8:30am PT by Eriq Gardner
Hulk Hogan on Gawker Sex-Tape Trial: "I'll See This Through to the End"
When wrestler-turned-reality TV star Hulk Hogan sued Gawker in 2012 for posting part of a secretly recorded sex video, it was a poor bet that the $100 million suit would go to trial. No celebrity sex tape case has ever made it to a jury, for reasons ranging from the strength of the First Amendment to stars being more interested in wiping the video from the web than winning money. But Hogan (aka Terry Bollea) hasn't settled, and on July 6, he is set to make history when a trial opens in Florida.
How the case got this far is a reflection on the parties. Gawker is run by Nick Denton, 48, whose outspoken aversion to celebrity privacy — and wars with everyone from Lena Dunham to John Travolta to Quentin Tarantino — borders on the fanatical. Hogan, 61, sees the courtroom as one more match to conquer. "I have never been afraid to fight for what I think is right," Hogan tells THR. "I promised in the beginning that I would see this through to the end to hold Gawker accountable. And I will."
In addition to possibly setting new legal precedent for media outlets that publish celebrities' private moments, the trial could be one of the raunchiest ever. Even if Pinellas County Judge Pamela Campbell forbids the viewing of the video of Hogan with Heather Clem, the ex-wife of Hogan's best friend, documents in the case suggest testimony could be graphic. In an effort to show the sex tape qualifies as "newsworthy," Gawker is seeking to introduce evidence that Hogan has injected his sexual prowess into the public sphere by fondling women's breasts for a Rocky III publicity photo shoot and discussing in interviews where on a woman he likes to ejaculate, the size of his genitalia and the use of his mustache when performing oral sex.
The potentially NC-17 two-week proceeding is being watched by Hollywood attorneys for less prurient reasons. "This whole dispute is remarkable," says Adam Thurston at Drinker Biddle & Reath, who has handled cases involving celebrity sex photos. "I'm not aware of a celebrity sex tape case that has gone the full distance. … When you have a friendly state court judge, she's going to let Hogan have a pretty free hand at trial."
In addition to asserting his privacy rights were violated by Gawker, Hogan is suing for intentional infliction of emotional distress — saying in court documents that he "suffered a breakdown" when facing "a choice of having the sex video torpedo his career" — and alleging violation of his publicity rights, a popular claim by celebrities wishing to control the commercial use of their name and image.
Few publicity rights suits have made it to trial, as Dustin Hoffman's did in the late 1990s when he won a $3 million judgment against Los Angeles magazine for its computer-altered photo of him in a fashion spread. (The case was overturned on First Amendment grounds on appeal.) At Hogan's trial, expect discussion of how celebrity sex and nudity is used to drive traffic (and revenue) to news and gossip sites like Gawker.
Hogan's battle represents the latest strife in the escalating tension between the media and celebrities. As news outlets expand their reach through social media, public figures are finding it more difficult to escape the sometimes unflattering spotlight. More than 2.5 million people watched the Hogan sex video online. Gawker's story was published alongside an essay about why everyone likes to watch celebrities have sex, which Denton believes adds to its newsworthiness. But Hogan's team is preparing to call a professor of journalism at the University of Florida to testify that the video itself didn't need to be posted and fails the "Cheerios test," playing badly for readers eating breakfast.
The case addresses the breakdown of privacy in multiple ways. Hogan is claiming the tort of intrusion upon seclusion (usually analogized by the paparazzo who uses a telephoto lens to peek into a private residence) and also is asserting a claim under Florida's Wiretap Act because Gawker published a recording that was filmed secretly. Can journalists use illegal recordings? In 2001, the Supreme Court suggested they could, as long as they only played the role of recipient — an opinion (Bartnicki v. Vopper) that recently provided confidence for those reporting on hacked Sony documents. But Hogan's attorney Charles Harder points out the high court expressly exempted First Amendment protection on sex tapes and "domestic gossip or other information of purely private concern."
What rises above gossip to be newsworthy? Gawker asserts that it had every right to publish the video because it was evidence of adultery that received widespread media attention before Gawker's publication. The defendant also says Hogan participated in the discussion of the affair by denying it happened — potentially making the video needed corroboration. "The tell-all journalist in me is glad we'll have the opportunity to air out the issues in public," says Denton, who already has spent more than $1 million on the case (and had to sue his insurers to pick up some of the tab).
For Denton, who founded Gawker in 2003, the trial represents perhaps the most significant risk to his company. He settled a suit over an Eric Dane-Rebecca Gayheart sex tape that Gawker posted, but he says he found Hogan's demands unreasonable. (Neither side will say what Hogan wanted.) Now, the fate of his company could be in the hands of Florida jurors who will be told that Google searches for "Gawker" reached a historic high around the time of the Hogan sex tape story. "It is time to put an end to the immoral bullies who use the First Amendment as a means to destroy privacy and decency," says David Houston, a Hogan attorney.
Denton estimates there's a 1-in-10 chance Gawker faces "disaster." Any loss will be appealed, but Gawker might have to post a substantial bond in the interim. At trial, the focus likely will be on how Gawker got the tape, what it knew about it, how it used it to its advantage, and Hogan's injuries, if any (the potential $100 million comes from the punitive damages that Hogan has requested). Denton's team likely will attempt to frame all this in the context of free speech. Legal observers like Thurston say that Gawker would have the upper hand in any post-trial appeal (the judge's preliminary injunction was reversed by a Florida appeals court), but the more immediate problem for Gawker is that the jury won't take up its constitutional arguments that Hogan's claims interfere with the freedom of the press. Thus, a trial verdict could exert financial pressure on a media company that has prided itself on being as independent as possible.
As Denton prepares to defend a brand of journalism that he believes is free of corporate influence and the spin of publicists, he's speaking out about how celebrities should know better. Asked what would happen if he had the chance to sit down with Hogan, Denton says he'd tell his nemesis, "I take no pleasure in your embarrassment, but this was a story we had to write: It was true and it was interesting. You let the genie out of the bottle; you boasted about your sexual conquests endlessly. And you took up a celebrity perk — an invitation to have sex with a fan's wife — without thinking through the consequences. We take responsibility for our journalists' words and actions; take responsibility for yours."