Can Gawker pull off a reverse pile driver in its battle with Hulk Hogan over the posting of a sex tape? On the heels of a Florida jury’s $140 million invasion-of-privacy verdict against the gossip website, its founder Nick Denton and former editor A.J. Daulerio, several legal experts believe Gawker stands a solid chance at winning an appeal or at least reducing the outsize award. “I’d be surprised if the damages amount is not cut down,” says entertainment litigator Neville Johnson, who adds this is a watershed case that has sent a message about privacy.
Gawker general counsel Heather Dietrick and other First Amendment specialists say the site likely will argue the case never should have gone to a jury. Gawker lawyers will present arguments that Hogan’s privacy rights do not limit the U.S. Constitution’s protections for free speech. In a summary judgment motion, Gawker attempted to argue that Hogan’s celebrity and discussion of private matters rendered the sex tape a matter of public concern as a matter of law rather than a triable fact. This could attract friend-of-the-court briefs from other media organizations. Hogan will assert that the judge correctly set up a balancing test between speech and privacy and let the jury decide whether Hogan had waived his right to object to a secret video of him engaging in sexual activity.
Because the Florida appeals court might wish to avoid using the Hogan case to establish a bright-line rule in sex-tape cases, an aspect of the trial that got the least press attention — jury instructions — could become the most important. Gawker might argue it was improper for the jury to determine what is “newsworthy.” Judge Pamela Campbell, whose decisions have been overturned more than those of any of her colleagues in Pinellas County, allowed jurors to determine what “ceases to be the giving of legitimate information to which the public is entitled and becomes a morbid and sensational prying into private lives for its own sake” — an instruction Gawker’s lawyers say all but invited jurors to side with Hogan (aka Terry Bollea).
Attorney Charles Harder (left) with Hogan in court.
Gawker also will focus on evidence precluded by the judge — in particular, that Hogan’s former friend Bubba the Love Sponge told the FBI Hogan might have known his sexual acts with Bubba’s wife were being recorded. Denton has called the trial a “sham” and cited Hogan’s text messages implying the suit was an attempt to prevent Gawker (or others) from writing about his racist comments. But that might be Gawker’s weakest argument. “It’s typically very difficult to overturn verdicts on evidentiary grounds,” says litigator Jeremiah Reynolds. “It’s more likely jury instructions matter.”
Then there’s the $140 million award. Was it supported by evidence of emotional distress? Unlike Erin Andrews’ case against a stalker, Hogan presented no evidence of a medical diagnosis. Hogan’s lawyers have maintained that Gawker’s arguments here miss the point — confusing the intensity of emotional distress with the type of emotional distress, and that it was properly put in the jury’s hands. That said, the amount Hogan got dwarfs the average $3 million verdict in a wrongful death case and the less than $1 million average verdict in a negligence case with no catastrophic damages. At trial, Hogan also prevailed on a right of publicity claim even though Gawker is emphatic that its use of plaintiff’s likeness wasn’t “commercial.” Hogan had experts testify that the sex tape was used to draw traffic, and that he should receive a fee for those who watched the tape, but an appellate court could also be invited to review what constitutes a commercial transaction for a news site.
There has already been lots of discussion about how Gawker will have to put up a $50 million bond to stay enforcement of the judgment. Gawker will petition for relief, but then again, it can always forgo the bond and invite Hogan to try to make his collection — a not-so-straightforward process involving fights in other courtrooms from New York to the Cayman Islands. Says Reynolds, “It will be a long time before Hulk Hogan sees a dollar, even if everything goes his way.”