On Tuesday, July 6, a case opens in a courthouse in Florida that could have profound effects on the exercise of free speech on the Internet: Long-time professional wrestler Hulk Hogan is suing Gawker Media for $100 million—enough to put the company out of business—for posting a 90-second excerpt of a sex tape filmed in 2006. The salaciousness of the story aside, this case has the potential to chill all sorts of reporting on wealthy and powerful individuals based on private documents and materials obtained by members of the press.
In the video Gawker posted, Hogan is shown having sex with Heather Clem, the wife of radio shock job Bubba Clem, also known as "Bubba the Love Sponge." The video was run alongside an October 2012 story written by A.J. Daulerio about the public's fascination with celebrity sex tapes. Daulerio argued counterintuitively that people liked to watch celebrity tapes because the sex is closer to the average sex the public is familiar with than with what we might imagine celebrity sex to be like. Hogan contends that by posting the video, Gawker violated his right to privacy. Gawker says it has a First Amendment right to publish true information about public figures.
If successful, Hogan's suit could be financially ruinous to Gawker. But the case has larger implications for free speech as well. Indeed, it could have serious chilling effects on other news outlets that report unfavorably on celebrities and pseudo-celebrities obsessed with image management while setting a poor precedent on the use of privacy claims to squash reporting on public figures.
On the most basic level, this is a case about Gawker, an independent media company, fighting for its life. But it's also a case about the First Amendment and the right of the press to publish ideas, information, and images that the public wants to read.
At its core, the dispute between Gawker and Hogan is about competing visions of fundamental rights—a nearly unbridled right to free speech (at least theoretically) and a free press vs. the right more and more public figures are asserting to choose which parts of the lives they have made public can be reported on and how.
Hogan's lawyer, Charles Harder, a veteran media/entertainment litigator, argues that it's not a First Amendment case at all. Hundreds of articles were written about the sex tape, he says, and Hogan doesn't have a problem with any one of them.
"Nobody is trying to stop the media from reporting news about a sex tape," Hogan's attorney told Reason. "The only problem we have is that Gawker was able to publish the sex tape itself. And it has the potential, if it's not stopped, to allow that sex tape to continue to be played."
It's the video itself, not what was written about it. That's why Hogan is suing, Harder says. For Hogan, the case is about "the right to privacy, and it's a constitutional right," Harder told Reason, saying he realized the First Amendment "is also a constitutional right" but that it "has limitations" imposed on it.
"You can't defame someone if you're a reporter. There's a law against defamation," says Harder. (Gawker is not being accused of defaming Hulk Hogan.) "You can't print child pornography," Harder continuues. (Gawker is not being accused of printing child pornography.) The First Amendment is not unlimited, says Harder. "There's a limitation on privacy—you can't invade someone's privacy in a way that's against the law."
Specifically, Harder insists Gawker broke Florida's laws against video voyeurism, and specifically the law against video voyeurism dissemination, which Florida's statute defines as distributing images secretly recorded of another person dressing, undressing, or privately exposing their body when they had a reasonable expectation of privacy, for the purpose of amusement, entertainment, sexual arousal, gratification, or profit. (Hogan, whose birth name is Terry Bollea, is a Florida resident, which is the reason the trial is taking place in the Sunshine State.
Gawker's attorneys dispute Harder's characterization of the case, saying the Supreme Court "has been clear that when the news media reports on something that is newsworthy and of public concern they are not liable for" underlying criminal claims, "as long as they didn't have a hand in the illegal interception." There is no evidence Gawker broke the law to acquire the sex tape, and Hogan has not made that claim.
The legal history suggests that Gawker's argument has real merit. Hogan's lawsuit was initially filed in a federal court, which ruled in favor of Gawker's First Amendment rights to publish excerpts of Hulk Hogan's sex tape while reporting on the sex tape and controversy around it. The court said that publication of the tape was newsworthy and served the public interest, and was thus exempt from the publication of private facts tort.
But now the case, a civil one, has been refiled in a Florida state court—and Gawker's attempts to have it sent back to federal court have been rejected.
The legal particulars are complicated, with Hogan initially charging Gawker with invasion of privacy and inflicting emotional distress, then tacking on an allegation of copyright infringement when a federal judge ruled Hogan had failed to demonstrate irreparable damage and denied a temporary restraining order. Hogan eventually settled with Bubba Clem, who was responsible for the making of the tape.
Hogan dropped his copyright claim against Gawker and the federal lawsuit, adding Heather Clem, Bubba's wife—and the woman he was having sex with in the video—to the lawsuit, and refiling it in state court.
Because Heather was a resident of Florida like Hogan, adding her "broke diversity." That is, when a case has a plaintiff and a defendant from different jurisdictions (as Hulk Hogan and Gawker are), it must go to federal court. With a defendant from the same state as the plaintiff, the lawsuit can be filed in that state's courts. Hogan's lawyer says there's nothing unusual about this and disputes Gawker's assertion they went "court shopping," saying the previous lawsuit, from 2012, was "a long time ago."
In interviews, Hogan's lawyers rely on the rhetoric of a "constitutional right to privacy." Eugene Volokh, a UCLA law professor and founder of the law blog The Volokh Conspiracy, explained in an email to Reason, that Hogan's case is mostly "about the 'disclosure of private facts' tort, which generally allows lawsuits against private parties that have disclosed private and highly embarrassing facts about people, so long as those facts aren't seen as 'newsworthy.'"
The private facts' tort is limited by the First Amendment, but it's generally been upheld as constitutional when narrowly applied (that is, when the material that is published isn't considered newsworthy or in the public interest). The tort's boundaries are vague, and the Supreme Court has yet to weigh in. Volokh argues that Gawker is likely to face an uphill battle. "Actually showing someone having sex is likely to be seen as private, highly embarrassing, and not newsworthy (absent extremely unusual circumstances)," he told Reason.
Gawker's lawyers say that those circumstances do exist. Indeed, they are exactly why this case is about fundamental First Amendment rights.
In court filings and press statements, Gawker and its lawyers have insisted the matter of the Hogan sex tape was obviously newsworthy and of public concern—and a federal court agreed. Hulk Hogan isn't just a wrestler—he's created a celebrity image based on exploiting public interest in his private life. In particular, Gawker notes Hogan has talked in graphic and extended detail about his sexual exploits repeatedly with the media.
More importantly, Hogan had appeared numerous times on the satellite radio show of Bubba Clem, the shock jock whose wife he slept with, and in whose house the tape was filmed, to talk about his sex life. When admitting that the sex tape depicted him having sex with Heather Clem, Hogan claimed her husband gave him his permission.
Gawker points to comments Hogan made on The Howard Stern Show in 2011 that he would never sleep with Heather Clem, after he had already had sex with her, a lie uncovered only by the existence of the sex tape. Essentially, Gawker argues, Hogan had made his sex life—and in particular his sex life as it pertained to Heather and Bubba Clem—newsworthy, and a matter of public interest.
"Our basic test is whether the information is both true and interesting," Gawker's founder and publisher Nick Denton explained to Reason, pointing out that Gawker hadn't published leaked nude photos of Jennifer Lawrence, because they did not believe the photos added anything to the story.
"Hulk and Bubba have aired the wrestler's sex life on talk radio," Nick Denton said. "The way they talk about women seems disrespectful, but it's a free country. But—especially when revealing information leaks out—Gawker writers and readers also have a right to their own conversation on the same subject."
Gawker's attorney, Heather Dietrick, notes "the tape was a missing piece in a story that had been widely reported, we didn't have reason to believe that it wasn't real, and we included links to Hogan's public statements surrounding the existence of the tape."
Harder, Hogan's lawyer, argues that Gawker's position amounts to a declaration that "if someone's talked about sex, they've given up their right to privacy."
Harder insists Hogan had no problem with stories about the sex tape that didn't include excerpts from the tape. But he objected to Gawker not calling Hogan or his representatives when they received the tape, saying media outlets have generally always called beforehand. "Sometimes they'll stop, sometimes they'll print anyway," he explained "At least they reach out, at least they're trying to do the right thing in their mind." Not Gawker, according to Harder. "Gawker doesn't operate that type of way. They don't give anyone any warning, they just do what they want to do."
Gawker doesn't deny not reaching out to Hogan first. After all, as Denton explained, Gawker "takes more risks than most: we put the information of our readers before the pandering to subjects."
Harder points to the case over the Pamela Anderson and Tommy Lee sex tape from 13 years ago. That case revolved around a lawsuit by the couple against Internet Entertainment Group (IEG), which sold copies of the sex tape. The lawsuit was initially thrown out by the judge, who said the couple had signed away its rights to the video to IEG but an appeals court reversed the ruling. IEG stopped defending itself in court, and in a summary judgment Anderson and Lee were awarded about $1.4 million, the amount in profit IEG had made from the tape.
It's a very different case than Hulk Hogan's, however, which is about a tape depicting sex Hogan denied having as part of a wider, voluntary disclosure of his sex life to anyone who will listen.
Given Hogan's history of disclosure, the lawsuit against Gawker seems less a response to an invasion of privacy than a response to unfavorable coverage. Hogan certainly hasn't been shy about addressing the tape's contents: According to court filings by Gawker, Hogan made multiple media appearances when the sex tape was first reported on in 2012, talking about his "performance" in it and joking about the size of his penis even as he insisted it was a "serious thing."
Hogan has written elsewhere about his angst at having details of his sex life made public. In his 2010 book My Life Outside the Ring, Hogan wrote about how he felt when his affair with Christiane Plante, a record executive working with his daughter, became a national news story—in large part because of Hogan and his family's reality television show. "I was humiliated. I was angry," wrote Hogan. "I didn't know what to do. There was no one to sue – the story was true. I couldn't even figure out who to be angry with, except for myself for letting it happen in the first place."
But this time, there was someone to sue. First Bubba Clem, who claimed that Hogan knew about the sex tape the entire time, but eventually settled with Hogan for an undisclosed amount. And now Gawker.
There's a huge amount of money at stake if Hogan wins in court, although Hogan's lawyer wouldn't explain how his side came up with the $100 million figure, saying he would leave that explanation for the trial itself.
But the size of the damages may be a problem for Gawker if it loses. Under Florida law, a party found to owe damages must usually post the awarded money as bond while they appeal. Gawker's Denton says his company simply doesn't have that amount of money. So if Gawker wins a ruling in favor of its First Amendment rights on appeal, it may already be too late.
Denton told staffers earlier this month that once the case gets going, he'll "probably be portrayed as a New York pornographer and foreigner" in front of the Florida jury, but said he hoped "we can make it clear that we're fighting for the truth to hold elites accountable." (Free speech experts say Denton shouldn't worry about being called a pornographer. "Pornography is not a legal term," Jeffrey Douglas, chair of the board of the Free Speech Coalition, Chair Emeritus of the First Amendment Lawyers Association and a criminal defense lawyer, explained to Reason. "The characterization would have only emotional impact, not legal.")
Denton has also said the company didn't have $100 million to pay if it loses the lawsuit, and that it would need "somebody with deeper pockets and hopefully principles in order to keep it both commercially viable and editorially viable." In short, this means Gawker media, which owns Gawker as well as a suite of other feisty online media properties, would need an outside backer in order to survive.
Hogan's lawyer, Harder, says there may be a way out. He told Reason that there is another offer is on the table—one that would get Hogan to drop the lawsuit without paying $100 million. But Harder wouldn't share the details, saying it was for the lawyers and not for the media.
Dietrick, Gawker's lawyer, responded that she wasn't sure what Harder was referring to. But she did offer that "you don't need to be a First Amendment scholar to understand that a celebrity doesn't get to publicly talk about a topic again and again and then wield the power of the courts to exercise a line item veto over how the media tells the story."
Yesterday, First Look Media filed a "motion to intervene" in the trial, seeking to keep it open to the public. "The overarching principles at stake—that the public is entitled to know what takes place in the courts of the state of Florida, and the First Amendment right of Intervenors to report what happens in the courtroom to its readers," the motion reads, "transcend this case alone."