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Weighing free speech against privacy, a Florida jury has decided to uphold the sanctity of the latter by turning in a $115 million verdict against Gawker over its 2012 posting of a Hulk Hogan sex tape.
Hogan brought the case three years ago after Gawker, a 13-year-old digital news site founded by Nick Denton, an entrepreneur with an allergy to celebrity privacy, published a video the wrestler claimed was secretly recorded. The sex tape was sensational, showing Hogan — whose real name is Terry Bollea — engaged in sexual intercourse with Heather Cole, the then-wife of his best friend, Tampa-area radio shock jock Bubba the Love Sponge (real name: Todd Alan Clem). Gawker‘s posting of the Hogan sex tape was accompanied by an essay from then–editor-in-chief A.J. Daulerio about celebrity sex and a vivid play-by-play of the encounter between Hogan and Cole.
In an era when digital networks have reshaped culture, raising tough questions about sharing and prying in society, the jury got to hear two weeks of testimony in a first-of-its-kind sex tape case where discussions of newsworthiness and decency dominated.
Hogan, the first to take the witness stand, attempted to separate his public persona from his true and private self. “It’s turned my world upside down,” he testified about Gawker‘s posting. His many interviews with press outlets, some addressing his sexual boasts and endeavors, became the subject of a heated cross-examination. “The person sitting here under oath is Terry Bollea, and I don’t lie under oath,” said Hogan.
His attorneys also played depositions conducted with Denton and Gawker staffers, who had to explain tasteless jokes and their boundary-pushing philosophies on what’s appropriate to publish. “I believe in total freedom and information transparency,” said Denton. “I’m an extremist when it comes to that.” Many of those same Gawker hands later took the witness stand to put their journalism in a more flattering light, although Daulerio admitted Hulk Hogan’s penis isn’t newsworthy.
The trial also featured less salacious elements, with experts delving into the media business through discussion of digital marketing and web analytics. One of Hogan’s experts testified the benefit to Gawker from the sex tape was $15 million, while another, on behalf of the defendant, told the jury it was just $11,000.
The mysterious background of the sex tape was explored by Gawker: Who knew a taping was happening? Was it a publicity stunt? But Gawker couldn’t get Clem, whom they desperately wanted, on the witness stand to address conflicting accounts of who knew about the taping. Nor could they discuss many of the racist comments that Hogan had made during his sexual encounter with Cole to set up a possible argument that Hogan had an ulterior motive for the lawsuit.
A Florida appeals court ordered the unsealing of court records — including text messages between Hogan and Bubba, Bubba’s deposition testimony, what the FBI was told during its investigation, and a $5,000 settlement agreement between Hogan and Bubba — but none of that made it into the trial thanks to Florida Circuit Judge Pamela Campbell’s pretrial rulings that strongly favored Hogan. No part of the actual sex tape itself — including the excerpts published by Gawker — was shown to the jurors.
Nevertheless, the trial, which resembled the Scopes trial insofar as the amount of publicity attracted by a case centered on free speech and concerns about morality, provoked a discussion of ethics and boundaries in media like no other. One journalism professor, acting as an expert for Hogan, introduced his “Cheerios test” — whether readers could digest their breakfast while reading — with Hogan’s attorneys bringing up Caitlyn Jenner, Madonna, Magic Johnson and others to probe whether it mattered if a celebrity injects their personal life into the public arena. Even Thomas Jefferson’s name came up, with that same witness, Mike Foley, agreeing that it was good that the media speaks in different voices. “That was the original concept by Thomas Jefferson,” said Foley, referring to the First Amendment.
Ultimately, the case became a battle, at least indirectly, between the First Amendment, guaranteeing free speech and a free press, and the Fourteenth Amendment, where courts have determined that a right to privacy derives under equal protection of life, liberty and property. Like many states, Florida has enacted statutes that guard against intrusions on seclusion and privacy of communications. Hogan also won on his right of publicity claim.
“Do you think the media can do whatever they want?” asked Hogan’s attorney Ken Turkel in closing arguments.
“We don’t need the First Amendment to protect what’s popular,” responded Gawker attorney Michael Sullivan in his own closing. “We need a First Amendment to protect what’s controversial.”
“This is not about political speech,” rebutted Turkel to the jury. “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.”
In reaching its verdict, the jury tipped that scale toward privacy. Hogan sobbed, and after the outcome became clear, appeared relieved more than happy. The court will reconvene next week when the judge could decide to award punitive damages to Hogan.
A stunned-looking Nick Denton watched from the gallery and took a deep breath. Gawker already has indicated it will appeal. The focus of the coming proceedings likely will be whether the First Amendment should have precluded claims and whether Gawker got a fair trial.
Denton delivered a statement in response to the verdict. “Given key evidence and the most important witness were both improperly withheld from this jury, we all knew the appeals court will need to resolve the case,” he said. “I want to thank our lawyers for their outstanding work and am confident that we would have prevailed at trial if we had been allowed to present the full case to the jury. That’s why we feel very positive about the appeal that we have already begun preparing, as we expect to win this case ultimately.”
Hogan’s legal team hailed the outcome: “We’re exceptionally happy with the verdict. We think it represents a statement as to the public’s disgust with the invasion of privacy disguised as journalism. The verdict says no more.”
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