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Not two weeks removed from an Academy Awards ceremony that had observers cheering the brand of investigative journalism depicted in the Oscar-winning film Spotlight, a Florida jury got to see and hear another side of what goes on in newsrooms. This time, the screen wasn’t dominated by editors and writers talking about how to get to the bottom of a cover-up of sexual abuse by Catholic clergy. Instead, via taped depositions of Gawker staffers, the men and women who will be rendering a verdict in Hulk Hogan’s $100 million sex tape lawsuit witnessed jokes being made about the penises of public figures in private chat rooms.
“You don’t even know how good this Hulk Hogan sex tape is,” wrote one Gawker editor on a messaging service called Campfire when another site reported there was a different celebrity sex tape on the market. “F— Megan Fox.”
If trials are exercises in storytelling, Hogan’s attorneys took the past 24 hours as an opportunity to present Gawker as an unsympathetic collective of heartless and obstinate millennials who rapaciously stared at a screen showing traffic to their stories while sending crude messages to each other about their endeavors. The series of depositions shown to the jury followed Hogan’s own testimony where he tried to carve out some semblance of privacy for himself while being grilled on why he was discussing his sex life on a publicity tour. Hogan’s explanation is that he plays a “character,” but when he goes home, he’s Terry Bollea (his real name) and doesn’t expect the cameras to trail him into the bedroom.
Gawker‘s own story isn’t quite as disassociated. Nick Denton, its owner, has long admitted an aversion to privacy, directing his publication to tell the kinds of off-the-record stories that journalists pass along to each when hanging out together. “Ten years ago, people maintained very different private and professional personas,” he told THR in 2013. “Now that line has been obliterated.”
In deposition testimony, Denton was asked about that article and stuck to his guns, saying, “There are still too many stories which are kept within the guild of journalists or insiders” and “I believe in total freedom and information transparency … I’m an extremist when it comes to that. That’s why I love the US.”
Denton said he was more interested in Deadspin’s Manti Te’o scoop than the Hulk Hogan sex tape, but thought the latter had “higher meaning” than another Gawker story involving Kate Middleton’s breasts. He said he didn’t recall specifically the conversation he had with A.J. Daulerio, the former Gawker editor who wrote the piece about the wonderments of watching celebrity sex that accompanied the publishing of the Hulk Hogan sex tape, but says that in general, he “would have encouraged him to avoid being gratuitous, for instance putting up the whole tape without making a point. I would also advise him to consult with our counsel.”
The jury also got to hear from Daulerio.
In a deposition, he was asked to explain the value of past Gawker stories showing Brett Favre’s penis and Kate Middleton’s breasts. He was shown an email from Denton to staff that stated, “A.J. breaks all the usual rules of orthodox management.” Unapologetic throughout his interrogation, Daulerio said that a successful story for Gawker garnered more than 8,000,000 pageviews and admitted that staffers got bonuses for stories that earned especially large readership. He says there’s never been a story he wrote that he regretted.
As to the Hogan sex tape, Daulerio was contacted by an anonymous source in 2012. According to Daulerio, the man wanted to share the tape and never asked for money. Daulerio was on vacation when the package arrived. He says there never was any discussion at Gawker about not running with the video and agreed it was important to show Hogan’s penis to readers. Instead of pixelating the image, Gawker ran it as NSFW, or “not safe for work.” “The whole point of the story was to prove its existence and provide a commentary,” said Daulerio. “I was very enthusiastic about writing about it.”
Daulerio was a tad inconsistent during his deposition about the “newsworthiness” of the sex tape, although he ultimately ended up voicing the opinion that it was indeed worth reporting about and more importantly, showing uncensored excerpts.
Asked whether he would be embarrassed if someone published a secretly recorded video of him having sex, Daulerio responded, “Briefly,” adding only if something went horribly wrong, and, “I somewhat expect that to happen at some point.” Questioned on whether he drew any limits on sex tapes, Daulerio said he wouldn’t run any that featured children under the age of 4.
The jury has also heard from current Gawker executive editor John Cook — who said it was appropriate to joke about penises in private chats (Daulerio had written: [Hogan’s] penis is also wearing a little do-rag”) and never considered Hogan’s potential emotional distress before posting the sex tape — as well as from Jezebel editor Emma Carmichael, who at 23 became managing editor at Gawker. She testified she was comfortable with the way Gawker ultimately framed the Hulk Hogan sex story. She did, though, admit she was “anti-revenge porn” and further admitted it was in poor humor when after Hogan sent a cease-and-desist letter she wrote to other staffers, “Hello, editorial policy is do not talk about Hulk Hogan sex tape while our legal department processes his giant… lawsuit.”
Besides Hogan himself, the man most responsible for the filing of the lawsuit is the celebrity’s longtime personal attorney David Houston, who took the witness stand Wednesday to explain how the sex tape became public. Houston testified that when news of the sex tape surfaced, he cooperated with TMZ and The Dirty so as to find out more about its source. He described receiving and rejecting an offer from Vivid Entertainment to distribute the sex tape. And when Gawker finally published an excerpt of the sex tape in October 2012, Houston says he sent an informal letter along with a stern cease-and-desist demand to remove the video.
“I tried to approach it in a human sense,” said Houston. “The idea was, ‘We’re not here to challenge you. I’m asking you as a human being take down the video.’ “
The effort was obviously unsuccessful.
“Some like to call it viral,” said Houston. “In this case, it was cancerous.”
The day ended with testimony from Mike Foley, a former newspaper reporter and editor who is now a professor at the University of Florida and has been retained as Hogan’s media expert. Foley said that freedom of the press is “extremely important” — marking the first time that the First Amendment has come up at trial — but also that “common sense must drive what we do.”
“You think how will Mr. and Mrs. St. Petersburg react over breakfast,” said Foley about standards on what’s appropriate to publish. He added that publishers shouldn’t go into lurid detail unless absolutely essential to a story. “You have to step back and ask is it necessary.”
Asked whether Gawker broke a journalism code of ethics, Foley said, “Yes.”
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