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The time has nearly come for a verdict in the first-ever trial pitting a celebrity against a media organization for the posting of a sex tape. The proceedings represent a probing of newsworthiness and whether the press can be held to maintain a standard of decency. More than three and a half years since Gawker published a post titled, “Even For A Minute, Watching Hulk Hogan Have Sex In A Canopy Bed Is Not Safe For Work But Watch It Anyway,” jury deliberations began after Hogan and Gawker gave a six-member jury in a Florida courtroom their closing arguments. These jurors began deliberations without having yet seen the sex tape in question.
Hogan (real name: Terry Bollea) contends that a less-than-two-minute excerpt of a 30-minute video, showing the famous wrestler sleeping with Heather Cole, then the wife of his best friend Bubba the Love Sponge (a radio host born Todd Clem), was an invasion of privacy, illegal wiretapping, a violation of the right of publicity and inflicted emotional distress. In weighing Hogan’s claims, the jury has been instructed to consider whether the video was highly offensive and was outside the bounds of human decency, causing (purposely or by reckless disregard) Hogan to experience shame and embarrassment. The jury will also consider whether Hogan had a reasonable expectation of privacy and whether Hogan’s name and likeness was used in a commercial purpose. If Hogan has proven the elements of his claims, the jury will also take up Gawker‘s defense — that the publishing of the video is protected by the First Amendment because it related to a public concern, meaning it was “newsworthy.”
Before closing arguments began, Pinellas County Judge Pamela Campbell noted the line between free speech and unfair intrusion, telling the jury they’d have to consider 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.”
Ken Turkel gave Hogan’s summary of the case.
“I want to begin our discussion with a simple thought,” began Turkel. “Mr. Bollea didn’t create this. … He didn’t consent to the video or post. He wasn’t even called before this post was put up. … The idea that in 2012 this video was sent to Gawker and they didn’t have the common decency to make one call gives you all you need to know about whether they are protected by the First Amendment.”
Turkel took the jury back to October 2012, presenting Gawker as “a bunch of young kids” and “rule-breakers,” making sick jokes in a private online chat room about Hogan, who he said “was at the lowest point of his life” thanks to the disintegration of his marriage. The post went up, Turkel continued, and “traffic soars. … It becomes a defining story” for Gawker, who refused to abide a demand from Hogan’s attorney David Houston “to be decent” and take the video down.
“Denton,” said Turkel, referring to Gawker owner Nick Denton, “doesn’t believe in privacy rights. He said it.”
In his closing, the attorney repeatedly attacked Denton for philosophizing that Gawker‘s goal is not to intentionally do good or commit journalism. “He’s so proud of being the guy who ruins lives,” said Turkel, shaking his head, later characterizing Denton as a “porn king” via ownership of a since-sold site called Fleshbot.
And as for A.J. Daulerio, the former Gawker editor who wrote the piece in question, Turkel brought up his flippant comment in a deposition that sex tapes featuring children over 4 were fair game: “They want to talk about First Amendment, wrapping the constitution around this guy? Please. Please.”
Turkel told the jury that Hogan was fortunate to play the same character for 35 years, but that “nobody cares who Terry Bollea is,” the man behind the famous personality, who grew up in the rough parts of Tampa and has dealt with difficulties nobody saw such as health problems. “One of the places he thought he had privacy was his best friend’s bedroom. He knows when he goes out, people will ask for selfies. … This case has nothing to do with that. This case deals with the area where he believed he had privacy.”
Hogan is targeting about $50 million for the seven million people who watched the video, $15 million for Gawker‘s increased value from posting the tape and more money for emotional damages. Sullivan directed jurors to look over at Hogan, who was wearing the black bandana he’s sported throughout the case. Upon the cue, Hogan gave his best sad look.
Approaching the jury, Turkel gave them a question to chew over in deliberations.
“Do you think the media can do whatever they want?” Turkel asked. “All they had to do was the decent, decent thing. The power of the media to do great harm, and the profits that come with it. … Let’s get to the punitive stage, and let’s get some justice here.”
Michael Sullivan gave Gawker‘s summary of the case.
He started by talking about everything that the jury heard during the two-week trial — tweets, screenshots, Daulerio’s commentary about the video — and said that none of this was the basis of the lawsuit. Sullivan seized on what the jury didn’t see.
“What video did they not show you?” he asked. “The very one that that Mr. Bollea claims is so damaging. Ask yourself why did they not show you that video?”
Sullivan provided an answer: “Because that video does not show that much. You don’t see close ups of body parts or sex acts in vivid detail. Here, it’s nine seconds of sexual acts. It’s grainy. I say to you members of the jury: When you retire, please watch the video. Decide for yourselves, make your own judgment, ask yourself: Do you think anyone is going to pay $5 for that?”
The purpose of Gawker‘s post, said Sullivan, was to make a broad social commentary about celebrity sex tapes. If Gawker had really wanted to exploit the sex tape for commercial value, Sullivan told the jury, “you can bet your bottom dollar that what Gawker published would have been dramatically different.”
To figure out what’s newsworthy, Sullivan said the context of the video has to be considered, context that included the prior coverage of the Hogan sex tape that existed before Gawker‘s posting as well as Hogan’s own media appearances. The first came with TMZ, which broke news about the existence of the sex tape. “Who among us thinks it is a good idea to send a message through TMZ?” asked Sullivan. “TMZ is the place where people go to get more attention for a sex tape.”
Gawker‘s attorney also walked the jury through the mysterious circumstances of the tape and how people were initially “scratching their heads” at a video where Hogan is seemingly with a woman who’s the wife of his best friend — and the best friend was present. If people enjoy a zone of privacy in their own bedroom, Sullivan pointed out that Hogan wasn’t in his own bedroom. He was at his friend’s, having sex with the guy’s wife.
Sullivan suggested that having visual proof of the tape and being able to provide more background was indeed newsworthy and lampooned the plaintiff’s claim that Hogan enjoys broad privacy rights on matters of sex, which the attorney argued was injected into the public domain by Hogan himself. For example, he pointed to a Hogan appearance on Bubba’s radio show bragging about the size of his penis and another on Howard Stern’s about sexual exploits. These appearances were made for promotional purposes, Sullivan noted, and when the sex tape came out, Hogan sought no medical help for his alleged emotional distress.
“And even if you credit [plaintiff’s] notion that Hogan and Mr. Bollea are two different people, the fact is that the rest of us can’t tell them apart,” said Sullivan.
There are still uncertainties surrounding the tape in question, Sullivan continued, addressing the absence of a key witness. “Was it a publicity stunt? Only two people know for certain: Bubba the Love Sponge and Mr. Bollea. But you will not hear from Bubba.”
The attorney also told the jury that Gawker‘s decision to post the video was a judgment call, that Hogan was hardly key to Gawker‘s brand identity, and that “we don’t sue people” for making jokes. He addressed the importance of free speech rights in this country. Asking the jury to not hold Gawker liable, Sullivan warned “otherwise we become a nation where powerful people, celebrities, corporations, politicians will use our courts to punish people for saying things they don’t like.”
Sullivan acknowledged that the jurors might not like Gawker‘s post nor sympathize with its ethos. Bringing up neo-Nazis, flag burners and radio shock jocks, Sullivan said all these things were protected under the U.S. Constitution. “We don’t need the First Amendment to protect what’s popular,” he said. “We need a First Amendment to protect what’s controversial.”
Given a last chance to rebut, Turkel responded, “This is not about political speech. This case is unique. … You’re not going to condemn someone’s right to engage in speech. You’re balancing the right to make the speech versus privacy rights.”
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