LOS ANGELES — While America’s attention is focused on Donald Trump’s contoversial run for The White House, another bit of celebrity theatre is underway in a St. Petersburg, Fla. courthouse, where an important case was decided today, which may set new limits on the freedom and scope of the press, free speech, and your personal privacy.
Indeed, if it were not for the media’s fascination with Mr. Trump, the case of iconic pro-wrestler Hulk Hogan, a.k.a. Terry Bollea, would have been featured more prominently on the nation’s radar screen.
Now, with news of Bollea’s $115 million dollar victory over Gawker Media, firm founder Nick Denton, and past Gawker.com editor Albert J. Daulerio, consumers and content creators are facing a changed digital media playing field.
The case centered on Gawker’s publication of an excerpt obtained from a sex tape that featured Bollea banging the wife of his best friend, Florida radio personality “Bubba the Love Sponge,” a.k.a. Todd Clem.
The details of the case would make (and may likely make) a good TV movie, with questions over who knew the tryst was being recorded, who encouraged the action, and more — as well as questions over what constitutes news and a news organization in the digital age; and when does a fictional character become a private person.
Bollea notes that while “Hulk Hogan” is a fictional persona that is prone to boast of his sexual prowess, “Terry Bollea” is a private person who is entitled to his privacy.
It is a stance that adult performers and promoters will want to consider.
While Gawker says that Bollea frequently discussed his sexual adventures in public and its actions are protected under the First Amendment, Bollea contends that he suffered emotional stress and harm over the release of the video, which he believes was not newsworthy and was published purely for profit.
Americans take their First Amendment right to free expression very seriously, and placing limitations on it is an incredibly contentious subject — but many trial-goers were stunned to hear Daulerio’s response while questioned about restrictions on publishing sex tapes, when Bollea attorney Douglas E. Mirell asked, “Can you imagine a situation where a celebrity sex tape would not be newsworthy?”
“If they were a child,” Daulerio responded.
Mirell sought to clarify Daulerio’s answer by asking, “Under what age?”
“Four,” replied Daulerio, underscoring the callousness with which the former Gawker editor decided on whether or not to reveal intimate details of celebrities’ lives — and calling into question limits on what constitutes a news organization or other entity that might enjoy more robust protections under the law than might a private person taking such actions.
Daulerio’s response reportedly did not endear him with the jury, and by all accounts put Gawker in an unfavorable light — a light that may lead to limitations on the scope of digital rights, and which is sure to fuel the ongoing discussion of whether or not it’s legal to publish celebrity or other third-party sex tapes that are obtained from “anonymous” or otherwise questionable sources.
According to industry attorney Marc Randazza of Randazza Legal Group, Gawker’s contribution to the First Amendment is the lesson of “this is why we can’t have nice things.”
As for the victor’s view, Bollea’s legal team was delighted with the verdict, explaining that “it represents a statement as to the public’s disgust with the invasion of privacy disguised as journalism — this verdict says no more.”
For its part, Gawker intends to appeal the verdict.
“Given key evidence and the most important witness were both improperly withheld from this jury, we all knew the appeals court will need to resolve the case,” Denton stated. “I am confident that we would have prevailed at trial if we had been allowed to present the full case to the jury. That’s why we feel very positive about the appeal that we have already begun preparing, as we expect to win this case ultimately.”