Does a video of a fully naked Hulk Hogan having sexual intercourse fit within your definition of news? You answer is probably no. In fact, you might even regard such a video as offensive, inappropriate and tasteless.
The law, however, might regard such a video very differently. What legally counts as “news”—and thus the type of content that the First Amendment protects from censorship—lies at the heart of a $100 million lawsuit brought by the 62-year-old Hogan against Gawker Media. The lawsuit is being tried this week in front of six jurors (and three alternates) in the St. Petersburg, Fla., courtroom of Circuit Court Judge Pamela Campbell. For Hogan to prevail, all six jurors—four of whom are women—must find that he proved his case with a preponderance of evidence, meaning more probable than not.
During the trial, Hogan must go by his real name, Terry Bollea. He is also barred from wearing his signature “Hulkamania” bandana and other apparel associated with his much more famous stage name. Mr. Bollea, as jurors know him, has been the key witness in a case that originates in 2012, when Gawker obtained, edited and posted a 2006 video of a then-married Hogan having intercourse with Heather Cole, the wife of Hogan’s friend Bubba “the Love Sponge” Clem. Reportedly more than 2.5 million people have seen this video.
Hogan, of course, is no stranger to be seeing by millions of people, as he is arguably the country’s most recognizable professional wrestler and is a bona fide celebrity. To illustrate, Hogan has been an actor in 135 videos and films and a licensed figure in multiple video games and toys.
Hogan’s case is premised on a straightforward argument: Because the video was taken without his knowledge and consent, and because it captured a decidedly private activity in a bedroom, his privacy was unlawfully invaded. This is a fairly compelling argument so long as jurors believe that Hogan played no role in the video’s creation and distribution.
Hogan further insists that Gawker, by posting the video, misappropriated his right to publicity, which protects his persona—including his name and image—from commercial exploitation. Given the considerable Internet traffic Gawker received after posting the video, the company probably generated substantial revenue from it. Worse yet, Hogan contends, Gawker caused him massive psychological and reputational damage. In his testimony this week, he claims to have suffered several emotional distress and also says he felt “completely humiliated” by the video, adding that the video is “still tearing me up.” Gawker removed the video in 2013 after Hogan obtained a temporary injunction, but an appeals court later reversed the injunction.
Gawker’s defense is based on several points. First, courts have repeatedly adopted a broad definition of “news” as protected by the First Amendment. So long as a “news” story concerns a matter “of legitimate public concern,” it is normally permissible for a news company to share. Even if some might view the video of Hogan as garish and as violating his reasonable expectations of privacy, there was clear public interest in seeing Hogan, as evidenced by the sizable Internet traffic.
The public’s interest in Hogan’s video is not unusual for this celebrity. Hogan, for his part, seems to embrace the limelight and the public’s fascination with him. Recall how he and his family starred in the VH1 reality television show “Hogan Knows Best” from 2005 to '07. Hogan also invited the public to learn about his sex life in his 2009 autobiography, My Life Outside the Ring, in which he detailed his unfaithfulness as a husband. The more Hogan makes his private life a public matter, the harder it is for him to claim a compelling privacy interest.
During the trial, Gawker’s attorneys have called attention to Hogan’s welcoming of public interest in his sex life. On cross-examination, Hogan was asked why, if the tape is such an uncomfortable topic for him, he would answer radio host Howard Stern’s questions about it. Hogan responded that he was in character as the Hulk when speaking with Stern, whereas as Bollea, he was suffering on the inside. It’s not clear if the jury will be persuaded by such a distinction.
Gawker’s defense is strengthened by how it added a “news” quality to the Hogan video posting—for instance, a 1,400-word story accompanied the video, thereby giving the posting more of a news story flavor. The company also edited the video’s length down from 30 minutes to a couple in order to remove the less interesting aspects. These moves suggest that Gawker shaped its coverage of the posting with the company’s readership in mind, which is consistent with how news companies operate.
Gawker also feels emboldened by the fact that courts normally reject petitions to stop the publication of news. In a famous U.S. Supreme Court decision, New York Times Co. v. U.S., Justice Potter Stewart reasoned that courts should steer clear of banning news unless it would “surely result in direct, immediate and irreparable damage to our Nation or its people.” Millions of people watching video of Hulk Hogan having sex is perhaps not especially good for the Nation, but it wouldn’t result in direct, immediate and irreparable damage, either.
The challenge of proving damages
Should Hogan establish that Gawker broke the law, he would be positioned to obtain monetary damages from the company, but he would face a difficult path proving that he suffered anywhere near $100 million in damages. The topic of damages attracted considerable attention on Monday when a jury awarded ESPN reporter Erin Andrews $55 million for emotional suffering caused by a peeping tom and a negligent hotel. For his part, Hogan has testified to suffering emotional harm, although his willingness to talk to Stern on the air about the video likely won’t help to convince jurors of the seriousness of that harm. It is also unclear if the video has hurt Hogan’s career, given that he continues to appear on screen.
Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He also created and teaches the Deflategate undergraduate course at UNH, serves as the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and is on the faculty of the Oregon Law Summer Sports Institute.