Tuesday June 30th, 2015

Terry Bollea, better known by his ring name, Hulk Hogan, has been captured on video thousands of times in his near 40-year career in professional wrestling and entertainment. Video has helped make the 61-year-old Florida resident a multi-millionaire and, with his trademark long hair, mustache and bandanna, a recognizable celebrity.

But not every video has been to the Hulk’s liking. For the last few years, Hogan has filed multiple complaints in federal and state courts to prevent Gawker Media from showing one particular video: a video of a fully-naked Hogan having sexual intercourse with Heather Cole, the wife of radio host and Hogan’s close friend Bubba the Love Sponge Clem, in a bedroom in 2006. Gawker obtained the video and posted an edited version of it online in October 2012.

The video has reportedly been seen more than 2.5 million people. Hogan doesn’t want anyone else to see it and has sued Gawker along with Cole and Clem, with whom he later reached an out-of-court settlement. Hogan is set to go trial against Gawker on July 6 in the St. Petersburg (Fla.) courtroom of Circuit Court Judge Pamela Campbell.

Hogan’s core arguments

Hogan and his attorneys have raised various legal theories to prevent the public from seeing the video, which Gawker took down in 2013 after Judge Campbell issued a temporary injunction against the media company (an appeals court later reversed the injunction). He has argued that the video, which was taken while Hogan was married, was made without his knowledge or consent and that it “grossly invaded” his right to privacy. Hogan has also claimed that the video’s publication has caused him “substantial emotional distress, anxiety and worry.” Further, Hogan insists that Gawker—which is free but, like most media sites, sells ads—misappropriated Hogan’s right to publicity by using his name, image and likeness for commercial gain.

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Hogan hopes to persuade all six of the Florida jurors who will be empaneled for his trial that Gawker has caused him $100 million in damages. But he’ll need to do so as Terry Bollea and not the Hulk. Judge Campbell recently ruled that Hogan cannot appear in character or be identified as Hulk Hogan. In an apparent compromise, Judge Campbell has allowed Hogan to wear a bandanna, albeit a plain one and not one exclaiming Hulkamania, while in her court.

The First Amendment and its relationship to sex tapes

Although jurors are hard to predict, Gawker appears well positioned to prevail in the trial. Gawker’s strongest argument is that the First Amendment protects media companies in the reporting of news and that courts have broadly defined what counts as “newsworthy” and “of legitimate public concern.” The First Amendment safeguards our open society and allows media to report on stories that some would prefer be kept confidential.

Courts are extremely skeptical about “prior restraints,” which refer to judicial orders that suppress the publication of news because of concerns the news would be damaging or defamatory. Even when matters of national security are implicated by news stories, prior restraints tend to be frowned upon by judges because they run afoul of First Amendment protections. This was most famously observed in the so-called Pentagon Papers case (New York Times Co. v. United States) when Justice Potter Stewart of the U.S. Supreme Court wrote that a prior restraint is only allowed when news would “surely result in direct, immediate, and irreparable damage to our Nation or its people.”

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News stories, moreover, do not have to be about weighty topics to be accorded First Amendment protection. Stories about celebrities and—yes—athletes are as protected by the First Amendment as are stories about international affairs and policy reforms. Along those lines, while critics of Gawker might dismiss it as a gossip website, for purposes of the law Gawker is clearly a media company engaged in the distribution and commentary of news items. This was apparent in Gawker’s 2012 post that featured the sex tape. While the embedded video of Hogan having sex surely drew Internet traffic, the accompanying post featured a 1,400-word commentary about the video and what it signifies.

Gawker is thus distinguishable from entertainment companies that have lost “sex tape” lawsuits. In 1998, Poison lead singer Bret Michaels defeated Internet Entertainment Group Inc. in a case involving a sex tape of Michaels and Baywatch star Pamela Anderson. Michaels won a permanent injunction in part because Internet Entertainment Group was clearly not in the news business; it was a subscription-based website for the distribution of pornography. The Michaels sex video was also shown to subscribers in its entirety. This is a key distinction for purposes of when a video counts as news under the law. Gawker edited the Hogan video from 30 minutes to less than two minutes in order for it to be more newsworthy.

Hogan’s personal life less protected by law due to his celebrity and voluntary disclosures

Gawker will also argue that the degree to which a person in a sex tape is a public figure and voluntarily makes his personal life a matter of public concern are crucial factors under the law.

Hogan is clearly one of the world’s most recognizable wrestlers and is one of the main reasons for WrestleMania’s popularity as a pay-per-view broadcast. In fact, he once boasted, “I’m the man that made wrestling famous.” According to IMDb, Hogan has also appeared as an actor in 134 videos and films, ranging from classics like Rocky III and Muppets in Space to not-so-classics like Suburban Commando and 3 Ninjas: High Noon at Mega Mountain. Hogan also licensed his name, image and likeness for the Xbox 360 game Hulk Hogan’s Main Event. There is no doubt about Hogan’s fame among a wide spectrum of age groups and across demographic categories. While celebrities do not lose their privacy rights by virtue of their fame, they are expected to accept some downsides of their fame: The public may become interested in their personal lives.

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In Hogan’s defense, even the private sex scene of a well-known celebrity should not automatically be viewed as a matter of public interest. The problem for Hogan, Gawker will argue, is that he has turned his personal life into a core feature of his public persona. Hogan, along with his then-wife Linda Hogan and two children, starred in the VH1 realty television show Hogan Knows Best, which aired 43 episodes between 2005 and ’07. Like other reality TV shows, Hogan Knows Best featured family members displaying their everyday lives while at home. Hogan later claimed Hogan Knows Best featured “soft scripted” scenes, meaning the family’s interactions were—like professional wrestling—based on a loose plot rather pure reality. Still, Gawker has a persuasive argument that Hogan has voluntarily made his personal conduct a matter of public interest.

Also damaging to Hogan’s case is Hogan’s 2009 autobiography, My Life Outside the Ring. In it, he discusses his marital infidelity. A video of Hogan being unfaithful would seem relevant to his book’s admission. Hogan has also conducted interviews in which he has discussed his romantic life, which has been a source of media interest long before Gawker published the sex video in ’12.

Lastly, according to Poynter, Gawker is tentatively set to receive additional sex videos of Hogan and Clem in which a third party can be heard speaking. The videos were obtained by the FBI in an investigation into an attempted sale of one of the sex tapes. Gawker might be able use the tapes to argue that Hogan knew he was being videotaped in contradiction of his pleadings in this case.

Hogan may struggle to prove he has been financially harmed by the sex video’s publication

Even if Hogan prevails on the legal arguments, there’s no guarantee he would be awarded $100 million in damages or even $1 million. Hogan would need to establish that the video published by Gawker has impaired his earnings and endorsement opportunities or caused him compensable emotional harm. Gawker would surely contend that Hogan does not appear financially “hurt” by publication of the sex video. Since the video’s publication in 2012, Hogan has appeared in various films and video games. He is also set to appear in WrestleMania 32 next April. It doesn’t seem as if the Hulk is slowing down in terms of celebrity earnings.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. In the fall 2015 semester, he will teach an undergraduate course at UNH titled “Deflategate.” McCann is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and he will teach “Intellectual Property and Media in Sports Law” at the 2015 Oregon Law Sports Law Institute.

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