Hulk Hogan V Gawker, My Thoughts

This started out as a comment but as I wrote it it came to me  that maybe it should be a post…So here it is.

Obviously this is a topic that is of interest to me and in all honesty the best commentary I have read on it has been right here in the comments on mikesouth.com.

I hold the first amendment in very high regard but I also hold the right to privacy in very high regard and in some circumstances I think that the aforementioned right to privacy trumps the first amendment, and this case may well be one of them. I haven’t followed this until the verdict so I have some conflicted opinions and am honestly not too sure about some of it at the moment.

I can say this… If I had gotten hold of that sex tape, my first call would have been to a really good attorney someone I trust and someone good, like JD Obenberger or Marc Randazza.

In the end though had they told me that I would be safe running it the big question is do I run it? In this case my answer would have been no, and some of you probably know that I was faced with a very similar situation last year.

For me there would have to be a compelling reason to run it, say John Doe KNEW that he had HIV and this tape proved that he was having unprotected sex with girls who he did not tell that he had HIV then I have a compelling reason why privacy doesn’t trump first amendment.

Put another way, when a performer gets HIV or HEP C or another STD I am always faced with a dilemma, that being does his/her right to privacy trump the right of fellow performers to know that they were exposed. I don’t think it does and that is why I contact the performer and say look come forward, do the right thing by your fellow performers and I will back you up, if you choose NOT to come forward I will out you, take a day and think about it if you need to but people have a right to know if their health has been compromised.

It is a situation that I absolutely HATE to be in, but in the end I have to do what I think is right.

Back to Hogan and Gawker, I am just not sure what the justification is on Gawkers part, I know that tomorrow Gawker founder Nick Denton will be telling his side and I am interested to hear it.

I just intended this to be a comment but it occurs to me that maybe it should be a post. As always if anyone wants to present an alternative view I am more than happy to run it, just email it to me or post it here and let me know you are OK with my running it front page and crediting you.

Thanks Y’all you really are the best and I am lucky as hell to be in such esteemed company…Y’all are smart and articulate and I appreciate the opportunity I have to learn from ya!

22 Replies to “Hulk Hogan V Gawker, My Thoughts”

  1. LurkingReader

    Yer a brave man inviting alternative views….I still say publishing a performers name and health diagnosis without their consent is an invasion of privacy. Say what you will in private most of it disappears like a wisp of wind but once it’s posted on the Internet it’s not going away.

    Posting a name or marking a performer with a Hester like scarlet X does little more than put a face to a risk feared and may give a false sense of security to a performer most at risk. They flock here posting questions like who is it…do I need to test…how did they get it…who gave it to them? With no clue how to assess their own activities to determine whether a test or some other medical evaluation is appropriate for them.

  2. joeschmoe

    I can see why Gawker lost and I do not like the idea of people being secretly taped and having it shown to the world.

    In saying that, this never was about the sex. The thing that hit Hogan hard (and cost him his job at WWE and several endorsement deals), were the racist comments he made to Heather during the sex tape. I don’t think anyone cared about seeing him naked and he kept his job and most of his endorsements even when the sex came out.

    I did find it quite interesting, that the racist stuff has blown over so fast. All of the mainstream media reporting this judgement, are not mentioning those things. Hogan seems like a teflon man in many regards. It is quite a comeback to make comments like that and be a hero again so soon.

    I guess Gawker appeals and the judgement is reduced, or they just negotiate something on the side with Hogan. He certainly will not get this kind of money. It is a hard message though to all of these scummy media types.

    An interesting side note if this does go through an appeal….. one of Hogan’s hammers here was he didn’t know he was being taped. Bubba has given two different statements under oath, one saying Hogan didn’t know he was being taped, and one saying Hogan DID know. Bubba fought hard to not have to testify here because he has purjured himself in one of those statements and would have to admit that if appearing in court. He actually said he would invoke the 5th if called to testify and as we know they didn’t bother to bring him into this case. An appeal may take another shot at getting him in because I assume Gawker still takes the position Hogan knew he was being taped.

    Quite a story!

    PS – Mike, as for your “john doe” who didn’t tell his partners he had HIV…. if you have a tape of this backing that up… that was a tough call not to run the story. I don’t know what to do about that one because partners deserved to know and it is a criminal act in many places. (if you did run it then I guess I missed it, I am assuming you didnt)

  3. BT

    I’ll go back to my surgeon general’s warning, which is that I did not follow this case, so just reacting to what’s presented here. At this point, it sort of doesn’t matter what the media exec says – the courts ruled. Presumably, they gave their best defense in court. Now, they need to appeal and allow the process to play out. More or less, anything he says at this point will just hurt him and not help him.

    Beyond that, again based on what I’ve read here, this is an example of the First Amendment and the Right To Privacy working as they should.

    The First Amendment was not infringed at all – Gawker decided to go out on a ledge and publish a celebrity sex tape and no government authority stopped it.

    The Right To Privacy was enforced – again, I don’t know if Hulk Hogan knew he was being taped or not, but, his case in court apparently was that even if he allowed a partner to tape him in an intimate act doesn’t mean that he wants the whole world to watch him in the act. The jury bought that argument and told Gawker that in this case it went too far.

    Having spent the last 35 years of my life working in the media in one way or another, I’m a firm believer in the First Amendment and the public’s right to know – where the public has a compelling interest. Being allowed to watch a celebrity having sex is not a compelling interest, even if there’s curiosity. Everyone, even celebrities, has a right to some level of privacy.

    The next time Gawker is handed a sex tape, however, it’s still free to publish – the First Amendment was not infringed in this case.

  4. Karmafan

    You would be hard pressed to find 10 white people in the US that have not had a racist thought (or said the N word) at some point in their lives. Especially when they thought they were in private with close friends.

  5. LurkingReader

    @BT

    “I am now convinced that Hulk Hogan was unaware of the presence of the recording device in my bedroom,” Clem said. “I am convinced [Hulk Hogan] had no knowledge that he was being taped…It is my belief that Hulk is not involved, and has not ever been involved, in trying to release the video, or exploit it, or otherwise gain from the video’s release in any way.”

    Bubba read that on his radio show in late October 2012 as part of the court approved sealed settlement against him & his wife. IIRC Bollea initially got an injunction pending outcome of the trial with Gawker to remove the tape which was appealed and denied on First Amendment grounds. Even if Bollea won the court is limited to imposing monetary damages they can’t force Gawker to remove the tape.

    This lawsuit was initially against Bubba & his wife before they settled Gawker was added to it. I think Gawker played with fire and got burnt by their playmates.

  6. BT

    Well, theoretically you are correct that the court is limited to imposing fines because of prior restraint. However, having been found guilty of an invasion of privacy in a civil suit, any media company that kept republishing the thing is asking for huge trouble on round two. For one, its insurance carrier would not cover the case, so they’d be completely exposed. For another, I can’t imagine the next jury that wouldn’t make them really pay for audacity, if nothing else.

  7. LurkingReader

    @BT

    Now I’m intrigued…hadn’t considered the insurance on appeal stuff but did think one of the reasons the invasion of privacy damages can be so high is that once it’s out there..it’s out there. If Gawker is trying to make a stand for meda rights I can see them going for broke. If the appeals court let the verdict stand, they could still argue the jury awarded per view rate damages award was too high and come out ahead with more views and a lower rate? Though that wouldn’t endear an appellate court into considering a reduced punitive damages award.

  8. BT

    No media company operates without insurance specifically for this kind of situation because they are sued all the time. I would be flabbergasted if Gawker had not run this by their corporate counsel and their corporate counsel had not run it by their insurer before they ever posted the tape. That is just the way media organizations work.

    However, having just lost a lawsuit with a huge judgment, I would also be shocked if Gawker decided to repost it – I cannot imagine the insurance company that would cover them twice for the same act when they know the probable outcome in advance. That would just be negligence and corporate stupidity.

    Gawker will appeal this because they must, and they should. If you’re a media organization, you always have to fight the good fight even if its a losing battle. In addition, they already spent the big bucks – the appeal is not nearly as time consuming or costly as the trial. If the appeal is successful, Gawker could overturn the verdict or, at the least, get the damages reduced. They would be negligent if they didn’t appeal.

    That said, in front of an appeals court they are not going to argue whatever it is that Gawker’s publisher is going to tell the public – that’s for show and presumably, the organization already made that argument in front of the jury and lost.

    In an appeal only one thing matters: Did the trial judge make a ruling during the trial that was plainly wrong under the law and led to the wrong verdict and damages against Gawker. Related, Gawker will argue that even if the appeals court finds that the jury’s verdict was within the limits of the law, the size of the judgment is out of bounds.

    At this point, that’s all that matters, no matter what some joker from Gawker says in front of the TV cameras. That’s for show.

  9. LurkingReader

    So that’s a NO on uninsured publishers coverage/premiums? Still annoys the hell out me that we get charged ‘uninsured morotist’ premiums 😉

  10. bfi

    Always interesting to read non-lawyers give legal judgments, and even misstate facts. First Amendment means anyone can argue just about anything of course. Gawker did pull the video but left the article up, so its not likely they’d repost the video at this stage. Pulling or not pulling the video is immaterial, it was the original publication of the video that Bollea sued about. Gawker may not even have any money left to continue to operate; a portion of it was sold just to raise money for trial. I understand Gawker said they’d be sticking to political news, no more entertainment or wrestling videos. Old modeling pictures of Mrs Trump perhaps?

  11. LurkingReader

    @bfi

    Oh crap I hope I’m not gonna owe too many wooden nickels at next family reunion. Damn lawyers are ruthless collectors and they make no allowances for unedumecated homemakers…then again we don’t hesitate to tease them when our crystal ball makes a mockery of all their carefully honed skills. 😉

    I think gawkers shift in coverage is related to the short term capital they raised or appeal commitments. Which Mrs. Trump?

  12. BT

    Not sure if the reference to non-lawyers giving legal judgments, and even misstating the facts, refers to me, but if so, let’s be clear.

    I have stated from the outset that I have not followed this case. So, with regard to what Gawker did or did not do, or Hulk did or did not do, I said from the outset buyer beware.

    With regard to pulling or not pulling the video, this non-lawyer has been a working journalist for 30 years and have been sued for libel on four different occasions, including one that went to a 6 week trial in federal court, and I’ve worked as a consultant on First Amendment cases involving the media to two law firms. Not a lawyer, but this is what I know because it was an issue in one of the suits against me and in one of the suits I worked on as a consultant.

    Every republication of a libelous or defamatory article is considered a new publication under the law. What’s more, the clock that gives a potential plaintiff time to file a lawsuit begins ticking anew with every republication. How do I know this? Because in 1989, I covered a very high-profile trial where one of the parties was a very litigious individual for a national magazine. The litigious individual sued me ……. on about day 370 post publication, missing the one-year statute of limitations in the jurisdiction where that individual lived and sued. Case dismissed, right? Not so fast. The publisher quoted a paragraph from the original article on its letter to the editor page two months later. The plaintiff re-sued based on the re-publication of that paragraph, which was within the time limit. Got that dismissed. But, not so fast. The original publisher sold the reprint rights to a smaller publication that had re-published the article 6 months after the original to a much smaller, regional audience. Plaintiff sued one final time over that one and it was allowed to go forward – it was later dismissed, but for completely different reasons.

    So, if Gawker were to repost the original video, it would be a new publication that would allow Hulk to sue all over again. If Gawker gave permission to another outlet to republish its material, Gawker remains responsible for the original content as does the other outlet and …. it is considered a new and separate publication. That is the law.

    Second, you are correct that pulling or not pulling is immaterial to the appeal. I stated as much in my post. You do not get to re-litigate the facts in an appeal. You had your chance in court and appeals courts give great deference to the verdict.

    What you re-litigate in an appeal is the law – did the judge make any rulings that were so boneheaded as to be plainly wrong under the law or is the jury verdict so outrageous as to be wrong under the law. That’s what will be at issue in the appeal, despite any appearances by Hogan or Gawker on Good Morning America.

    Not pulling the video so that it is viewed by a whole new set of viewers, reposting the video or allowing another news organization to post the video is absolutely material because it constitutes new publications and would open up Gawker to another lawsuit.

    That, my friend, is the law – even from a non-lawyer.

  13. MikeSouth

    BFI you are probably not accustomed to adult forums with the level of expertise you will find here…see I KNOW who some of these people are and I can assure you they are imminently qualified to speak on the subjects. Indeed some are armchair quarterbacks, others are certainly NOT. Thats the beauty of the comments here, and quite often even those who may not be professionals on the topic at hand have a good common sense point of view and we all benefit from everyone else…Its a great environment and I have learned much here, I expect you will too…stick with us. What you generally will not get here is the self serving propaganda from the FSC and others…matter of fact next week my readers are going to learn about ASACP not ASCAP the music people, but the XBiz program against child porn…I mean who can argue that is not a good thing right? Stay tuned….

  14. MikeSouth

    funny thing is I have at least 3 lawyers who read this site daily once in a while they will post, but really we arent a legal forum anyway, its relevant to express our opinions and prognostications and then compare them with the end result…I mean who doesn’t have an opinion on O J Simpson for example.

  15. LurkingReader

    Looking forward to what’s coming. ASACP recently celebrated twenty years …and got the FSC/stakeholders code of ethics ball rolling with RTA label stickers. anyone wonder where they’re making their reports to? Missing Kids recognizes hundreds of partners listed but no ASACP …hmmmm

  16. BT

    By the way, meant no disrespect. Heck, I know your comment wasn’t directed at me, Mike, but let’s face it – calling me an arm chair quarterback would be fair. I ain’t a lawyer, admittedly.

    That said, every legal call I made on this site regarding Vivid versus LA County happened as predicted, for the reasons outlined in the prediction. And if there is one thing I do know, it’s the media.

    As to OJ, I’m watching the FX mini-series. If the glove don’t fit (only kidding).

  17. LurkingReader

    @BT

    A lawyer who’d argued education/disability cases in state, federal, appellate and SCOTUS told me I was wrong the district had to have someone authorized to admin meds…504 says so. Once Hillsborough adopted the policies in our district he realized he was wrong. He asked to co-counsel, I said GFY. His colleagues made him eat serious crow and LOL with him when I chewed up their pro bono research pups and sent them back w tails between their legs. Doesn’t matter how much law they knew if they didn’t understand the significance of six altered documents and the fact that I had before and after copies. We got everything we wanted the day before the district got their summary judgement…applying ADA to minors in the care/control of school who wouldn’t let them self admin meds and didn’t provide anyone authorized to admin meds as prescribed. When I explained why I wouldn’t give bigshot my documents he knew it wasn’t GFY retaliation taking his golden ticket back to SCOTUS away.

    No wooden nickels for him he still writes big checks to the charity 😉

  18. MikeSouth

    BT…brother I know you meant no disrespect and I was pointing out to bfi that this isn’t like adultdvdtalk here LOL I LOVE you guys and if bfi is who I think he is he fits in here, he is old school and respectful to the girls and yada yada….I didn’t want him or anyone else to make the mistake of thinking that you guys are the typical commenters….Truth be told if not for the quality of the discussions around here I would probably have thrown in the towel by now but everyone here, even when they disagree always leave me in awe of the people I have attracted to this blog….most of them dont comment but I get a call almost every single day from someone in mainstream, whose name I recognize or whose company I recognize tell me they read my site every day…I dont want to sound like I am bragging on myself, Im not…im braggin on y’all….

    Hope ya all have a great weekend!

    Love you long time

    Mike South

  19. MikeSouth

    You may not be a lawyer but truth is you are way more qualified to speak on this topic than most lawyers…remember some are real estate attorneys…nothing wrong with that but they wouldn’t have your first hand expertise on first amendment civil law.

  20. MikeSouth

    Lurk sometimes even I have a hard time following your train of thought but I will tell anyone I never ever want to have to be in an adversarial situation with you LOL….You are what they call in Washington a “policy wonk” and should I ever be anointed King You WILL be my policy advisor HA!

  21. LurkingReader

    Your majesty I’d have to respectfully decline on account of I’d surely piss you off. Besides then I’d have to juggle policy that I’d rather leave to the court jester. Policy is always adversarial …Pro vs Con and everything between the two extremes caught up in the process.

  22. Ivy

    ST. PETERSBURG, Fla. — A judge [Judge Pamela A. M. Campbell of the Sixth Judicial Circuit Court of Pinellas County] agreed on Monday to release a trove of previously sealed documents related to the Hulk Hogan sex tape trial against Gawker Media…In addition to the Tampa paper, The Associated Press, CNN, First Look Media Journal Broadcast Group and Scripps Media fought to have the documents released.

    http://www.nytimes.com/2016/04/12/business/media/gawker-hulk-hogan-trial-documents.html