United States: Sex, Lies, And The First Amendment (But No Copyright): Hulk Hogan's Leg Drop On Gawker

On Friday night, a Florida jury delivered a stunning verdict in Hulk Hogan's lawsuit against Gawker Media LLC and its sundry entities, awarding the former wrestler and movie and television personality $115 million on claims that Gawker invaded Hogan's privacy rights, and caused emotional distress.

Although Hogan demanded only $100 million in damages, the jurors decided it should be more. After deliberating for less than six hours, they awarded Hogan $55 million for economic injuries and $60 million for emotional distress. These amounts do not include the punitive damages, which the jury is scheduled to consider later today. The case touched upon several legal and journalistic issues, most notably the question of what is protected free speech under the First Amendment. The claims on which this verdict was based, however, were only brought after a prior unsuccessful attempt to enforce Hogan's copyright of the videotape Gawker posted on its website.


The case began in October 2012, after a Gawker editor posted a story ("Even for a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed is Not Safe For Work but Watch it Anyway") on the news-gossip website that included a 1 minute, 41 second video clip featuring Hogan (whose real name is Terry Bollea) having sex with Heather Clem, the wife of Hogan's former friend, Bubba the Love Sponge Clem (f/k/a Todd Clem). The incident took place some six years prior while Hogan was still married to his first wife. Hogan denied any knowledge or involvement in the taping of the encounter.

Though the excerpt Gawker posted was blurry, apparently as a result of being taken with a black-and-white security camera from a distance, Hogan and Mrs. Clem are easily identifiable and clearly engaged in sexual activity. Gawker maintained that it received the tape from an anonymous source whose identity is still unknown.

Hogan's claims against the Clems were brought in Florida state court on the same day he sued Gawker in the Middle District of Florida. In addition to the privacy and emotional distress claims, Hogan also sought relief for copyright infringement. He attempted more than once to enjoin Gawker from continuing to post the video clip in his federal case, but the district court denied both motions. Still, Gawker voluntarily removed the video portion of the article pending the outcome of the litigation.


After the sex tape was published, both Hogan and Mr. Clem made separate appearances on the Howard Stern radio show. Whereas Hogan denied knowing that he was being filmed, Mr. Clem told Howard Stern that Hogan had known about the camera the whole time. But, just days after the Howard Stern appearance, Mr. Clem changed his story claiming that Hogan was not aware of the camera's presence. Shortly thereafter, Hogan dropped the Clems from his state court suit, at which point Mr. Clem transferred his copyright of the videotape to Hogan.

Likewise, Mrs. Clem claimed in a taped deposition played at the trial that she had no idea that she was being videotaped during the tryst with Hogan. These claims were contradicted, however, by statements she made to the police saying that it was Mr. Clem's idea to videotape her encounter with Hogan and that Hogan was unaware of the camera's presence.

The First Amendment

Throughout the trial, Hogan's attorneys sought to show that, in posting the video, Gawker acted with a reckless disregard for his privacy, pointing to jokes about the tape made by editors in a private chat at the time. Gawker's attorneys, on the other hand, argued that posting the article and video was protected by the First Amendment, because it was a matter of public concern. They pointed to the fact that other publications had already broken news of the tape, and that Hogan had spoken openly about his family and sex life for years, including his book describing an affair he had during his marriage, and public discussions of issues relating to his marriage and sex life, as evidence of the tape's general interest and concern to the community.

Hogan sought to distinguish his real life persona from the wrestling character he portrayed with "artistic liberty." The separation between the attention-seeking celebrity Hulk Hogan and ordinary man Terry Bollea was the central theme of Hogan's case. When the sex tape was shot, the argument goes, Bollea, not Hogan, was the participant. Thus, it was Terry Bollea's reasonable expectation of privacy that was violated, not Hulk Hogan's.

But, No Copyright

Shortly after Mr. Clem transferred his copyright to the video to Hogan, Hogan amended his federal court complaint to include the copyright infringement claims against Gawker. The district court's December 2012 decision came in response to Hogan's motion for preliminary injunction to enjoin the infringement of his copyright in the videotape. The focus of the court's decision was on Hogan's failure to establish a likelihood of success on the merits of the infringement claim. U.S. District Court Judge James Whittemore ruled for Gawker, citing the Eleventh Circuit's recognition that "the balance between the First Amendment and copyright is preserved, in part, by the doctrine of fair use." According to the court, the three pages of commentary and editorial describing and discussing the videotape in a manner designed to comment on the public's fascination with celebrity sex in general amounted to fair use.

While commentators are worried about the chilling effect Hogan's victory could have on all media who report on public figures, Hogan's victory may be short-lived. Gawker plans to appeal immediately, and is confident that the appeals court will rule in favor of the company. The convoluted procedural history of the case appears to support Gawker's confidence. When Hogan dismissed his federal claims and added Gawker to the state court action, he asked state court Judge Pamela Campbell for the temporary injunction that Judge Whittemore had denied him. Judge Campbell granted Hogan's motion for an injunction, and Gawker appealed. A Florida appellate court overturned Judge Campbell's order on the grounds that the video was newsworthy and therefore Gawker's publication of it was protected by the First Amendment. To Gawker's attorneys, the appellate court's finding of First Amendment protection is an indication that it agrees with Gawker's legal arguments and will likely rule in Gawker's favor when the case goes up on appeal.

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