing something constitutes "State Action" under numerous US Supreme Court cases and thus could very well cause a violation of the 1st Amendment.

I will only take the time to show you how wrong you are, by merely noting that in the famous case: NY Times v Sullivan, the Supreme Court held that - Application by state courts of a rule of law (in that particular case - defamation), whether statutory or not, to award a judgment in a civil action, is "state action" under the Fourteenth Amendment. By extension, the 1st Amendment is incorporated by the 14th Amendment.

In numerous other cases involving "invasion of privacy, the courts have consistently applied this same rule, whereby a private action (if it is grounded in state "tort" law), such as a suit for "invasion of privacy" does in fact constitute "State Action."   In most states, the press is allowed to present a 1st Amendment defense in suits claiming "invasion of privacy" by balancing it's obligation, or allowance, to broadcast items which are newsworthy.   The 1st Amendment is very much a part of all cases involving the press and balancing the rights of individuals v. the press as per the US Supreme Court.

I'll cite to another more contemporary case to prove my point and prove you don't know what the Fark you are talking about. (And that the 1st Amendment is applicable to private tort actions.)

Snyder v Phelps, 562 US 443 (2011), involved a state tort action against members of the Westboro Baptist Church who were picketing the funeral of a dead soldier.

From Chief Justice Roberts Opinion: "The Free Speech Clause of the First Amendment-"Congress shall make no law . . . abridging the freedom of speech"- can serve as a defense in state tort suits, including suits for intentional infliction of emotional distress. See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 50-51 (1988).

Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. "[S]peech on 'matters of public concern' . . . is 'at the heart of the First Amendment's protection.'" Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 758-759 (1985) (opinion of Powell, J.) (quoting First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 776 (1978)). The First Amendment reflects "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). That is because "speech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana, 379 U. S. 64, 74-75 (1964). Accordingly, "speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection." Connick v. Myers, 461 U. S. 138, 145 (1983)"

 

Again, this isn't complicated, the 9 seconds of the Hogan film that Gawker posted cannot fall under the domain of government sanction. They are protected by the 1st Amendment and this case will certainly be reversed on appeal. Hogan's beef isn't with Gawker, it's with Clem, he's the one who leaked the film. Hogan and Clem are working the system and scoring a huge payday off of it, the whole thing was a work.

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