The Hulk Hogan trial against Gawker is a First Amendment analyst’s dream.  The lawsuit, based on Gawker’s publishing a video tape that includes nine seconds of Hulk Hogan engaging in sexual activity, presents the complex legal tension between privacy interests and free speech rights.  How society responds to the $140 million verdict a Florida jury awarded Hogan will both reflect and reinforce our views of what is untouchable, even by the media.  I plan to write several posts about this case.  This first post will discuss why Hulk Hogan’s verdict will likely be overturned on appeal.  The next post will explore whether the decision should be overturned on appeal, from both legal and policy perspectives.  Later posts will update readers on new developments and further implications of the case.

Hulk Hogan’s verdict will likely be overturned by the Florida District Court of Appeal, Second Circuit.  That court, in earlier overturning the trial judge’s grant of a preliminary injunction to stop the publication of the video before trial, already indicated its sympathies to the First Amendment defense.  The appellate court held that (1) Hogan is a public figure, as a wrestler and reality television star; (2) Hogan has already discussed his family and sex life in the media; (3) sexually explicit content does not nullify speech’s newsworthiness, (4) the posted video and commentary are linked to a matter of public concern; and, importantly, (5) Gawker carefully published only a small excerpt of the sex tape, not the entire thing.  Although a ruling on a preliminary injunction does not bind the Florida court of appeals now that it can view all of the evidence, the appellate court seems poised to disregard the trial court’s First Amendment decisions, all issued without full written orders.

The facts in this case are colorful.  Gawker Media, which runs a news and celebrity gossip website, published one minute and forty seconds of a thirty-minute video tape, provided to Gawker by an anonymous source.  Nine seconds of the posted tape depicted sexual acts between Hulk Hogan, whose real name is Terry Bollea, and Heather Cole, then-wife of radio personality Bubba “The Love Sponge” Clem.  Gawker also published commentary about the full thirty-minute tape.  Hogan asked Gawker to remove the video tape, and Gawker refused.  Hogan then sued Gawker for invasion of privacy, violation of the right of publicity, and intentional infliction of emotional distress.  Gawker moved to dismiss the case as a matter of law, arguing that the videotape and commentary were truthful and newsworthy and thus entitled to First Amendment protection.

The trial judge, Pamela Campbell, denied Gawker’s motions.  Instead of dismissing the case outright on First Amendment grounds, Judge Campbell allowed a jury to decide the viability of Gawker’s First Amendment defense.   Six jurors were thus responsible for deciding if the videotape was newsworthy.  The jurors ultimately awarded a whopping $115 million in compensatory damages and $25 million in punitive damages against Gawker, its owner, and the editor who published the tape.

Gawker will appeal this verdict and will likely win an outright dismissal of the case.  In American jurisprudence, the right of privacy is a weak foe against freedom of speech when the media is involved.  The importance of providing the public with truthful information generally trumps right of privacy claims.  The Supreme Court has held in previous cases that the media has a First Amendment right to publish the full name of rape victims, the identity of juvenile defendants, and defense secrets about the Vietnam War.   

Most relevant to this case, the media cannot be punished for publishing even illegally obtained information, so long as the media wasn’t involved in the illegal interception.  In Bartnicki v. Vopper, the Supreme Court held that a radio station had a First Amendment right to play an illegally intercepted call between the head of a teacher’s union and the union’s chief negotiator about threatening the school board to get better salaries for teachers.  The Court balanced the right to privacy (which can also foster speech) with the free speech rights at issue.  The Court held that a federal statute criminalizing publication of illegally obtained phone calls was unconstitutional, even if the government can punish the illegal interception in the first place.   (Notably, Bartnicki did not distinguish between the free speech claims of the radio talk show host and the rights of the non-media citizen who received the tape anonymously and provided it to the radio show.  Neither were involved in the unlawful procurement of the speech.)

Bartnicki thus held that even illegally obtained speech is protected, so long as it is newsworthy and the publisher did not illegally obtain the speech.  Thus, the fact that the Hogan video was offered to Gawker without Hogan’s consent does not nullify the First Amendment protections.  But Bartnicki involved speech which is generally considered far more important to public discourse than a celebrity sex tape.   So, as many commentators are predicting, the Florida appellate court may uphold Hogan’s verdict by distinguishing between publishing information about the sex tape and actually airing the sex tape.  Indeed, a federal court case cited in the concurrence in Bartnicki held that the discussion of a celebrity’s sex life was newsworthy even if publication of the actual sex tape was not newsworthy.  This distinction would be legally unsatisfying (given that the First Amendment does not distinguish among media) were it not for the fact that sexually explicit speech is entitled to lesser protection.

The Florida appellate court has already made a different distinction, however, and Gawker is likely to win on appeal.  In its ruling overturning Judge Campbell’s granting of a preliminary injunction, the appellate court distinguished between the dissemination of an entire sex tape and publication of brief excerpts of the tape with commentary.  See Gawker v. Bollea, 129 So.3d 1196 (Fla. Dist. Ct. App. 2014).  The state appellate court cited to a federal court that came to the same conclusion in a previous iteration of Bollea v. Gawker.  Because a preliminary injunction is a prior restraint on speech, the Florida court of appeals used a legal standard more friendly to Gawker than it will apply after the trial, but the appellate court appears more sympathetic to Gawker’s First Amendment arguments than both Judge Campbell (who is elected and is now known for striking a blow against the media) and the jury.  In addition to overturning Judge Campbell’s granting of a preliminary injunction, the Florida court of appeals also reversed an order allowing certain pieces of evidence in the case to be filed under a protective seal and not available to the media.

If an appellate court instead decides that the First Amendment right is not clear enough to dismiss the case as a matter of law, the Florida court of appeals may remand for a new trial where Gawker can advance its First Amendment defense using evidence that was excluded from the trial.  At the very least, the jury award will likely be diminished.  The jury’s award is likely based, at least in part, on Hogan’s lawyer’s demonization of a New Year-based company and its “shameless” values. Appellate courts routinely reduce large jury verdicts, although an award of even half the current size would be a substantial chunk of Gawker’s value.

First Amendment scholars and commentators have divided on whether the verdict in this case will seriously undercut First Amendment freedoms of the press.  In my next post, I will tackle how courts should set the balance between privacy rights and free speech in the lawsuit between Hulk Hogan and Gawker.