Hulk Hogan verdict and Gawker media: how public figures claim private protections

(This is a very-lightly edited paper written in 2016 for a News Ethics course. I’m publishing it now because I’m bored and public figures’ reprehensible actions are even more visible in today’s climate)

(The random numbers hanging off of some words are the references below — sorry for the awkward merge of formats)

The $140 million in damages recently awarded to Hulk Hogan1 (real name: Terry Bollea) for Gawker Media’s supposed invasion of his privacy underscores both the fluidity of the First Amendment in our age of over-sharing and the consequences of ethical decision making in a newsroom. In 2012, Gawker posted2 one minute of a thirty-minute sex tape (of which still images had already been published by other outlets) that appeared to show Hogan in an encounter with Heather Clem, the then-wife of his then-best friend Bubba the Love Sponge. The commentary that accompanied the edited footage ruminated on the surprising normalcy of the sexual encounter — for once, Hulk was closer to Terry, his insane boasts laid bare as he looked just like the rest of us do when we have sex (some background: Hogan has a history of bragging about his sexual prowess at places such as the Howard Stern Show, even admitting that the encounter between himself and Heather was encouraged by Bubba the Love Sponge). “Back in 2012, to the largely young and metropolitan audience of Gawker…the post was not particularly offensive,” but changing mores and building anxiety around the loss of privacy brought on by the internet makes the video, in hindsight, “seem like [an artifact] from an earlier and more licentious internet era,” Gawker founder Nick Denton has said in reaction to the verdict3.

The first questions an editor asks when contemplating publishing such risqué materials are always simple: is it true? Is it legal? The first question is relatively easy to answer, given the eminent familiarity of Hulk Hogan, one of the most recognizable American public figures of the past few decades (and to a lesser extent, Heather Clem, a public figure in her own right) — this video does indeed depict the previously-rumored liaison between Hogan and Clem. The second, given recent developments around revenge porn laws, is harder to answer. Hogan and Clem, it was assumed by then-Gawker editor AJ Daulerio (and then later confirmed in depositions), were aware they were being filmed — Bubba the Love Sponge has made no secret of the fact that his house is wired for audio and video. The video was delivered to Gawker by an anonymous source for no compensation. Legally, Gawker was protected from revenge porn and copyright issues (assuming the one-minute clip constituted fair use of the sex tape as intellectual property). Interestingly enough, though, Gawker was instead sued for invasion of privacy — invading the privacy of a man who had his own reality show and whose only rivals for the amount of time spent on-screen are long-tenured newscasters.

In Florida, where the suit was filed by Hogan, the outcome essentially hinged on “newsworthiness” (a term thrown around plentifully by both legal teams); invasion of privacy in this case was likely framed around “publication of private facts,” which is defined as4 “(1) the publication; (2) of private facts; (3) that are offensive; and (4) are not of public concern.” Gawker’s defense wouldn’t even try to argue (1) or (2) — clearly, private facts were published. As Nick Denton explained above, the video didn’t seem blatantly offensive in the 2012 internet landscape, but this also extends to personal offense, such as emotional distress, which Hogan’s lawyers would have you believe he suffered. Whether or not the contents of the video were of public concern invokes the newsworthiness argument and comprised most of the proceedings. Daulerio, who published the original post, would maintain that in the light of Hogan’s previous comments on the sexual encounter on the tape and the circulation of still images from the tape, the article was some sort of follow-up to earlier developments; a story that was already in the public eye was simply being further developed. Hogan claims that it was undue dirt-digging, done to hurt his persona. Gawker fundamentally believes in the right to publish things that may invite legal challenges, not shying away from stories that might give other publications pause; former editor Tommy Craggs says5 “If a reporter thinks [something] is true, and there is evidence to support that to the reporter’s satisfaction, then there is no earthly reason why it shouldn’t be out there. That is the entire philosophy of this company.” Gawker thinks truth is newsworthy; Hogan’s side wants only his truth to be told. This was a fight long-preordained — Gawker vs. famous person for invasion of privacy — after all, Denton “founded Gawker precisely because he thought powerful people had too much control over their own stories.”

Daulerio’s commentary on the original post — where he contrasted the bravado of Hogan’s public ur-male persona with the ironically-normal timidity of Hogan and Clem’s tryst — may very well be the best way to analyze the jury’s decision. Hogan’s lawyers argued that Hogan, the wrestler and brand, was a completely different person than Terry Bollea, the man; that Hogan’s claims of sexual conquest — the same claims that frame the newsworthiness of the original story — were something akin to the artistic license an actor takes when playing a character (Hogan, oddly enough, was forced to clarify in court that Bollea (the real man) was not as well-endowed as Hogan had claimed); that Daulerio had published an embarrassing and defamatory video of the private man, not the public figure. This all boils down to some pretty deep existential pondering — when does one have a right to privacy in the era of social media, where everyone is, as Denton says6, “to the extent that they are published and they are viewed, [becomes] some sort of public figure?” Clearly, a sex tape of me would never be published by Gawker, owing to my low public profile and lack of on-the-record sexual braggadocio, but there’s an important question here: is what is said in public, especially on social media, to be taken seriously anymore? If everyone and everything are brands now, who speak only with interest for increasing personal gain, what is real? In Gawker’s stated mission to expose truth, they have reached an impasse where the truth ceases to be important (at least to the court, which has with this case asserted the right of public figures to craft their own truth). The era of glib is here.

The court’s verdict, conduct, and awarded damages allowed Hogan to play both sides of the private/public dichotomy. Hogan wore his signature bandana in court (although he was only allowed to wear a plain, black cloth, in contrast to his ordinary red-and-gold headgear), blurring the line between Terry Bollea, who is the one seeking damages for supposed emotional distress and lost earnings, and Hulk Hogan, the more presentable and endearing figure. Hogan’s team argued that all on-camera/radio comments that Hogan made were in service of his brand, and this sex tape was out-of-character; as such, the exposure of Terry Bollea has hurt the Hulk Hogan brand. Asking for damages for lost earnings from the sex tape conveniently ignores the virulent racist comments he made on-mic, again as just Terry Bollea, which are the real reason for his disgraced dismissal from the WWE. By Hogan’s line of logic, his out-of-character racism would not be newsworthy, since he didn’t make them in his public persona — but then again, that did not stop outlets from picking up the story or the WWE from firing him. $140 million in damages, by the court’s judgement that Terry Bollea’s privacy was invaded, also makes no sense — did Bollea lose $35 million in income from this, as the courts decided, or was that Hogan? Hogan’s team claimed that Gawker’s brand value was increased by $15 million by posting the video (evidence given: Google searches for “gawker” increased), which besides being a harbinger of the tech bubble and baseless speculation, is irrelevant; who’s to say that Hogan’s brand didn’t benefit, too, seeing that at this point in his career he had suffered enough disgraces for many lifetimes — really, his public image had nowhere to go but up (and surely, Google searches for “Hulk Hogan” skyrocketed) . This is to say nothing of the $60 million in emotional distress damages (the average payout for a wrongful death lawsuit is around $1 million). The court is setting a dangerous precedent in the realm of First Amendment rights and actively undermining Gawker’s mission — it is allowing the powerful to dictate what is news. No doubt, editors will rethink publishing something like this again — it is certainly cheaper to hold your tongue than to fight a lawsuit against a well-moneyed public figure in the court of his or her choosing. In a world where one can shape their image and control the release of information like never before with tools such as Twitter, the traditional job of the press — to expose truth, especially that which runs counter to public perception — is threatened.

In his takedown of the court’s judgement, Denton writes3, “self-promoters should not be allowed to seek attention around a specific topic and then claim privacy when the narrative takes an unwelcome turn. The benefits of publicity come at a price; and for someone like Hogan, whose whole life is a performance, it’s a full-time and long-term commitment.” People with money and notoriety have always and will continue to seek and win trial-as-spectacle court cases — look no further than James Woods suing a random person on Twitter for $10 million7 for calling him a “crack addict.” The disappointing thing about the Hogan trial is that we, as a nation, have allowed the social media privacy paranoia to hinder the right to free speech. The news is flooded with stories of Twitter accounts being hacked and people losing their jobs over controversial comments that go viral; it’s natural to want to clam up and try to push all of this fear away, locking the terrifying gossip-media boogeyman in the basement. New technology begets new ways of acting (and naturally, new ways to depict sex). Reactionaries temper the anxiety by hewing to conservative applications of the First Amendment, trying to handcuff that which causes them anxiety. It’s an identifiable cycle in the course of human events (see: motion pictures, Red Scare). Hopefully, as these things tend to do, this injustice will correct itself. Until that day, the self-promoter’s glass house will be protected.

References

1 — Gardner, Eriq. “Gawker Trial: Hulk Hogan Awarded $25 Million More in Punitive Damages.” The Hollywood Reporter. 21 Mar 2016. <http://www.hollywoodreporter.com/thr-esq/gawker-trial-hulk-hogan-awarded-877065>.

2 — Daulerio, AJ. “Even for a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed is Not Safe For Work but Watch it Anyway.” Gawker. 4 Oct 2012. < http://gawker.com/5948770/even-for-a-minute-watching-hulk-hogan-have-sex-in-a-canopy-bed-is-not-safe-for-work-but-watch-it-anyway>.

3 — Denton, Nick. “The Hogan Verdict.” Gawker. 22 Mar 2016. < http://gawker.com/the-hogan-verdict-1766460791>.

4 — “Invasion of Privacy — General.” Without My Consent. <http://withoutmyconsent.org/50state/1938674168>.

5 — Bustillos, Maria. “Everything You Need To Know About Hulk Hogan vs Gawker.” Motherboard. 1 Jul 2015. < http://motherboard.vice.com/read/hulk-hogans-sex-tape-is-about-to-go-to-trial-gawker>.

6 — Levine, Robert. “What Hulk Hogan’s Gawker Lawsuit Means for Our Privacy.” The New York Times. 4 Apr 2016. < http://www.nytimes.com/2016/04/05/opinion/what-hulk-hogans-gawker-lawsuit-means-for-our-privacy.html>.

7 — “James Woods — Twitter Foe Says Actor Played Coke Card First.” TMZ. 8 Sep 2015. < http://www.tmz.com/2015/09/08/james-woods-twitter-lawsuit-defamation-cocaine/>.