Hulk Hogan Sex-Tape Award Strikes Blow For Celebs’ Privacy – Law360

Hulk Hogan Sex-Tape Award Strikes Blow For Celebs’ Privacy

By Brandon Lowrey

Law360, Los Angeles (March 22, 2016, 10:13 PM ET) – Hulk Hogan’s $140 million trial victory over Gawker over the publication of a sex tape sends a clear message that even as celebrities are watched more intensely than ever before, pop culture icons are entitled to privacy in their most intimate moments.

The victory in Florida state court, paired with sportscaster Erin Andrews’ $55 million trial win two weeks earlier in a lawsuit over a nude video recorded through a peephole in a hotel room door, show that jurors can be swayed to fiercely defend celebrities’ privacy in this digital age.

“I think the message is that there is a boundary that the news media has to respect … and that not everything is fair game, even if you’re a celebrity,” said Jeremiah Reynolds, partner at Kinsella Weitzman Iser Kump & Aldisert LLP.

The win probably won’t be precedent-setting in the legal sense. The case is too bizarre and deceptively complicated, and it may well be overturned on appeal. But it may help to sharpen existing lines between public figures’ public and private lives, as it affirmed the notion that even celebrities can expect privacy while having sex in a darkened bedroom.
The case illustrates that while free speech is strong on the Internet, it’s not totally unfettered, said James Dempsey, executive director of the Berkeley Center for Law & Technology.

“Wrapping yourself in the mantle of journalism still does not immunize you from any and all liability,” he said. “Even on the Internet, even in these arguably coarser times, there remains a limit to be drawn between that which is subject to public comment and that which is private.”

The very premise of the case is unusual. Gawker Media LLC’s Gawker.com is a news and gossip site, not a porn outlet, and the company has defended the sex tape, recorded in 2006, as newsworthy and protected by the First Amendment.

At the time, Hulk Hogan, whose real name is Terry Gene Bollea, was close friends with a man named a radio shock jock whose legal name was Bubba the Love Sponge Clem.

Bubba was in an open marriage with Heather Clem. He encouraged and facilitated several sexual encounters between his friend and his wife. And he recorded at least one of those trysts and possibly more, according to court documents and testimony.

Bollea claimed he didn’t know he was being recorded, and only learned the sex tape existed after entertainment media outlets began talking about it in 2012.

A few outlets posted photographs from the sex tape, but none posted the video until Gawker received it from an anonymous source in October 2012.

Gawker’s then-editor A.J. Daulerio had the 30-minute sex tape edited down into a highlight reel about a minute and 40 seconds long that included about nine seconds of sex. He wrote an accompanying article graphically describing the couple’s sex acts, along with their rather ordinary conversation, and waxing poetic on the mundaneness and banality of this and other celebrity sex tapes.

World Wrestling Entertainment Inc. later fired Bollea amid media reports that the full sex tape captured him using racist language.

Bollea initially sued Gawker in federal court but dropped the case and refiled his privacy claims, including a claim for misappropriation of the right of publicity, in Florida state court, where he had related claims pending against the Clems. Bollea settled with them out of court.

The strange, two-week trial over Bollea’s privacy and publicity rights claims against Gawker began March 7.

Bollea contended that Gawker’s decision to publish the tape and refusal to take it down caused him severe emotional pain and ruined his career. He sought $100 million and claimed that Gawker made about $15 million off of the tape.

Gawker argued that the sex tape was newsworthy because other outlets had written and spoken about it and said it only received minimal profits from the post.

During the trial, Bollea testified that he and his alter ego Hulk Hogan are not only entitled to different levels of privacy but also have penises of different sizes. He said that as Hulk Hogan he exercises “artistic liberty” and blends the truth about his personal life with falsehoods and exaggerations.

Heather Cole, formerly Heather Clem, testified that her ex-husband was “manipulative” and “intimidating” and that he chose men for her to have sex with while they were married. Bubba refused to testify in the case, invoking the Fifth Amendment.

Daulerio, meanwhile, gave startlingly self-destructive testimony in a video deposition, quipping that he’d only refrain from posting a celebrity sex tape if it were of a child “under 4.” He reprised the joke when asked what he’d do with a Miley Cyrus sex tape, asking if the singer was under 4 when the tape was filmed.

Last week, jurors found Gawker, Daulerio and the website’s founder Nick Denton liable and awarded Bollea more than he had even asked for: $115 million in compensatory damages alone. The jury added $25 million in punitive damages to the verdict on Monday.

Even before the trial began, Gawker said that it expected to fight the true legal battle at the appellate level. The Florida appellate court will have access evidence that the trial court judge had excluded and will be far more wary of treading on the First Amendment than jurors.

And the state’s appellate judges have been much more receptive to Gawker’s arguments than trial court Judge Pamela Campbell.

For instance, the appellate court in 2013 reversed Campbell’s decision to force Gawker to take down the video and Daulerio’s accompanying article, finding that ordering Gawker to remove the article was a free speech violation.

And just last week, while the jury was deliberating, the appellate court unsealed and released to the public hundreds of pages of documents that Judge Campbell had sealed and excluded from the trial.

The documents included evidence that Bollea uttered racial slurs against black people on the tapes, and that Bubba told FBI agents that Bollea knew he was being filmed, among other things.

On Tuesday, Denton posted an article on Gawker making the case for his upcoming appeal. He blamed Judge Campbell’s decision to allow Bubba to refuse to testify and the exclusion of evidence.

“Hogan’s attorneys played this state circuit court trial as a popularity contest between the local celebrity and the miscreants from New York,” Denton wrote. “It was as staged as a professional wrestling bout, with victory of the crowd favorite over the ‘deviant’ bloggers — who were held responsible for Internet pornography, the dangers of search engines to children, and the indecency of what Hogan’s attorney Ken Turkel described as ‘Fifth Avenue’ publishers — ordained from the start. It was a classic obscenity trial disguised as a test of a person’s right to privacy.”

Reynolds said Gawker will most likely prevail on appeal, to some extent. Denton’s contentions aside, trials that center on newsworthiness tend to be extremely tricky — good news for those hopeful to see a rematch.

“The law is so uncertain in terms of what is newsworthy that there’s a very high likelihood that the trial court didn’t give correct jury instructions,” Reynolds said. “So you may have another trial in the next couple years on this.”

Bollea is represented by Kenneth G. Turkel and Shane B. Vogt of Bajo Cuva Cohen & Turkel PA, Charles J. Harder and Jennifer McGrath of Harder Mirell & Abrams LLP and David Houston.

Gawker is represented by Gregg D. Thomas and Rachel D. Fugate of Thomas & LoCicero PL and Seth D. Berlin, Michael D. Sullivan, Michael Berry, Alia L. Smith and Paul J. Safier of Levine Sullivan Koch & Schulz LLP.

The case is Bollea v. Gawker Media LLC et al., case number 12-012447-CI, in the Sixth Judicial Circuit Court of the State of Florida.