Hulk Hogan vs. Gawker Lawsuit

[sek69]

Basically Hogan's team wanted the story and the video pulled, which was bullshit because the story was legit news, Gawker got too cocky and kept both the story and video (which had they pulled the video, would have made the following lawsuit moot). Gawker has grounds for appeal since there are recordings of Hulk talking about the tape with Bubba and he's clearly only worried that the racist stuff was on there.

[Al]

I think the "they had it coming anyway" is a dangerous attitude when it comes to the application of law, which can lead to miscarriages of justice taking place. If "stronger regulation on the paparazzi portion of the media" is necessary in the United States then that really needs the law to be changed or a Supreme court ruling that clearly defines the limits of the First Amendment.

For a case of this nature to reach the Supreme Court it has to go through a lower court first. Should it move through the appeal process as we expect, this may well become a Supreme Court case eventually.

[Cross Face Chicken Wing]

Main lesson in all of this: Never underestimate how much people hate the media, even if they're not entirely sure what "the media" even means and can't fully articulate why they hate it so much.

 

Your organization is in hot water for something? Blame it on unfair media coverage.

 

You're a politician looking to generate the equivalent of cheap heat with potential voters? Call out the media for being bias.

 

You're a coach of a professional sports team that needs extra motivation? Tell your players that the idiotic media is counting them out and watch your team get a little extra fired up.

 

A major ruling with first amendment implications just went against a media company while there were several questionable goings on from the judge and others during the trial? Ah, fuck it. It's just a sleazebag media outlet. They got what they had coming.

 

In world of public perception in the year 2016, just about anything else > the media.

[goodhelmet]

I didn't take away that lesson at all. I took away that private footage taken without his consent was blasted on a webpage and the website now has to own up to allowing the footage to be seen. I also don't view Gawker as part of the press either so there is that.

[Cross Face Chicken Wing]

But Hogan did know Bubba was filming. For some reason, the judge did not allow the jury to hear that evidence.

 

https://www.documentcloud.org/documents/2774309-Confidential-Declaration-of-Gregg-Thomas-With.html#document/p219

[Jingus]

The simple fact is that "stealing private footage and releasing it yourself" is incredibly illegal, period, no matter what. And it doesn't matter that Gawker didn't technically steal it themselves, it was still stolen goods and they admittedly knew it. And it doesn't matter if Hogan knew the camera was filming or not, that still doesn't give Gawker or anyone else permission to do anything with that footage. Gawker had ZERO right to even legally possess a copy of that tape, let alone show any part of it to anyone else.

[funkdoc]

 

 

Gawker just seems nasty and spiteful, and the justice system should do all it can to crack down on this grubby vulturous form of "journalism". It is genuinely toxic and this is in a post-Murdoch scandal environment too.

there's a difference between "nasty and spiteful" and the kind of stuff we associate with the tabloids. it's not the law's place to prevent anyone from digging up 20-year-old dirt on Bill Cosby, as long as there's evidence for it.

The case is about privacy not about finding evidence for criminal activity.

 

Did Hulk Hogan do anything illegal?

 

was addressing your general sentiment re: that type of journalism, sorry!

 

on the particulars of this case, that Florida judge makes it awfully difficult for me to sympathize. i think i agree with Bix/kjh more than anyone here - stuff like this tends to be seen as an unfortunate but necessary byproduct of the First Amendment. hell, a NBA team owner was forced out of the league under quite similar circumstances not too long ago...

[PeteF3]

Basically Hogan's team wanted the story and the video pulled, which was bullshit because the story was legit news,

 

Who says Hogan's sex life is "legit news"?

[...TG]

 

Basically Hogan's team wanted the story and the video pulled, which was bullshit because the story was legit news,

 

Who says Hogan's sex life is "legit news"?

 

The way I understand Gawker's argument, it's because Hogan was on Bubba's show a bunch and Stern's show talking about it. And since he's brought his sex life into the public sphere, it's "legit news" Though I'm certainly no legal expert, so anyone, please correct me if I've gotten this wrong.

[...TG]

But Hogan did know Bubba was filming. For some reason, the judge did not allow the jury to hear that evidence.

 

https://www.documentcloud.org/documents/2774309-Confidential-Declaration-of-Gregg-Thomas-With.html#document/p219

I couldn't find anything in a quick scan of p. 219 in that document you linked, but there's a text exchange that came out between Bubba and Hogan in which Hogan is pissed at Bubba for not knowing this was filmed, and Bubba seems to confirm. I'd link but alas, I can't find it. (Not to put Bix on blast here, but he mentioned it on BTS this week and I'm pretty sure he tweeted it last week.)

[Jingus]

The way I understand Gawker's argument, it's because Hogan was on Bubba's show a bunch and Stern's show talking about it. And since he's brought his sex life into the public sphere, it's "legit news"

"Well, your honor, that woman publicly talked about having sex with other men, so I was totally justified in raping her."

[Bix]

 

But Hogan did know Bubba was filming. For some reason, the judge did not allow the jury to hear that evidence.

 

https://www.documentcloud.org/documents/2774309-Confidential-Declaration-of-Gregg-Thomas-With.html#document/p219

I couldn't find anything in a quick scan of p. 219 in that document you linked, but there's a text exchange that came out between Bubba and Hogan in which Hogan is pissed at Bubba for not knowing this was filmed, and Bubba seems to confirm. I'd link but alas, I can't find it. (Not to put Bix on blast here, but he mentioned it on BTS this week and I'm pretty sure he tweeted it last week.)

 

Bubba told the FBI what he initially said on his show, that Hogan knew he was on camera. In private texts between Hogan and Bubba, it's clear Hogan didn't know. Bubba eventually testified in his deposition that Hogan didn't know.

 

It looks like Hogan genuinely didn't know, given the context. But it does seem like he knew there were cameras in the house and Bubba reassured him he wouldn't be filmed.

[sek69]

I'm not saying it's the moral high point of journalism or anything, but to say a celebrity sex tape isn't news in 2016 is disingenuous.

[goc]

I'm not saying it's the moral high point of journalism or anything, but to say a celebrity sex tape isn't news in 2016 is disingenuous.

They can report on it but that doesn't mean they can show the video of it and ignore requests to remove it.

[PeteF3]

Exactly. The "Fappening" and the Erin Andrews incident were both news (and actual legitimate news at that)--that doesn't mean that Gawker, the Huffington Post, or anybody else can actually show the video.

[kjh]

Actually in this case, the Florida's Second District Court of Appeal in their decision to overturn Judge Pamela Campbell's injunction on the video, has already ruled that Gawker's video was protected by the First Amendment:

 

In support of his contention that the report and video excerpts do not qualify as matters of public concern, Mr. Bollea relies on Michaels v. Internet Entertainment Group, Inc., 5 F. Supp. 2d 823 (C.D. Cal. 1998) (Michaels I), in which the court enjoined the commercial distribution of an entire sex tape that infringed the plaintiffs' copyrights. However, the court in Michaels I found the use of the sex tape to be purely commercial in nature. Specifically, the copyrighted tape was sold via the internet to paying subscribers, and the internet company displayed short segments of the tape as a means of advertisement to increase the number of subscriptions. Id. at 835. In contrast, Gawker Media has not attempted to sell the Sex Tape or any of the material creating the instant controversy, for that matter. Rather, Gawker Media reported on Mr. Bollea's extramarital affair and complementary thereto posted excerpts from the video.

The court in Michaels I pointed out that although "[t]he plaintiffs are entitled to an injunction against uses of their names or likenesses to sell the [sex tape,] [t]he injunction may not reach the use of their names or likenesses to report or comment on matters of public interest." Id. at 838. In accord with this conclusion, the court held in the companion case that the publication of a news report and brief excerpts of the sex tape was not an invasion of privacy and was protected speech. Michaels II, 1998 WL 882848, at *7, *10 (distinguishing the dissemination of an entire sex tape with the use of excerpts from the tape); see also Bollea v. Gawker Media, LLC, 913 F. Supp. 2d 1325, 1331 n.6 (M.D. Fla. 2012) (Bollea II) ("[Gawker Media] did not simply post the entire [sex Tape]—or substantial portions thereof, but rather posted a carefully edited excerpt consisting of less than two minutes of the thirty[-]minute video of which less than ten seconds depicted explicit sexual activity."). Here, the written report and video excerpts are linked to a matter of public concern—Mr. Bollea's extramarital affair and the video evidence of such—as there was ongoing public discussion about the affair and the Sex Tape, including by Mr. Bollea himself. Therefore, Mr. Bollea failed to meet the heavy burden to overcome the presumption that the temporary injunction is invalid as an unconstitutional prior restraint under the First Amendment. As such, it was within Gawker Media's editorial discretion to publish the written report and video excerpts. See Providence Journal, 820 F.2d at 1351; see also Doe v. Sarasota-Bradenton Fla. Television Co., 436 So. 2d 328, 331 (Fla. 2d DCA 1983) (noting that it is the primary function of the publisher to determine what is newsworthy and that the court should generally not substitute its judgment for that of the publisher).

 

It also doesn't matter that it was illegally recorded, so long as Gawker obtained it legally ("The Supreme Court in Bartnicki held that if a publisher lawfully obtains the information in question, the speech is protected by the First Amendment provided it is a matter of public concern, even if the source recorded it unlawfully.")

 

This is why many people think Hogan will have a very tough time in the appeals court (because to rule in Hogan's favour they would have to go back on their previous ruling).

[Grimmas]

Actually in this case, the Florida's Second District Court of Appeal in their decision to overturn Judge Pamela Campbell's injunction on the video, has already ruled that Gawker's video was protected by the First Amendment:

 

In support of his contention that the report and video excerpts do not qualify as matters of public concern, Mr. Bollea relies on Michaels v. Internet Entertainment Group, Inc., 5 F. Supp. 2d 823 (C.D. Cal. 1998) (Michaels I), in which the court enjoined the commercial distribution of an entire sex tape that infringed the plaintiffs' copyrights. However, the court in Michaels I found the use of the sex tape to be purely commercial in nature. Specifically, the copyrighted tape was sold via the internet to paying subscribers, and the internet company displayed short segments of the tape as a means of advertisement to increase the number of subscriptions. Id. at 835. In contrast, Gawker Media has not attempted to sell the Sex Tape or any of the material creating the instant controversy, for that matter. Rather, Gawker Media reported on Mr. Bollea's extramarital affair and complementary thereto posted excerpts from the video.

The court in Michaels I pointed out that although "[t]he plaintiffs are entitled to an injunction against uses of their names or likenesses to sell the [sex tape,] [t]he injunction may not reach the use of their names or likenesses to report or comment on matters of public interest." Id. at 838. In accord with this conclusion, the court held in the companion case that the publication of a news report and brief excerpts of the sex tape was not an invasion of privacy and was protected speech. Michaels II, 1998 WL 882848, at *7, *10 (distinguishing the dissemination of an entire sex tape with the use of excerpts from the tape); see also Bollea v. Gawker Media, LLC, 913 F. Supp. 2d 1325, 1331 n.6 (M.D. Fla. 2012) (Bollea II) ("[Gawker Media] did not simply post the entire [sex Tape]—or substantial portions thereof, but rather posted a carefully edited excerpt consisting of less than two minutes of the thirty[-]minute video of which less than ten seconds depicted explicit sexual activity."). Here, the written report and video excerpts are linked to a matter of public concern—Mr. Bollea's extramarital affair and the video evidence of such—as there was ongoing public discussion about the affair and the Sex Tape, including by Mr. Bollea himself. Therefore, Mr. Bollea failed to meet the heavy burden to overcome the presumption that the temporary injunction is invalid as an unconstitutional prior restraint under the First Amendment. As such, it was within Gawker Media's editorial discretion to publish the written report and video excerpts. See Providence Journal, 820 F.2d at 1351; see also Doe v. Sarasota-Bradenton Fla. Television Co., 436 So. 2d 328, 331 (Fla. 2d DCA 1983) (noting that it is the primary function of the publisher to determine what is newsworthy and that the court should generally not substitute its judgment for that of the publisher).

 

It also doesn't matter that it was illegally recorded, so long as Gawker obtained it legally ("The Supreme Court in Bartnicki held that if a publisher lawfully obtains the information in question, the speech is protected by the First Amendment provided it is a matter of public concern, even if the source recorded it unlawfully.")

 

This is why many people think Hogan will have a very tough time in the appeals court (because to rule in Hogan's favour they would have to go back on their previous ruling).

Well that is really messed up.

[soup23]

That is ridiculous and seems like a much more conservative ruling from the Appeals Court than anything Campbell ruled upon presiding over the case.

[kjh]

It may seem like a ridiculous ruling, but it's entirely consistent with the nearest equivalent case (Paramount being sued by Bret Michaels over excerpts of his sex tape with Pamela Anderson being used on an edition of their tabloid show Hard Copy, which was dismissed before going to trial).

[Jingus]

Showing any excerpts from such a tape shouldn't be considered legal; and any judge who rules it is should be disbarred. And how in the world could Gawker's method of obtaining a tape made without the party's knowledge or consent, violating their privacy in the most invasive manner possible, be considered legal?

[goodhelmet]

Yeah this is like trying to justify Plessy v. Ferguson. Just because an asshole judge made a ruling don't make it right.

[kjh]

I'm not arguing morality (clearly what Gawker did was a pretty scummy thing to do) or that such an interpretation of the law is just, but given the weight put on the First Amendment (freedom of the press) by the three judges on the appeals court Hogan will have a tough time holding onto his big win. Campbell's rulings so far have been the consistent outlier, rightly or wrongly. The smartest strategy for Hogan would be to use the verdict as leverage for a sizable, albeit reduced, settlement with Gawker which guards against the risk that Gawker wins their appeal. I'd hate to see Hogan snatch defeat from the jaws of victory based on his seemingly bullheaded counsel, especially if he's the one footing the bill if that risky strategy backfires.

 

Regarding the legality of how Gawker acquired the tape, it was sent to them anonymously. No money was exchanged. That said, I would think this is a good line of attack for Hogan, given the appeals court have already indicated how sympathetic they are to Gawker's First Amendment defence.

[Jingus]

Regarding the legality of how Gawker acquired the tape, it was sent to them anonymously. No money was exchanged.

The lack of money is irrelevant. If someone hands you a stolen diamond necklace, and you don't pay them for it, you still have no legal right to possess that necklace. "I didn't steal it" and "I didn't ask for it" and "I didn't pay for it" and even "I didn't know it was stolen" absolutely do not matter, it's still stolen goods and you have zero right to even hold onto it, let alone pass it along to others.

[Cross Face Chicken Wing]

 

Regarding the legality of how Gawker acquired the tape, it was sent to them anonymously. No money was exchanged.

The lack of money is irrelevant. If someone hands you a stolen diamond necklace, and you don't pay them for it, you still have no legal right to possess that necklace. "I didn't steal it" and "I didn't ask for it" and "I didn't pay for it" and even "I didn't know it was stolen" absolutely do not matter, it's still stolen goods and you have zero right to even hold onto it, let alone pass it along to others.

 

 

Your analogies have nothing to do w/ the first amendment. Not saying you're not making viable points, but traditionally, courts have always erred on the side of preserving the first amendment at all costs, even in scummy situations like this one.

[kjh]

Yes, in the Florida 2DCA decision, they sort of skirt the issue of whether Gawker obtained the sex tape unlawfully (because Hogan's lawyers didn't push that angle and it's not 100% clear either way), but the judge did cite a precedent where a third party has stolen information and its subsequent publication was deemed lawful.