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


Gawker220px-Hulk_Hogan_PointingA 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 giveHogan $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?

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