A Matter of Free Speech or Privacy? Jury Awards Hulk Hogan $115 Million In Sex Tape Case

Gawker220px-Hulk_Hogan_Pointing A Florida jury has handed down a massive privacy violation award in favor of professional wrestler Hulk Hogan, whose real name is Terry Bollea. The jury of four women and two men voted to give Hogan $115 million in damages against Gawker Media, Gawker founder Nick Denton and former editor Albert Daulerio for violating his privacy by publishing an excerpt of a sex tape. It is a shockingly large award when one considers that the jury could still add punitive damages on top of the award. Notably, Hogan was seeking $100 million in the lawsuit.

The tape itself is now a decade old and shows Hogan having sex with the wife of his best friend, Todd Clem, a Florida radio personality who later legally changed his name to Bubba the Love Sponge. Hogan said that Bubba the Love Sponge encouraged Hogan to sleep with his wife Heather. Clem then filmed the couple. In addition to the revealing images, the tape featured “pillow talk” that included racist comments where Hogan used the N-word and other racial terms and objected to his daughter having a relationship with a black man.

Now here is the really bizarre twist. Gawker is nailed for $115 million but Hogan settled with Clem for $5,000. That’s right, five grand.

The case is very important for both torts and first amendment law. Gawker insisted that it is a news organization reporting on a matter of public interest. It noted that Hogan spoke publicly about his sleeping with Clem’s wife. Gawker also argued that Hogan had bragged about his penis size and sexual prowess. Gawker also noted that Clem claimed at one time that Hogan knew about the taping.

Nevertheless, it took only six hours for the jury to issue the incredible award. This is just compensatory damages — $55 million in economic injuries and $60 million for emotional distress. Frankly, even if you accept the tort claim, that seems too high and could be subject to remittitur where a judge can lower the amount of damages granted by a jury when it is deemed excessive. That is more likely when the jury, as here, awards more than was sought by the plaintiff. You also have three truly notorious and frankly creepy people who started out with questionable reputations to begin with, particularly Hogan and the Love Sponge.

However, the biggest impact of the case may be on the limiting of defense against tort lawsuits by journalists and publishers. The common law tort of publicly disclosing private information turns on whether the information would be offensive to a reasonable person. That would seem easily established here. However, the tort has an exception for the publications of information that is “newsworthy.” If upheld, the verdict would rule that such a tape is not newsworthy despite the involvement of two public figures and preexisting coverage of this relationship. That would clearly create a chilling effect for media and commentators and will likely raise some fierce appellate issues.

This is a case, much like the Nicole Smith case that went to the Supreme Court, we sometimes see the least redeeming people established the most important legal principles in cases. This could be such a case. While many might view Hogan and Bubba the Love Sponge as “libel proof” — people who really have no or little reputation to lose, the jury clearly disagreed. However, there remains not a factual issue but a legal one. Was this newsworthy and does the tort liability impermissibly chill first amendment rights?

21 thoughts on “A Matter of Free Speech or Privacy? Jury Awards Hulk Hogan $115 Million In Sex Tape Case”

  1. I can’t agree with you there. Illegally taping a man having sex and refusing to take down the video is not the same as speaking openly about stuff.

    It was illegal to tape him and the court was wise to decide in his favor. The folks at Gawker should be happy it was kept civil, because illegally taping a person is a felony.

  2. I don’t see how publishing sex tapes of anyone is newsworthy. It is certainly great clickbait and it will generate a great deal of interest but that’s precisely because it is an invasion of the privacy of the people featured in the tape whether or not they knew they were being taped it wasn’t their intention for the entire world to see it via Gawker. I think the jury was right and with a tad of luck this will chill those tabloid organizations that publish lurid pictures and videos of famous people simply to make money because that’s the sole reason Gawker did what they did. Had their been no pecuniary benefit to Gawker for publishing a sex tape of Hulk Hogan they wouldn’t have done it.

  3. @Squeeky Nice poem. I like it!

    I think this is not newsworthy. Who cares if the Hogan makes a sextape?

    TBH, I think that amount is too excessive.

  4. Hellfire and damnation upon on “NEWS” outlets who want to make money off other people’s names. From voyeurs to the local paper the National Enquirer to whatever the self-appointed civil rights watchdogs’ call their fundraising scandal sheets. Wise juries will PUNISH invasive media attention more and more!

  5. Oh well, time for an Irish Poem!

    Don’t Make A Peep!!!
    An Irish Poem by Squeeky Fromm

    There once was an outfit called “Gawk–”
    Who decided a sex film to hawk—
    But what they went and did,
    With that non-consent vid,
    Left their company “outlined in chalk”!

    Squeeky Fromm
    Girl Reporter

  6. You can’t collect blood from a stone. There have certainly been times in my life where a settlement of $5K would have devastated me. Absent information that Clem is a millionaire, what should Bollea have settled for?

    Gawker on the other hand is a VC based Manhattan based media outlet that rails against revenge porn.

  7. Someone who markets himself with such matters as discussions of his penis size and all aspects of his personal life has made himself into a public figure, and the case should have been considered in that light. Unfortunately, anyone who has tried a case knows the potential impact of an unlikeable client–and Gawker’s attorneys certainly had that.

    1. Richard – the question before the jury was “Was it newsworthy?” When Gawkers editor said that his cut off age for newsworthy sex tapes was 4 years old, I am surprised they stopped at 115 million. The jury must be chomping at the bit for the next part of the trial. Gawker will be out of business.

  8. Although I think the award was excessive, this was a violation of privacy. It’s becoming increasingly common to videotape people without their permission, and then post it to the internet.

    This reminds me of another article on this blog where a student stole nude pictures of a teacher and posted them on the internet. I also recall news stories about creeps peeping into windows and over fences to videotape women to post online.

    The character and morality of the victim is immaterial to the invasion of privacy. Although most of us don’t make racist comments during pillow talk, most people do make unguarded comments in private that might embarrass them if made public. What if Hulk Hogan’s comments about his anatomy were compensating for something? Does that give a news organization the right to post unlawfully obtained nude photos or videos of his genitalia?

    I assume that Hulk settled with Sponge for a low amount because someone with the name of “Sponge” cannot be financially viable. It was Gawker that actually made the most financial gain.

    Sex tapes is not journalism. In this modern day and age of drones and camera phones, we need to stand firm that videotaping someone in a private sexual act or nude without their consent, and then posting it online is a violation of privacy.

    Now that I’ve got that off my chest, wasn’t the Hulk still married when this occurred? Jerk.

  9. One only had to hear Hogan’s lawyers examine the publisher and editor for Gawker to understand how the jury decided on $115million. At one point, one of them finally agreed that a sex tape of a four year old would not be appropriate for their newspaper. Anything older was ‘newsworthy.’

  10. It sounds as though it may have been a collusive lawsuit, where the three got together and decided to create a tort claim. If so, it certainly paid off. I fail to see the injury to the Hulk’s reputation; it would be interesting to know how that was calculated. Nonetheless, the award may be of some value in setting a precedent for cases where a sex tape was posted on the Internet by a vindictive ex, and the victim truly did not agree and was harmed.

  11. Knowing that voyeur Bubba the Love Spunge published this video and that Terry Bollea was so unharmed by the publication that he settled with the Spunge for $5,000.00, one would think damages should be reduced if there is liability at all.

    Bollea certainly is a public figure, and there couldn’t have been much of a reckless disregard for the truth or knowledge of any falsity in publishing such a video. Private true facts were publicized, and I’d say those facts were both newsworthy enough and fresh enough that all of Lower and Upper Kardashia would want to hear the juicy morsels before the next WWE event. I’d think on appeal this verdict would be (or should be) reversed as a matter of law and remanded for dismissal with prejudice.

  12. We know we’re going to have this argument every time a jury is given the power to “protect” a citizen’s “privacy”. But, that’s OK, apparently, if you like to “send a message” to whomever you don’t like, whether it’s the press or a loudmouth wrestler. It’s just another gift of the “common law”. Apparently, jurists think it’s the ideal way to preserve a decent way of life in America.

    It doesn’t work for me. I’m a “brick wall” kind of guy. Give me statutory standards set by the legislature every time. As long as the media knows it can exploit a citizen’s very identity, without limit, get rich off of it, and get no worse than a slap on the wrist, they’ll keep on doing it. Forget your “chilling” effect.

  13. All things considered, the Amount of the verdict is too high. How was Hulk damaged? Just look at him. We can not be talking about reputation here. It would be different if he was a pedophile priest and was caught on tape with an alter boy.

  14. It takes about $115 million just to keep Hulk Hogan’s strands of hair dyed that hideous shade of canary blond. Who is to judge what is or isn’t an excessive amount? Those steroids don’t just buy themselves, either.

  15. what a good lawyer can do…

    now, newsworthy and offensive – both subjective

    I guess I’m willing to put up with this kind of bs news and being offended in order to protect the freedom of journalism. The fact that I don’t have to click on gawker, or as they say turn the channel, allows me to make that choice.

    HOWEVER, seeing this is a fairly salacious and private story – IOW all parties were not notified this event would be made public – I think the people damaged should get a portion of all the profits which can be determined by keeping a record of clicks.

  16. Apparent no one is permitted privacy, according to lawyers.
    Sex, defecation, dying in a hospital, trying on swimsuits at the store, first love, taking a shower and getting dressed in the morning.
    It’s all “news”.
    Gotta love lawyers.

  17. Good decision. Nothing newsworthy about a sex tape, unless it is a politician or the Pope. What, anything a famous person does should be considered newsworthy??? Not much different than Erin Andrews if Hulk didn’t consent.

    Squeeky Fromm
    Girl Reporter

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