Mimesis Law
20 September 2017

Gawker’s Lawyer Meets Hulk Hogan’s Neighborhood

Mar. 3, 2016 (Mimesis Law) — Gawk: ɡôk/verb

Stare openly and stupidly.

The name of the publication was not chosen at random.  Gawker is, perhaps, the most appropriate name for an Internet publication possible, and one thing you can’t say about Nick Denton is that he holds his publication out to be something it’s not.  It’s lurid, salacious, shallow and titillating. And it’s pretty damn good at what it does.

But even a publication of such low-brow virtues is entitled to freedom of the press, because this is America.  And indeed, when Terry Bollea, who markets himself as Hulk Hogan, tried to get a federal judge to enjoin Gawker’s publication of a short segment of a sex tape, of Bollea having sex with his best friend’s wife, he was smacked down hard.

Judge James D. Wittemore, Middle District of Florida, left little doubt as to the merits of Bollea’s claim.

Plaintiff has failed to satisfy his heavy burden to overcome the presumption that the requested preliminary injunction would be an unconstitutional prior restraint under the First Amendment. Plaintiffs public persona, including the publicity he and his family derived from a television reality show detailing their personal life, his own book describing an affair he had during his marriage, prior reports by other parties of the existence and content of the Video, and Plaintiff s own public discussion of issues relating to his marriage, sex life, and the Video all demonstrate that the Video is a subject of general interest and concern to the community.

In other words, as unseemly as it may be for Gawker to post Bollea’s sex tape, and as much as most of us would pay good money not to see it, Hulk Hogan got the publicity he asked for, and Gawker, tawdry though it may be, was protected by the First Amendment.

Problem solved?  Not even close, as the parties are picking a jury in Tampa. Not in federal court, where Bollea found out that his $100 million claim of damages wasn’t well received, but in state court.

How is that possible?  Home field advantage.  Have you ever seen a litigant in a courtroom wearing a shmata on his head?
hogan

Protip: Don’t try this in court, kids, unless you’re Hulk Hogan in Tampa. It will not turn out well for you.

Apparently, Bollea is quite the local hero. A celebrity, who has been kind to his community, he has his admirers in Tampa. Not the least of whom is the judge at his trial, Pamela Campbell. Sound familiar?

Even the judge, Pinellas-Pasco Circuit Judge Pamela Campbell, has had her own brush with celebrity. She is perhaps best known as the attorney for the parents of Terri Schiavo, the brain-damaged woman whose St. Petersburg family fought against the removal of her feeding tube, igniting a national debate over life and death. Former Gov. Jeb Bush, who intervened in the case on Schiavo’s parents’ behalf, later appointed Campbell to the bench.

But given the facial issue of law, the First Amendment implications of Gawker’s airing a sex-tape of a cartoon character celebrity who has never been shy about lauding his sexual abilities, what’s the issue of fact to be tried?

That’s hard to say.  Despite a monstrous motion to suppress, substantial memoranda, Judge Wittemore’s decision and lengthy argument, Judge Campbell swatted it aside with a curt “denied” from the bench without explanation. So rather than a decision on the law, there will be a trial.

Apart from a judge’s ruling that Hogan go by his real name, Terry Bollea, the trial has the makings of a choreographed fight.

Jurors will be shown the sex tape, though it will be off-limits to the press and the audience in the courtroom. And Bollea, 62, who is expected to testify, has received the judge’s permission to wear a “plain bandana” to court, a toned-down version of his signature Hulk Hogan costume.

What judge isn’t inclined to let a litigant wear his clown costume in court?

Yet, for all its theatricality, the case centers around straightforward questions about a celebrity’s privacy rights.

According to Bollea’s attorneys, the video is not and was not newsworthy when Gawker published it. In court filings, they have described Gawker’s actions as “outrageous, irresponsible, and despicable,” the work of a news organization so consumed with Web traffic and viral videos that it blatantly flouted the law.

“If Gawker can pull off things like this, nobody has privacy anymore,” Bollea attorney Charles Harder said in an interview last year. “It could create a whole industry of peeping Toms and a whole industry of people willing to publish peeping Tom videos.”

Of course, Hulk Hogan isn’t exactly “nobody.” Most people don’t have to worry about sex tapes with their best friend’s wife being published by Gawker. Not only because most people don’t have sex with their best friend’s wife, but because they don’t build their post-faux-wrestling career on their virility.

Gawker’s attorneys say Bollea’s claims are unjustified, coming from a celebrity who has repeatedly made his sex life a matter of public interest. Aside from discussing it in his two memoirs and his reality TV show Hogan Knows Best, he has talked about it in lurid detail on Howard Stern’s radio show.

Will anyone applaud Gawker’s excellent taste and judgment for posting excerpts of Bollea’s sexual prowess? Hardly. But this is Gawker, and this is Hulk Hogan. As disgusting as the tape might be, there is no doubt that the First Amendment protected its publication.

Except maybe in Tampa. After all, there’s no place like home.

7 Comments on this post.

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  • dm
    3 March 2016 at 5:02 pm - Reply

    Oh well, I guess appointed judges aren’t necessarily better than elected judges. But, then again, it’s Florida.

  • Aaron
    3 March 2016 at 7:55 pm - Reply

    And I was wondering whether or not Hulk Hogan might have a place in the Trump administration before I heard of this. Now it’s a no-brainer.

  • Did Gawker Cross Hulk Hogan’s Line?
    10 March 2016 at 9:33 am - Reply

    […] speech, there is no basis upon which a jury can find they crossed the line.  And the question of why there’s even a trial remains a […]

  • A Free Press And The Ickiness of Newsworthiness | Simple Justice
    18 March 2016 at 2:47 pm - Reply

    […] the Hulk v. Gawker trial, the one that should have never been, winds toward a verdict, the New York Times’ Room for Debate goes two against one (you could […]

  • Hulk v. Gawk: A History of "Creative Control" – Mediation is Dead
    19 March 2016 at 3:22 pm - Reply

    […] can’t sue them in Federal court for defamation, so the case gets in front of a Tampa jury, where Hogan is a local celebrity, […]

  • Gawker Gone, A Eulogy | Simple Justice
    19 August 2016 at 7:11 am - Reply

    […] would have folded up their tent, having been twice crushed by federal judges holding that their suit failed to survive First Amendment scrutiny. But not Bollea, who had Thiel’s support and money behind […]

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    7 January 2017 at 9:08 am - Reply

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