Free Press

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

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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.

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  1. *grabs popcorn*

    1. “Fuck ’em, Ethan. Fuck this whoooole thing.”

  2. For me, the ideal result would be that the jury rules against Hogan, yet finds Gawker in contempt of court and subject to a $100 million fine.

    /can’t they both lose?

    1. Is that a euphemism for your wanker? If so, I argue that you are a public figure and your private sex acts are fair game for publishing.

      1. Well yes. But no one is filming me.

        1. To your knowledge.

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

    Nick… Nick…Nick.

  4. YEAH, BROTHER

  5. How does all this jibe with the woman’s jury award of what, $50 million for being spied on in her hotel room and having some rather unspectacular* nude shots released?

    *By “unspectacular” I mean that there’s far better real porn on the internet as opposed to fuzzy nude shots of an unsuspecting celebrity.

    1. It doesn’t. In fact, Andrews’ case was weaker than Hogan’s.

      1. I’m not making a judgement, I’m just seeing some similarities between the two cases, and while no one deserves to have nude photos of them released sans consent, I thought $50 million was a little steep, considering a family member was permanently paralyzed in an auto accident and got less than $50,000.

        1. Andrews certainly was violated. The question is whether or not Marriott bore any liability for it. At worst, it could be argued that they were mildly negligent and allowed themselves to be taken advantage of, but I don’t see any evidence that they intentionally abetted the stalker.

          1. Marriott was fount to have contributed 49% to the negligence.

            1. Mostly because Marriott is the only source of money.

            2. Rule #1: Sue the people with the money.

        2. Yeah, my mom was hobbled by a botched surgery and got nothing. C’est la vie for the little folk.

  6. So we can take any private nude pics or videos of you Nick and disseminate them with no repercussion since you are a public figure? You won’t complain, right? That would be as if you are not defending the right of free press.

  7. Didn’t Gawker condemn people for viewing stolen nude photos of Jennifer Lawrence?

    1. Yes. Gawker exists in a realm of absolute hypocrisy and self-loathing.

      On the bright side, most of their writers are super poor and their poverty and misery sustain me.

      1. Is Gen Y now “Millenials”?

        1. It’s Gawker-speak for ‘I have no marketable skills but think I deserve lots of money anyway.’

          Gawker-speak is a very laconic language.

          1. I thank you for translating. Between them and coached feminist children, they sure have made cursing seem lame.

      2. The only thing that makes me special is I have more ballooning debt than you. I’ve tempered the hell out of my expectations of work, and I’ve exceeded those expectations crazily to have one interesting, exciting damned career that’s culminated in some leadership roles for national publications. And I’m still poor and in debt

        Is he poor or is he broke? There’s a difference. I suspect a college educated white kid that allowed himself to run up a high amount of college debt to end up in a ‘creative’ career has a certain amount of white privilege, to borrow a phrase.

        I don’t like it when middle class white kids call themselves poor. Take this as my own personal Social Justice Rant. I know what it’s like to be flat fucking broke and have an uncomfortable amount of debt. But I never called myself poor. I called myself broke. I owned my own home, was able to just barely make the house payment and put food on my table, all while having a good job that at the time, didn’t pay a great deal, but was enough to get by on. But I didn’t have an extra dollar in my pocket for ANYTHING other than rent and food. That’s it. But I wasn’t poor, because I had a support network of family members and friends who probably would have been there during any emergencies– and in fact were.

        Armies of tweeting, college-educated white kids in creative writing jobs calling themselves poor is getting annoying.

        1. I hear only minorities can be poor anyways.

    2. Gawker is a bunch of lowlife scum.

      They just might be an even bigger pile of scum than Ezra Klein and his fellow members of the JournoList. It’s hard to say for sure; it’s very close.

      1. Ezra is a pathetic hack for sure, but I don’t think he comes close to the level of scum at Gawker.

  8. And the Seinfeld analogy is some seriously weak sauce.

    1. “And I think, rather sophisticated.”

  9. Nick Gillespie on NSA: People have a right to privacy and it should not be infringed.

    Nick Gillespie on Hogan: He doesn’t have a right to privacy.

    1. I’m pretty sure Nick doesn’t think the government has the right to spy on Hulk Hogan without a warrant.

      1. But a private citizen or group doing it is ok?

    2. The primary ethos of all media left-liberals is that their rights supersede and trump all of your rights and mine.

      The media will even sometimes attempt to make a serious argument that someone is a public figure simply because the media says he is. In other words, we are all “public figures”.

      They made this argument several years ago when slimeball New York Times editorialist Nicholas Kristof falsely accused a man named Steven Hatfill of being the 2011 anthrax letter mailer, with help from one of his old colleagues with a personal axe to grind named Barabara Hatch Rosenberg. They argued that he was a “public figure”, even though 99.99% of the general public had never heard of the dude before the false accusation.

  10. “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.”

    There’s definitely something (extremely) libertarian to this in that “right to privacy” isn’t grounded in private property and is therefore an aberration. Have to say though, I really haven’t read much of reason supporting this view.

  11. Yet the Kardashians churn over sex tapes to their advantage all the time. I for the life of me still don’t know what they’ve achieved to garner so much attention besides sex.

  12. I don’t get it, Nick. He didn’t consent to the public release of the tape. The public v private person distinction doesn’t matter when you are talking about invasion of privacy, only when you are talking about defamation.

    If you are opposed to anyone releasing sex tapes or nude photos of anyone without consent, I don’t see how this article changes that conclusion.

    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?

    Not without his consent, no. There is a huge difference between talking about the fact that something exists, and saying that there is no privacy interest because people are talking about the fact that it exists.

    I have a medical record. There, I’m talking about the fact that it exists. Does that mean that anyone can now publish my medical records on the internet without invading my privacy. Of course not, and its stupid to claim that they can.

    1. 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?

      This paragraph is the most galling. Hogan is not a figure of authority that has been entrusted with powers over his fellow man. Gillespie is simply arguing that because Hogan is in the public eye that his entire life is fair game, up to and including secretly recorded video of his sexual escapades.

      1. Gillespie is defending the guild.

        1. Principals, not principles. Sad.

        2. Frankly, at this point anyone who’s still surprised at anything he says is just plain dumb.

    2. One of America’s leading newspapers is at stake here.

  13. But the tape was made secretly by a third party.

  14. all details aside, fuck Gawker.

  15. So I am a little foggy on some of the details. Who actually released the sex tape in the first place. Do we know that? Did someone hack an account where the video was stored digitally? Did the chick he slept with release it? Did someone break into his house and steal a physical copy of the video?

    The only reason that I can see Gawker would have ANY liability is if they participated in stealing something or hacking an account.

    1. I disagree. I think Gawker releasing this tape without knowing its provenance and obtaining Hogan’s consent is reckless. At a minimum, it was negligent, and that’s a basis for liability.

      1. This is actual willful negligence, as opposed to Marriot’s actions in the Andrews’ case.

        1. But Marriot isn’t part of the guild. And they don’t pay the Danegeld like the Koch Bros so f@ck’em.

        2. Gents,
          I appreciate your thoughts on this. I don’t pretend to be an expert on alot of this TMZ type stuff. I guess my thinking is that if the video was already out in the public, then did Gawker do anything wrong? But I don’t even know if the video was out there or if Gawker was the original release point of the video.

          In any case, I really don’t see $100 M worth of harm here no matter what the details are. Wouldn’t Hogan actually have to demonstrate some sort of actual damage? He didn’t see a shrink. Is he saying that his brand was harmed? If so, how?

          1. From what I’ve heard, the tape was illegally made by a camera planted in his room, and Gawker was the one who obtained and released the footage, simultaneously denouncing other news organizations who did the exact same to other celebrities.

          2. I really don’t see $100 M worth of harm here no matter what the details are.

            Me, neither. But, based on what I think I know, they should pay some damages. Enough to make them think twice about doing it again.

    2. Yeah, I’m a little confused about the whole thing myself.

      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.”

      So is Hulk Hogan suing for $100 million or is Terry Bollea? And even if “the wrestler” admitted that he never consulted a psychiatrist, did Terry Bollea consult a psychiatrist and was Hulk Hogan aware of this? And who is on the sex tape – Terry or Hulk? If Hulk’s a public figure and therefore not entitled to a right to privacy the same as a non-public figure, what about Terry? But if Terry’s the non-public figure whose reputation was damaged, how is that reputational damage worth $100 million since it’s Hulk’s reputation that is the valuable one? So confusing.

      1. Confusion stems from the fact that wrestlers are actors who are usually contractually obligated to perform “in character” during interviews. Because the wrestling federations of this country are obsessed with making it seem like wrestling is real despite the fact that even most wrestling facts know it is an act. But the wrestling leagues don’t openly admit that, so they make their actors remain in character during interviews.

        Imagine how confusing things would be if Johnny Depp was required to do all interviews adopting the persona of Captain Jack Sparrow, or if Sir Christopher Lee was required to act like the wizard Saruman in every interview he gave. Shit would get very confusing and the actors involved would look crazy to anyone who didn’t know that they were required to act that way.

  16. About the multiple personna thing – I heard an interview with Hogan around the time that Savage died. He talked about the 3 peronna’s he’s had to adopt in his life. In his work life, he’s the Hulkster, a bucket of simmering rage just waiting for release. At home, he’s Terry, a friendly, pretty mild mannered guy that likes football, beer, and working out. The problem is that when he goes anywhere in public, part of his branding demands that he be the Hulkster and they are disappointed when they meet Terry. So he has a 3rd personna that he uses when dealing with the public – Hulkster lite. Hulkster Lite talks in a low, growl and says things like “Thanks for showing me where the plumbing aisle is brother” at the Home Depot. He also high fives people a lot.

    1. This is either a pretty interesting description of the challenge of balancing a celebrity identity or a hilarious farce. Bravo either ways

  17. “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 Bolle”

    Do you not understand that Bollea is an ACTOR?? An actor who plays Hulk Hogan?? Everyone knows wrestling is an act, and the actors have stage personas that they adopt to play their part. It’s not “mental” to act in character. And maybe you weren’t aware, but wrestlers usually have contracts that stipulate that when they are being interviewed for an event, like he was, they are contractually REQUIRED to do the interview in character.

    This isn’t “mental”, this is a freaking actor doing his job. It’s not insanity that causes Johnny Depp to act like “Captain Jack Sparrow” adopting a whole new persona, and neither is it insane that Bollea occasionally acts like “Hulk Hogan”.

    1. Excellent observations, Sky.

  18. So this is apparently what happened in a nut shell:
    So Hogan had sex with Bubba The Love Sponge’s estranged wife, Heather Clem. Then in April of 2012, a tape of them showed up online, with some statements that might indicate they were going to use the video in some way financially.
    Then he sued Bubba and Clem. Bubba settled, but I guess Clem didn’t. Though she did “apologize” (I don’t know what that actually means in this context). Then he joined Gawker to the lawsuit with Clem. Which seems odd because while Gawker may have done some wrong, it seems substantially different than what Clem (we think) did.

    And,
    Apparently he is suing Gawker for “defamation, loss of privacy, and emotional pain”.
    How is a video of him having sex with someone “defamation”. Unless Gawker did something else with the video, or made some serious accusations in relation to it, I don’t see how.
    “Loss of Privacy”. Perhaps, but how does one quantify that?
    “Emotional pain”. So much pain, he never sought any treatment? What actual harm can he demonstrate?

    Since emotional pain is a big consideration here, should any college girl that had a video end up on youporn without her knowledge be entitled to 100 million dollars?

  19. The problem with Hogan taking the stand about anything is that he has no credibility. This is a man who has lied so many times about his life that I’m not sure he even realizes what is the truth. It’s sad, but it also means you cannot believe a word he says.

  20. I saw this info on Hollywood Reporter
    http://www.hollywoodreporter.c…..ulk-875719
    then I quote: “Gawker’s Nick Denton Explains Why Invasion of Privacy Is Positive for Society”

    Let me guess, if we invade his privacy however….. I could conclude then invasion of privacy is “for the thee but not for me”.

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