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On Monday, in a Florida courtroom, something happened in this nation’s history that has never occurred before: A celebrity went to trial against a news organization over the publishing of a sex tape. The result is a battle over freedoms and responsibilities. As attorneys for Hulk Hogan and Gawker took turns delivering their opening statements, the jury heard about their generational opportunity to probe what’s newsworthy in a country that’s enormously proud of its abilities to speak freely in an era when the privacy of its citizens is more at risk than ever.
Hulk Hogan (born Terry Bollea), a professional wrestler known back in the day as “a real American hero,” is pursuing a substantial amount of damages for Gawker’s decision in Oct. 2012 to post a short excerpt of a 30-minute sex tape alongside an essay by A.J. Daulerio that muses about how “we love to watch famous people have sex.”
For nearly three-and-a-half years, Gawker has attempted to preclude the spectacle that’s now unfolding in Pinellas Country, Florida, by raising a First Amendment flag. Although the digital site fended off an injunction at an appeals court, Gawker was not able to stop what’s expected to be a weekslong trial that will feature both the strange circumstances of the sex tape at issue as well as how digital sites like Gawker accumulate readership from sensational stories.
The tape of Hogan having sex with Heather Clem, the ex-wife of Todd Clem — a radio show jock host known as “Bubba the Love Sponge” and Hogan’s best friend — was several years old by the time that it landed in the hands of Gawker, run by a privacy-adverse newsman by the name of Nick Denton. In the time since Gawker made its notorious post, more revelations about the sex tape have come to light including the fact that Hogan had no idea he was being recorded, an extortion attempt, an FBI investigation and a video where Hogan is shown using the N-word and making racist comments about the boyfriend of his daughter.
Shane Vogt, representing Hogan, admitted his client “has imperfections and flaws,” adding during the plaintiff’s opening statement, “He will be the first one to admit what he did. The situation with Heather Clem was one of those mistakes. He will sit there on the stand and will own it.”
But the attorney said this can’t excuse Gawker’s decision to traffic materials outside the bounds of human decency in a civilized society.
“[Hogan] will also tell you there is still a private side of his life, and that the private side of his life is even more important to him because there are so few places he can feel safe,” continued Vogt. “One of those places is his home and the other is his best friend’s house.”
Vogt attempted to re-tell Hogan’s life story from humble beginnings in a low-income neighborhood in Tampa to his role as “Thunderlips” in Rocky III to body slamming Andre the Giant at Wrestlemania to his recent health issues. “Celebrity is a very loose term that is thrown around,” he said. “Some people fall into it.”
As for Gawker, Vogt said it was no accident that the sex tape was published there of all places, noting Denton’s reputation and past commentary about what he likes to post. Vogt pointed to a Denton tweet where anything “true and interesting” became fair game and mentioned how Gawker had also covered nude pictures of Jennifer Lawrence and others. He portrayed the Hogan post as a form of “viral marketing,” and said the “higher purpose here wasn’t truth but rather money and power and an intent to harm.”
Although the case has recently earned a tremendous amount of news attention for what Hogan said during his sexual escapade with his best friend’s wife — the racist comments ended Hogan’s association with the WWE — Vogt told the jury that for whatever justifications now exist about why the sex tape is “newsworthy,” those concerns weren’t the topics of conversation inside the Gawker’s offices at the time of posting.
“They knew it was wrong, they knew it was an invasion of privacy, they told other people and they did it anyway,” said Vogt, stressing Pinellas County Judge Pamela Campbell’s instruction to the jury to focus on whether there was a morbid and sensational prying into private lives. “We will prove they crossed the line.”
Vogt finished off by requesting the jury hold Gawker accountable by forcing the news site to pay back the benefit it received for posting the sex tape, by giving Hogan a fee for each of the seven million people who viewed the sex tape, and by further awarding damages for emotional distress, or as Vogt put it, the “mental suffering, shame and humiliation of having [Hogan’s] naked body exposed.”
In response, Gawker attorney Michael Berry began his opening argument by telling the jury how he described the trial to his children. He told his son this was a case about a famous wrestler “who I looked up to as a kid” and told his daughter that it was about privacy.
Berry, in remarks much shorter than Vogt’s, attempted to pin the prurient interest in the sex tape on Hogan himself, saying the wrestler-turned-reality star had repeatedly blabbed about his sex life over the years to Howard Stern and to others in the media. Months before Gawker had posted the excerpt of the sex tape, TMZ had reported news of its existence, TheDirty had posted screen shots, and as observers speculated about the the woman in the video, The National Enquirer reported that the sex tape was the reason for the divorce between the Clems. “It already was big news,” said Vogt.
Gawker’s lawyer also spoke about Daulerio, who having witnessed intrigue surrounding Paris Hilton and Kim Kardashian, knew that “sex tapes had become a cultural phenomenon” and often served “publicity purposes.”
“Mr. Bollea has spent years telling the public why he is a role model,” noted Berry. “Daulerio got a DVD that showed something different.”
Berry also refuted the opposition’s argument that this was all about money for Gawker, saying that Denton’s site only earns income when there are advertisements — and that in this instance, because the Hogan story was labeled not-safe-for-work, there were no ads. Berry said that that the entire revenue for Gawker during the month it posted the sex tape amounted to less than $100,000. He also pointed to some of Gawker’s other big stories — including ones about Toronto mayor Rob Ford and NFL superstar Greg Hardy — and told the jury that there needs to be space for a website like Gawker. “These stories influenced the public discussion,” the attorney said. “They cut through the PR spin and offer unvarnished truth about public figures.”
Hogan is expected to be the first individual to take the witness stand when the trial resumes.
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