Hulk Hogan vs. Gawker - The Sex Tape and the $140M Award (1 Viewer)

[jbutler]

Despite Gawker being a regular part of my daily media diet, I hadn't followed this case that closely. I remembered, of course, back when AJ Daulerio (who, incidentally, looks like a less attractive @Trav if he constantly did a ton of coke) was editor, that he had posted the Hulk sex tape. I didn't find it all that interesting or notable, but evidently Hulk did because he ended up suing and was awarded $140 million for invasion of privacy.

That all sounds a lot more straightforward than it turns out to be, however. The original story on Gawker is here (with the video now removed, naturally). The NY Times has a decent primer on the award here, the Gawker response is here, an On The Media podcast focusing on the First Amendment implications (and including an interview with Gawker's President/General Counsel) here, and maybe the most thorough read is this Motherboard article here. Also see this interesting write-up of the copyright implications (Hulk's first attempt at suit against Gawker was on copyright grounds) by a lawyer with (hopefully) some expertise in copyright. Noah Feldman's argument in favor of Gawker on First Amendment grounds is here and is very persuasive.

Cliffs:

(1) Hulk was best friends with radio dj Bubba the Love Sponge (legal name) and banged Bubba's then-wife with Bubba's consent
(2) The banging occurred in Bubba's bedroom with Bubba present on site if not in the room during the act
(3) The banging was recorded on video
(4) Whether Hulk knew he was being filmed is unknown, but it is known that he was aware that Bubba had his bedroom wired for audio and video recording
(5) Hulk first attempted to sue Gawker on copyright grounds, but lost
(6) Hulk then sued on the basis of an alleged invasion of privacy and the case proceeded on this basis
(7) Hulk made statements prior to and during the suit that indicate he was less concerned with the sex tape and more concerned with the possible release of other tapes on which he could be heard making racist and homophobic statements and that the suit against Gawker was designed to discourage publication of those tapes (incidentally they were subsequently published and Hulk lost his contract with WWE as a result)
(8) Hulk also made frequent and graphic statements about his own sex life in his media appearances, which Gawker argued caused his sex life to be a matter of public interest and therefore the publication of his sex tape to be protected by the First Amendment
(9) Gawker was prevented from putting on evidence of many of the above facts during trial
(10) Hulk's lawyers put on evidence that the story increased traffic so much that Gawker's value rose by $15 million as a result
(11) After six hours of deliberation, the jury awarded Hulk $115 million in compensatory and $25 million in punitive damages

Obviously the number itself is ludicrous and even if Gawker loses on appeal (which I think is unlikely), the award will be substantially reduced. Unfortunately for Gawker, if they don't win on appeal and the number isn't substantially reduced, they will probably shut down.

It's maybe not as legally clear as the classic Hustler Magazine v. Jerry Falwell case in which Hustler was sued for a parody ad indicating Jerry Falwell had lost his virginity to his mother in an outhouse over a bottle of Campari (ad, which is hilarious, here; great clip of Edward Norton playing Larry Flynt's attorney during an appearance before the Supreme Court here), but it might be even more chilling of media coverage if the award stands.

 

[manamongkids]

This case never happens if Gawker just pulls the video when originally asked to do so. They brought this upon themselves after being asked by Hogans legal team and a judge to remove the video way back when

http://gawker.com/a-judge-told-us-to-take-down-our-hulk-hogan-sex-tape-po-481328088

Turned it into a dick measuring contest IMO.

Also, didn't help Gawker that the case was being tried in Florida, where people admittedly love Hogan and despise people like Daulerio and Denton

 

[jbutler]

This case never happens if Gawker just pulls the video when originally asked to do so. They brought this upon themselves after being asked by Hogans legal team and a judge to remove the video way back when

http://gawker.com/a-judge-told-us-to-take-down-our-hulk-hogan-sex-tape-po-481328088

You might be right that the practical impact of their taking it down would have prevented the suit, but imo we need media organizations willing to refuse to comply with what amounts to extortion in order to vindicate First Amendment rights.

Also, they did remove the video at that time. What they refused to remove was the narrative written by AJ Daulerio accompanying the video and transcribing the statements contained therein. The order to remove the narrative and transcript was utterly insane and wholly without legal support.

 

[manamongkids]

You might be right that the practical impact of their taking it down would have prevented the suit, but imo we need media organizations willing to refuse to comply with what amounts to extortion in order to vindicate First Amendment rights.

Also, they did remove the video at that time. What they refused to remove was the narrative written by AJ Daulerio accompanying the video and transcribing the statements contained therein. The order to remove the narrative and transcript was utterly insane and wholly without legal support.

Gawker also has a history of being the first to post videos like this one, and paying hefty amounts of money for it while pretending to be a credible news source.

They want to be a media company full of integrity with thoughtful news stories, while also at the same time trying to be TMZ...which is basically impossible to pull off.

I'm on Hogans side, whether he knew about the video being taped or not.

 

[Anthony Martino]

I've eaten at Hogan's Beach in Tampa and it was pretty good, so I'm siding with the Hulkster on this one.

 

[bentax1978]

I've eaten at Hogan's Beach in Tampa and it was pretty good, so I'm siding with the Hulkster on this one.

When legal scholars look back at this case, this could prove to be the rationale for denying Gawker's appeal.

 

[jbutler]

Gawker also has a history of being the first to post videos like this one, and paying hefty amounts of money for it while pretending to be a credible news source.

They want to be a media company full of integrity with thoughtful news stories, while also at the same time trying to be TMZ...which is basically impossible to pull off.

Mostly true (I would argue about whether it's possible to pull it off), but irrelevant as to the protections guaranteed by the First Amendment. That's sort of the point - you can be a scumbag (or a scumbag website), but you're still entitled to the same protections as the most upstanding citizen.

If your answer is based on personal morals/ethics and not the law, I can understand that. There are certainly plenty of media organizations I would love to see lose even if they're right just because they're pieces of shit. But I'd like to think that I would defend even the most repulsive garbage in the interest of keeping the First Amendment strong.

 

[manamongkids]

Mostly true (I would argue about whether it's possible to pull it off), but irrelevant as to the protections guaranteed by the First Amendment. That's sort of the point - you can be a scumbag (or a scumbag website), but you're still entitled to the same protections as the most upstanding citizen.

If your answer is based on personal morals/ethics and not the law, I can understand that. There are certainly plenty of media organizations I would love to see lose even if they're right just because they're pieces of shit. But I'd like to think that I would defend even the most repulsive garbage in the interest of keeping the First Amendment strong.

How far can this trickle down though, what if your sex tape was given to Gawker and they released it? Just because they can?

I think the Justice System is clearly trying to set a precedent with this case and a warning to media companies alike that this type of behavior will not be tolerated, and harsh penalties will be the result

 

[jbutler]

How far can this trickle down though, what if your sex tape was given to Gawker and they released it? Just because they can?

I think the Justice System is clearly trying to set a precedent with this case and a warning to media companies alike that this type of behavior will not be tolerated, and harsh penalties will be the result

The difference is that Hulk made his sex life a matter of public concern by doing frequent interviews and appearances in which he provided graphic details of his sexual escapades and made comments concerning whether he had or had not had sex with Bubba's wife. That's what make it a First Amendment issue.

So no, the publication of either my or your sex tape would be protected, but when the person at issue is a celebrity and he has made his sex life - and specifically when his having slept with this particular woman was made - a matter of public concern, then publication of the sex tape is protected.

But precedent is not set at the trial level. If Gawker loses on appeal, then not only will precedent be set, but decades of First Amendment law will have been overturned.

 

[SixSpeedFury]

That wasn't really the case though. The whole sex thing was just a cover up for the real damage, when he was caught saying that he hates n****rs dating his daughter Brooke.

 

[iBetOnEverything]

Let me tell you something brother

 

[jbutler]

That wasn't really the case though. The whole sex thing was just a cover up for the real damage, when he was caught saying that he hates n****rs dating his daughter Brooke.

Exactly. Which is the point Denton makes in Gawker's response and I believe strongly will heavily influence the decision of the appellate court.

Let me tell you something brother

A million likes. That is hilarious.

 

[Chippy McChiperson]

The difference is that Hulk made his sex life a matter of public concern by doing frequent interviews and appearances in which he provided graphic details of his sexual escapades and made comments concerning whether he had or had not had sex with Bubba's wife. That's what make it a First Amendment issue.

So no, the publication of either my or your sex tape would be protected, but when the person at issue is a celebrity and he has made his sex life - and specifically when his having slept with this particular woman was made - a matter of public concern, then publication of the sex tape is protected.

But precedent is not set at the trial level. If Gawker loses on appeal, then not only will precedent be set, but decades of First Amendment law will have been overturned.

Not a lawyer, so I'm not going to try to argue constitutuinal law here. I'll just argue what I think is right. Talking about your sex life is completely different than showing a video of yourself in a sex act. Even though they are about the same topic, one would be prohibited from being shown on public airwaves, while the other wouldn't (depending on the graphicness of the language). Also, Hogan voluntarily talked about his sex life, but made it clear in no uncertain terms that he was not giving permission to show the sex tapes. I would like to think that one is entitled to a certain amount of privacy under these circumstances.

Also, the logic that it was ok to show his sex tape because he talked about his sex life seems logically flawed to me. That's almost like arguing it's impossible to rape a prostitute because that prostitute sells sex for a living. I don't think any sane person would think that would be ok.

 

[jbutler]

Not a lawyer, so I'm not going to try to argue constitutuinal law here. I'll just argue what I think is right. Talking about your sex life is completely different than showing a video of yourself in a sex act. Even though they are about the same topic, one would be prohibited from being shown on public airwaves, while the other wouldn't (depending on the graphicness of the language). Also, Hogan voluntarily talked about his sex life, but made it clear in no uncertain terms that he was not giving permission to show the sex tapes. I would like to think that one is entitled to a certain amount of privacy under these circumstances.

What amount of privacy? If someone traffics in details about his sex life and explicitly profits off of his self-described sexual reputation, do you think they should be able to unilaterally define how the rest of the world discusses or publicizes the exploits of the individual profiting off of the image he has purposefully cultivated?

Also, the logic that it was ok to show his sex tape because he talked about his sex life seems logically flawed to me. That's almost like arguing it's impossible to rape a prostitute because that prostitute sells sex for a living. I don't think any sane person would think that would be ok.

I think this analogy borders on the Godwin's Law, but with regard to the logic of the argument that publication of the tape itself should be protected, it's very simple and, in fact, was already laid out succinctly by a Florida appellate court in a previous decision reversing the temporary injunction restraining the publication of the tape. The decision is here and is worth reading to get the full argument (First Amendment portion is section III in the decision - less than 3 pages). The cliff's notes version in an excerpt from the opinion:

Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public. The arguably inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.​

Consider that the affair and the tape itself was already a matter of public concern and was discussed at length by Hulk numerous times including a call to TMZ denying (or at least denying that he could confirm) that he slept with the woman at issue.

For that exact reason - the newsworthiness of the subject matter as indicated by the coverage of it and Hulk's willful participation in the coverage - the publication of the tape should be protected. He talked about his affairs, a sex tape was alleged to show an affair with a specific woman, and he denied knowledge of having slept with the woman. The tape itself is the only definitive evidence that resolves the question.

In a footnote, the Court noted its doubts as to whether Hulk had any real concerns about the publicizing of the affair or the tape itself:

We are hard-pressed to believe that Mr. Bollea truly desired the affair and Sex Tape to remain private or to otherwise be "swept under the rug." For example, in March 2012, Mr. Bollea called into TMZ Live, a celebrity and entertainment media outlet, and disclosed that he could not identify the woman in the Sex Tape because he had a number of "conquests" during the time it was filmed. Hulk Hogan — I Have NO IDEA Who My Sex Tape Partner Is, TMZ (March 7, 2012, 1:50 PM). Furthermore, in October 2012, Mr. Bollea appeared on The Howard Stern Show and professed that his good friend, Todd Alan Clem, known professionally as Bubba the Love Sponge, allowed Mr. Bollea to have sex with Mr. Clem's then-wife Heather Clem. Hulk Hogan — Yes, I Banged Bubba's Wife, TMZ (October 9, 2012, 6:08 AM). Mr. Bollea was certainly not shy about disclosing the explicit details of another affair he had while married to Linda Bollea in his autobiography. See My Life Outside the Ring at 187-88.​

As noted by @SixSpeedFury above, he had no serious interest in avoiding publication of the tape. He simply wanted to make less likely that Gawker or any other outlet would publish the more damaging tapes where he complained of his daughter dating black guys. This is exactly the type of chilling effect the First Amendment seeks to avoid.

 

[trever]

The difference is that Hulk made his sex life a matter of public concern by doing frequent interviews and appearances in which he provided graphic details of his sexual escapades and made comments concerning whether he had or had not had sex with Bubba's wife. That's what make it a First Amendment issue.

So no, the publication of either my or your sex tape would be protected, but when the person at issue is a celebrity and he has made his sex life - and specifically when his having slept with this particular woman was made - a matter of public concern, then publication of the sex tape is protected....

Is there a limit on the first amendment, or does anything anyone famous says ever, entitle us to see anything related to their comment? For example (squishy, but you get the point), as a frequent poster here, you are a celebrity (to us anyway). We have frequently seen posts that discuss your gambling, winning ways. Does that give me the right to post your tax returns here? After all, you have opened the door...

 

[bentax1978]

Not a lawyer, but I am a SOHE World Champion who stayed at a Holiday Inn Express last night, so I'm not going to try to argue constitutuinal law here. I'll just argue what I think is right.

FYP.






edit: sorry @Chippy McChiperson, I just can't help myself despite the fact that we've beaten this to death.

 

[jbutler]

Is there a limit on the first amendment, or does anything anyone famous says ever, entitle us to see anything related to their comment? For example (squishy, but you get the point), as a frequent poster here, you are a celebrity (to us anyway). We have frequently seen posts that discuss your gambling, winning ways. Does that give me the right to post your tax returns here? After all, you have opened the door...

Yes there is a limit. Per the Florida appellate decision linked to above:

Despite Mr. Bollea's public persona, we do not suggest that every aspect of his private life is a subject of public concern. However, the mere fact that the publication contains arguably inappropriate and otherwise sexually explicit content does not remove it from the realm of legitimate public interest. It is clear that as a result of the public controversy surrounding the affair and the Sex Tape, exacerbated in part by Mr. Bollea himself, the report and the related video excerpts address matters of public concern.​

With regard to my tax returns, shit, I don't know. My guess would be no, but naturally that's what I would say.

 

[manamongkids]

Part of the issue with this case is that Hulk himself hardly ever separates himself from Terry. Terry and Hulk do not exist, its like 99% Hulk 1% Terry whereas other celebrities are much different in that theyre not playing a character...typically

 

[snooptodd]

Let me tell you something brother

Should have been wearing the one you had at BBotB.

 

[jbutler]

Part of the issue with this case is that Hulk himself hardly ever separates himself from Terry. Terry and Hulk do not exist, its like 99% Hulk 1% Terry whereas other celebrities are much different in that theyre not playing a character...typically

That was a novel argument, but there is no precedent for a court acknowledging that one person can embody two characters and that those characters should be treated as different persons for the purposes of the relevant analysis.

 

[moose]

This case never happens if Gawker just pulls the video when originally asked to do so. They brought this upon themselves after being asked by Hogans legal team and a judge to remove the video way back when

http://gawker.com/a-judge-told-us-to-take-down-our-hulk-hogan-sex-tape-po-481328088

Turned it into a dick measuring contest IMO.

Also, didn't help Gawker that the case was being tried in Florida, where people admittedly love Hogan and despise people like Daulerio and Denton

Actually it did. lol. There is a clip from the trial where the Hulkster had to testify that his dick is not 10 inches long.

 

[manamongkids]

Actually it did. lol. There is a clip from the trial where the Hulkster had to testify that his dick is not 10 inches long.

not 10, but greater?

flaccid or erect?

 

[BiGGyT]

a bit off the point, but I have ZERO desire to know any of Mr. Hogan's anatomical details or watch him "in action", so do not care said video ever existed and I think the amount will be reduced.

 

[Poker Zombie]

If someone traffics in details about his sex life and explicitly profits off of his self-described sexual reputation, do you think they should be able to unilaterally define how the rest of the world discusses or publicizes the exploits of the individual profiting off of the image he has purposefully cultivated?

It wasn't until this line (post #14) that I could finally see any legal footing on which the defence could stand.

However, the relevant details to me in this case were:

• Hulk said things that cost him his job, and therefore a lot of money. Money he won't likely ever make anywhere else, because as a public figure, making racist comments is financial suicide for as long as the public remembers it.
• Free speech is tricky here, if you allow one person to dictate what another person can say/publish. However, I think it's pretty clear that Hulk did not want the actions on the tape to go public, and the tape was intended to be private. Even if he was willing to discuss the particular night on the tape, that is a far cry from allowing it being allowed to be publicly shown.
• The recording was made in a private location.

I am disregarding the fact that the tape involved sex. Just the conversations alone were recorded without the intent to have them published, and recorded in a private location. If he signed a waiver prior to making the tape, that would be one thing. If Mrs Clem released it, it would be a very gray line, because at least she was in the room being recorded. Nobody else had the right to release it without consent.

Not to mix topics, but somewhat related, Erin Andrews won $40 million in her privacy case - against the hotel. She didn't lose anything (like Hogan lost his primary source of income). $140 million to Hogan for breaching his privacy and costing him a career? I'd say that's right in the ballpark.

 

[BooRayUSA]

While good fish wrap fodder I really could care less about a sex tape with Hulk Hogan and whoever. I know I know we want to spank the constitutional mule on freedom of press, speech yadda yadda yadda.

Let's be honest, it's Hulk Hogan and it's a lot of freaking zeroes. Courts aside. Fame and fortune. If this was Joe Schmoe a 401k and some crappy sex tape, well you get picture.

Meanwhile Isis blows up Brussels

 

[manamongkids]

While good fish wrap fodder I really could care less about a sex tape with Hulk Hogan and whoever. I know I know we want to spank the constitutional mule on freedom of press, speech yadda yadda yadda.

Let's be honest, it's Hulk Hogan and it's a lot of freaking zeroes. Courts aside. Fame and fortune. If this was Joe Schmoe a 401k and some crappy sex tape, well you get picture.

Meanwhile Isis blows up Brussels

 

[acl1904]

I think part of Hogans settlement should include a leg drop on the editor...

 

[BooRayUSA]

So your point is what? you put this clip on but just can't say it? Wtf? I voiced my opinion on it. You want to trash that and call it stupid that's fine by me

 

[manamongkids]

So your point is what? you put this clip on but just can't say it? Wtf? I voiced my opinion on it. You want to trash that and call it stupid that's fine by me

Lol I guess I need to work on my posts, your post was very rambly and I could not make sense of it. That's it, nothing more, nothing less. Sorry to offend. Wasnt my intent

 

[jbutler]

It wasn't until this line (post #14) that I could finally see any legal footing on which the defence could stand.

However, the relevant details to me in this case were:

• Hulk said things that cost him his job, and therefore a lot of money. Money he won't likely ever make anywhere else, because as a public figure, making racist comments is financial suicide for as long as the public remembers it.
• Free speech is tricky here, if you allow one person to dictate what another person can say/publish. However, I think it's pretty clear that Hulk did not want the actions on the tape to go public, and the tape was intended to be private. Even if he was willing to discuss the particular night on the tape, that is a far cry from allowing it being allowed to be publicly shown.
• The recording was made in a private location.

I am disregarding the fact that the tape involved sex. Just the conversations alone were recorded without the intent to have them published, and recorded in a private location. If he signed a waiver prior to making the tape, that would be one thing. If Mrs Clem released it, it would be a very gray line, because at least she was in the room being recorded. Nobody else had the right to release it without consent.

Not to mix topics, but somewhat related, Erin Andrews won $40 million in her privacy case - against the hotel. She didn't lose anything (like Hogan lost his primary source of income). $140 million to Hogan for breaching his privacy and costing him a career? I'd say that's right in the ballpark.

Gawker didn't publish anything that caused Hulk to lose his job. The racist comments were not included in the tape they released and so have no bearing on damages in the case. They are relevant, but are not in Hulk's favor because they go toward whether he was arguing in good faith that the suit was pursued for any actual damages rather than simply to chill speech relating to the rest of the recordings that were circulating.

The Andrews case is actually a perfect example of how to litigate something like this if the plaintiff thinks they actually have a leg to stand on. You'll notice that she didn't go after any of the many sites that published the tape, but rather the parties who facilitated the recording itself. In the Hulk case, that would have been Bubba and his wife. But of course, going after the videographer wouldn't have discouraged publication of the racist comments, which was his intent all along.

You say that "free speech is tricky here". It really isn't. The only appellate decision reviewing the facts found against Hulk and made it clear that it wasn't even a close decision. It will be appealed again and Gawker will win. If you think it's tricky then it should be a relative flip and you should be very happy to get laid 2:1 on the result. My $300 to your $150 that, if appealed, the final result (by decision of the court hearing whatever final appeal is taken) is in Gawker's favor.