Why does Hulk Hogan even have a case against Gawker?

March 14, 2016

(Reuters) – You know that old saying about how you’d never eat sausage if you really knew how the sausage was made?

Thanks to celebrity wrestler Hulk Hogan, whose real name is Terry Bollea, we’ve learned some things this month about how the news used to be made at the website Gawker. The revelations – from Hogan’s invasion of privacy trial in state court in St. Petersburg, Florida – have not been appetizing.

You’ve probably read some of the coverage: The former Gawker editor who was solicited to buy a videotape of Hogan having sex with his then-best-friend’s wife flippantly testified that celebrity sex tapes are newsworthy as long as they do not involve children under the age of 4.

Hogan’s lawyers at Harder Mirell & Abrams and Bajo Cuva Cohen Turkel claim Gawker’s motives for posting an excerpt from the wrestler’s sex tape were purely mercenary. The wrestler’s Internet marketing and analytics experts testified that Gawker’s value rose by as much as $15 million as a result of the Hogan tape. Gawker’s side, represented by Levine Sullivan Koch & Schulz and Thomas & LoCicero, has cast doubt on its supposed profit motive.

More fundamentally, the website has said it posted a snippet of the Hogan tape – less than two minutes of a 30-minute video – to accompany commentary on celebrities’ sex lives, a matter of public interest.

The trial of Hogan’s claims has been portrayed as a contest between Hogan’s right to protect his privacy and Gawker’s First Amendment right to publish news people want to read. It’s immensely disheartening that Hulk Hogan’s sex life is a matter of public interest, but it’s pretty much indisputable that it is. As Gawker’s lawyers explained in a motion for summary judgment, Hogan’s sexual bravado is part of his persona, and he has talked about his exploits on his reality television show and the radio, in magazines and in his memoir. At the time Gawker published the sex-tape excerpt in 2012, Hogan’s relationship with his friend’s wife, Heather Clem, and the rumored tape of their encounter was a hot topic on celebrity gossip sites.

Both a federal judge and a Florida state appeals court have held that the tape was a matter of public interest. Hogan initially brought his case against Gawker in federal court in Tampa, seeking a preliminary injunction to force the site to take down the sex tape, which he said had been filmed without his knowledge. U.S. District Judge James Whittemore denied the injunction in 2012, finding that Hogan’s “public persona, including the publicity he and his family derived from a television reality show detailing their personal life, his own book describing an affair he had during his marriage, prior reports by other parties of the existence and content of the video, and (Hogan’s) own public discussion of issues relating to his marriage, sex life and the video all demonstrate that the video is a subject of general interest and concern to the community.”

Hogan dismissed his federal court suit and refiled the case in state court, where he once again requested an injunction directing Gawker to take down the video. Judge Pamela Campbell granted the injunction without much explanation. In January 2014, she was reversed by the Florida Second District Court. “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,” the opinion said. (Gawker eventually took down the video anyway.)

So if Hogan’s sex tape has news value, can he still recover for an invasion of privacy?

You never know what a jury will do, but the law is on Gawker’s side. For all of the furor over Hogan’s case, there’s nothing especially novel about courts balancing privacy and First Amendment interests. Generally, the U.S. Supreme Court has concluded that in matters of public importance, the First Amendment trumps privacy.

Precedent includes the 2011 holding in Snyder v. Phelps that Westboro Baptist Church members have the right to picket at military funerals and the landmark 2001 finding in Bartnicki v. Vopper that the First Amendment protected a radio station’s broadcast of a union official’s illegally recorded cellphone conversation. “Privacy concerns give way when balanced against the interest in publishing matters of public importance,” Justice Stephen Breyer wrote in the Bartnicki opinion. “One of the costs associated with participation in public affairs is an attendant loss of privacy.”

One of the few cases cutting the other way, as best as my research revealed, also involved a sex tape. In the late 1990s, a business called the Internet Entertainment Group obtained a sex tape of television star Pamela Anderson Lee and musician Bret Michaels. U.S. District Judge Dean Pregerson of Los Angeles enjoined the company from selling the sex tape. “The privilege to report newsworthy information is not without limit,” he wrote in an April 1998 opinion. “Even people who voluntarily enter the public sphere retain a privacy interest in the most intimate details of their lives.”

But several months later, the same judge ruled against Pamela Anderson Lee in her case against the parent company of the tabloid show “Hard Copy,” which aired an excerpt from her sex tape with Michaels. Lee could not overcome First Amendment deference to news reporting, the judge held. “Because Lee is a voluntary public figure, and because the private matters broadcast bore a substantial nexus to a matter of public interest which was not outweighed by their depth of intrusiveness, Lee’s privacy claim  fails as a matter of law,” he wrote.

Gawker has made these arguments to the trial judge in the Hogan case – the same judge whose 2013 injunction was reversed by the state appeals court (and whom Gawker tried unsuccessfully to have removed from the case). She has refused to toss the case, though from my review of the docket, she has not issued an opinion explaining her analysis of the First Amendment and privacy conflict.

Even if the jury is swayed by Hogan’s unflattering account of Gawker’s editorial judgment, Gawker is going to have a lot to say on appeal.

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