A St. Petersburg, Fla., jury is wrestling with the question of whether Gawker Media had the right under the First Amendment to post a video clip of Terry Bollea, also known as Hulk Hogan, having sex with his ex-friend’s wife, or if it violated the entertainer’s right to privacy. Bollea claims he was secretly filmed.
The jury listened to closing arguments on Friday after a two-week trial in state court that pitted Bollea against Gawker over the clip, which was published in 2012. Bollea, who is suing Gawker for $100 million, said the Web site refused to take down the video even after his attorneys sent a cease-and-desist letter.
Gawker, which has prevailed at the federal and appellate levels, is already positioning itself for an appeal even though the jury has just begun deliberating. It cited federal documents that were not made available for the jury, as well as the judge’s decision to allow Todd Clem to not testify. Clem, who is known as “Bubba the Love Sponge,” allegedly set up his then-wife Heather with Bollea for the filming of the sexual encounter.
A Gawker representative said: “As the trial concludes, we’re disappointed the jury was unable to see key evidence and hear testimony from the most important witness. So it may be necessary for the appeals court to resolve this case. Hulk Hogan’s best friend Bubba the Love Sponge — who made the tape and offered up his wife in the first place — originally told his radio listeners that Hulk Hogan knew he was being taped. The jury was only able to hear a questionable version of events. Bubba should have been required to appear in court and explain what really happened.
“There is still more to the story. We expect the upcoming release of improperly sealed documents, important evidence that the jury should have been able to see, will begin revealing the true facts that the jury deserved to know about during deliberations.”
What the jury did hear was a robust defense by Gawker’s lawyer, who noted: “When you’re a celebrity, you have to take the good with the bad.”
The defense questioned whether Bollea truly had no knowledge that he was being filmed and cited instances where Bollea was using his Hulk Hogan character to lie about key facts about the tape. He also said Bollea’s claims of “distress’” shouldn’t be of concern for journalists who need to “be honest” in order to do their “tough” jobs.
In a final flourish, he invoked the importance of the First Amendment over unsavory speech. The lawyer cited Supreme Court decisions on hate speech and pornography that were protected by the First Amendment, offering: “We need a First Amendment to protect speech that is controversial.”
He continued: “What the plaintiff asks you to do is easy…to muster your dislike or your disdain for Gawker…what we ask you is hard but it is right.”
What he deemed right is to “follow the law” that has “served” the U.S. well, even if the content in question “may not be our cup of tea.”
Bollea’s attorneys mocked the “civics lesson” from the defense, noting that the trial is about “balancing” the right to privacy and the First Amendment. They noted that Gawker delights in a “culture of breaking the rules.”
The lawyer cited the fact that Gawker rivals wrote about the existence of a sex tape but didn’t go further.
“The Dirty and TMZ never put the tape out. Doesn’t that tell you something?” he said.
Referring to earlier testimony by Gawker founder Nick Denton, who explained that public figures are held to a different standard of media scrutiny, the lawyer said of the defense: “His client doesn’t think the right to privacy exists.”