Free Press

Based on This, Hulk Hogan Should Lose His Sex Tape Case Against Gawker


The trial of alt-media outlet Gawker for invading the privacy of Hulk Hogan (a.k.a. Terry Bollea) by publishing excerpts of a sex tape should end in an acquittal for the website.

I'm basing that on this report from the trial by The Hollywood Reporter's Eriq Gardner. The pro-wrestling legend comes across as something of a mental patient, claiming that he is constantly engaging in elaborate identity switches between the "character" Hogan and the private citizen Bollea—and that the press should respect his privacy whenever he feels like it.

Reading the account, I'm reminded of the Seinfeld episode when Jerry is sleeping with his maid. After she wakes up from a nap at his apartment, she asks to get paid for making the bed. "I thought that was kind of girlfriend bed making," Jerry says. "No, that was the maid," she replies:

Gardner writes:

Hogan also had to address his interview with [radio host] Howard Stern. Hogan says that in going on Stern's show, "You have to take the good with the bad," and when the sex tape came up, he wasn't happy, but "I was on an entertainment show and I had to be an entertainer, so I just kept going."

Sullivan asks, "At no point did you tell Stern this was an invasion of privacy?"

"I didn't want to bring Terry Bollea the man into the conversation," Hogan answered, explaining that he understands that although he was there on Stern's show to promote a wrestling event, he understood the host would be touching on other issues….

"In that mode, it's entertainment. I'm in character. You have artistic liberty," [Bollea/Hogan] said, adding a bit later about his honesty, "Are we talking about the person or the character? The person sitting here under oath is Terry Bollea and I don't lie under oath."

Gardner also notes that Hogan is asking for $100 million in damages that he claims come from emotional distress after Gawker ran the sex tape excerpts. And yet, "the wrestler also admitted that he never consulted a psychiatrist about his distress after the sex tape was published."

Read the full article (link via Drudge).

At the heart of Hogan's argument is a bizarre, invented set of privacy concerns that could do real damage to all sorts of journalism by limiting the media's ability to represent what they're talking about in their stories (it's not surprising that Hogan also threw in copyright infringement charges on his original complaint).

Last summer, Reason's Ed Krayewski interviewed Hogan's and Gawker's attorneys. Read that here.

"Nobody is trying to stop the media from reporting news about a sex tape," Hogan's attorney said. "The only problem we have is that Gawker was able to publish the sex tape itself." This is kind of bizarre. Anyone is free to write about the tape and it's OK for Hogan himself to give interviews to TMZ, Howard Stern, and other outlets where they talk incessantly about the tape and what it depicts, but nobody should be allowed to see even a snippet of the video in question?

This doesn't even come close to running into the territory of a private citizen versus a public figure, since Hogan is clearly the latter (and, again, was more than willing to talk about the sex tape in interviews). What it might do, however, is create a space in which public figures can unilaterally assert privacy as a way to shut down far more consequential discussions than whether Hogan actually boasts a "tripod" (his term for his penis during the Stern appearance discussed at trial). What if politicians, policy makers, and others were able to start claiming such rights when under investigation from the press?

And, as important, what if media outlets were routinely subjected to arbitrary damages that would essentially force them into bankruptcy (as would be the case if Gawker loses and Hogan gets the $100 million he's asking for)?

If you care about a free press, keep an eye on the Hogan trial, whose verdict may be far more obscene than anything on Hulk's sex tape.