At Hulk Hogan Sex Tape Trial, Gawker Rips Into Expert's "Cheerios Test"

The news defendant showcases its trial strategy in the interrogation of a journalism professor testifying on behalf of Hogan.

If the philosophical founding fathers of the United States of America were still alive, they'd surely enjoy the flavor of the fourth day of testimony in Hulk Hogan's trial against Gawker over the publishing of a sex tape. With mentions of everyone from Thomas Jefferson to Caitlyn Jenner, the proceedings veered towards addressing the faultiness underpinning universal aesthetic judgments as Gawker's attorney Michael Sullivan launched a blistering set of questions at Hogan's media expert, Mike Foley, on evolving and differing standards of taste. 

It's the opinion of Foley, a University of Florida journalism professor who spent three decades with the St. Petersburg Times, that in posting an excerpt of Hogan's sex tape on Oct. 4, 2012, Gawker flunked the "Cheerios Test," upsetting readers eating breakfast that morning. His assessment was delivered after the jury was shown taped excerpts of Gawker staffers explaining their thinking around Hogan's sex tape.

Gawker, in some sense, has already lost this case. Although there are plenty of observers who believe Hogan's trial to be a landmark test of the First Amendment, the truth is that constitutional questions don't go to a jury. Judge Pamela Campbell has already decided that the U.S. Constitution doesn't preclude Hogan from bringing to trial his allegations of having his privacy and publicity rights violated, and as such, Gawker has to endure the expense of having its sense of decency examined. A trial verdict in its favor may save its dignity, but it will hardly undo this precedent. (An appellate victory — should Gawker lose at trial — would provide some vindication.)

That said, although Gawker can't directly get the jury to take up its constitutional protections, it can redirect the trial's inquiry over a possible morbid and sensational prying into Hogan's private life towards an examination of whether it should be given latitude on determining newsworthiness. And so, the cross-examination of Foley — which early on spurred an objection from Hogan's legal team to the question of whether the First Amendment protects writing about the sex tape — served Gawker's larger purpose of moving the lens from the objective to the subjective, or maybe better put, the need for free speech.

When asked, Foley had to agree with a series of assessments from Sullivan that a news person's decision on whether to publish is a judgment call, that editors every day have to make such choices, that they come on a case-by-case basis, and that such decisions can be tough and close.

The questioning became more contentious when the topic moved to whether or not value judgments shift from publication to publication.

Sullivan asked, "Back in the day, when Hugh Hefner put naked photographs on the cover of his magazine, he wasn't an irresponsible publisher, was he?" 

"I think in the eyes of some people, he was reprehensible," answered Foley.

"But he didn't flunk the Cheerios Test, did he?" followed Sullivan.

"I don't get the comparison," responded Foley.

Through his questions, Sulivan tried to establish that when it comes to the Cheerios Test, a publisher has to be judged on whether or not that publisher's readership is offended. If those who visit Gawker are accustomed to seeing things like Kate Middleton's breasts or Brett Favre's penis, how could they possibly spit up their Cocoa Pebbles? (We're changing from Cheerios in honor of Hulk Hogan.) And what about the fact that Gawker exists in the online world or made the decision to label its Hogan post as "NSFW" (not safe for work)? As a comparison, Sullivan pointed to Fox News' decision to show ISIS beheadings on its website with warnings.

Sullivan asked, "With these kinds of devices — trigger warnings plus the need to click [to see the material] — isn't the notion of the Cheerios Test obsolete?"

"I think just the opposite," answered Foley. "You are saying 'ladies and gentlemen, you are offended by it,' yet publishing it anyway."

Sullivan got Foley to admit that the Cheerios Test was just a metaphor for taste, and that in the expert's opinion, Gawker was being tasteless. "Not your cup of tea?" asked Sullivan. "I don't read [Gawker] on a regular basis," responded Foley.

The discussion then moved to the celebrity factor in a news judgment. Foley admitted that because Madonna has cultivated a risqué profile, publishing a photo from her 1992 Sex book might be okay. Although as a former editor of the St. Petersburg Times, Foley says he wouldn't have published news of a public figure's sexually transmitted disease, he agreed it mattered when Magic Johnson came forward to talk about his HIV diagnosis. Foley was also asked if Jenner diminished her privacy interests on the topic of transitioning from male to female as a result of participating in a photo shoot and story with Vanity Fair. The implication in this line of questioning was Hogan had given up his own privacy interests in the sex tape by discussing his sexual life on a publicity tour.

Perhaps the biggest crack made to Foley's assessment that Gawker had flunked the Cheerios Test was the editor's letter he himself had penned to readers of the St. Petersburg Times back when the newspaper published a photo of the now famous 1991 cover of Vanity Fair showing a nude, pregnant Demi Moore.

Sullivan: "A number of readers said you flunked the Cheerios Test, right?"

Foley: "Not in those words."

Sullivan: "Some said that it was repugnantly vulgar."

Foley: "If I said that, it must be true."

Sullivan: "Can we agree that readers were upset?"

Foley: "There was an outcry, yes, from some readers."

Hogan's media expert justified publishing the photo because "it was news," and further stated, "Some photos of women are art." He also agreed that his newspaper could have reported about the Moore photograph without showing it.

Towards the end of the cross-examination — after Foley also gave a thumbs down to ABC News' decision to show a brief excerpt of the Hogan sex tape in its story about the lawsuit — Sullivan asked for Foley's agreement that a diverse media was a good thing.

"I take it you would agree that it's good the media speaks in different voices," said Gawker's attorney.

"That was the original concept by Thomas Jefferson," responded Foley.

"Yes, that's where we started," quipped Sullivan.

Foley gave his assent: "The U.S. Constitution." 

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