Bollea v. Gawker

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Bollea v. Gawker
Court Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida[1]
Full case name Terry Gene Bollea, professionally known as Hulk Hogan, Plaintiff, v. Heather Clem; Gawker Media, LLC aka Gawker Media; Gawker Media Group, Inc. aka Gawker Media; Gawker Entertainment, LLC; Gawker Technology, LLC; Gawker Sales, LLC; Nick Denton; A.J. Daulerio; Kate Bennert, and Blogwire Hungary Szellemi Alkotast Hasznosito KFT aka Gawker Media, Defendants[1][2]
Citation(s) Gawker Media, LLC v. Bollea, 129 So.3d 1196 (Fla. 2d DCA 2014); 170 So.3d 125 (Fla. 2d DCA 2015)
Case history
Prior action(s) Injunction denied, Bollea v. Gawker Media, LLC, 913 F. Supp. 2d 1325 (M.D. Fla. 2012), motion to remand granted, Bollea v. Clem, 937 F. Supp. 2d 1344 (M.D. Fla. 2013)
Court membership
Judge(s) sitting Pamela A.M. Campbell[3]

Bollea v. Gawker was a Florida lawsuit in which Terry Gene Bollea, known professionally as Hulk Hogan, sued Gawker Media, publisher of the Gawker website, and several Gawker employees and Gawker-affiliated entities,[2] for posting portions of a sex tape of Bollea with Heather Clem, at that time the wife of radio personality Bubba the Love Sponge. Bollea's claims included invasion of privacy, infringement of personality rights, and intentional infliction of emotional distress. Prior to trial, Bollea's lawyers said the privacy of many Americans was at stake while Gawker's lawyers said that the case could hurt freedom of the press in the United States.[4][5]

Bollea sought $100 million in damages.[6] In March 2016, the jury found Gawker Media liable and awarded Bollea $115 million in compensatory damages and $25 million in punitive damages.[7][8] Three months after the verdict, Gawker filed for Chapter 11 bankruptcy protection and put itself up for sale.[9] Gawker Media's assets were subsequently sold to Univision Communications, who announced that they were closing gawker.com.[10] On November 2, 2016, Gawker reached a $31 million settlement with Bollea.[11]

Background[edit]

In 2006, Bollea was having sex with Heather Clem while being videotaped; at trial he claimed that the videotaping was without his knowledge or consent.[12] On The Howard Stern Show, Hogan told Stern that he had slept with Heather with Bubba Clem's blessing and his encouragement because he was so burnt-out from the trauma of his coming divorce that he finally gave in to the "relentless" come-ons from Heather who "kept going down that road." Bollea said that he knew that Clem had "an alternative lifestyle" and that he had stopped by their house "just to say hello" when Heather tempted him.[13] Bollea later testified: "I was depressed. I gave up and gave in. I felt that those people loved me."[12]

Bubba testified that he burned the video to a DVD, wrote "Hogan" on it, and put it in a desk drawer.[14]

On October 4, 2012, Gawker editor A.J. Daulerio published a two-minute extract from the 30-minute video, including 10 seconds of explicit sexual activity.[15]

Preliminary injunction decisions[edit]

Bollea originally sued Gawker for copyright infringement in the United States District Court for the Middle District of Florida, seeking a temporary injunction. Bollea's lawyer was Charles Harder.[16] U.S. District Judge James D. Whittemore denied Bollea's motion, ruling that the validity of the copyright was in question, and that given the degree to which Bollea had already put his own private life into the public arena, the publication of the video might be protected by fair use.[5][17][18]

Bollea withdrew his case in the US district court and sued Gawker in Florida state court. There, his request for an injunction was granted by Judge Pamela Campbell in 2013. Gawker announced that it would not comply with the part of the court order requiring the removal of the post and associated commentary because it deemed the order "risible and contemptuous of centuries of First Amendment jurisprudence." Gawker removed the video itself, but linked readers to another site hosting the video.[19]

The injunction was quickly stayed on appeal, and was denied in 2014 by the appeals court, which ruled that under the circumstances it was an unconstitutional prior restraint on speech under the First Amendment.[20] Gawker tried to get Judge Campbell to dismiss the case based on that ruling, but the case went to trial.[17]

Trial and verdict[edit]

The six-person jury consisted of four women and two men.[21] The trial lasted two weeks.[22] During the trial, Gawker argued that Bollea made his sex life a public matter, although on cross-examination, when asked by Bollea's lawyer whether a depiction of his genitalia had any "news value," former Gawker editor AJ Daulerio responded "no".[23] Bollea said that comments made in interviews were done in his professional wrestling character, an on-air persona different than his own.[24] The court was shown a taped deposition where Daulerio said that he would consider a celebrity sex tape non-newsworthy if the subject was under the age of four.[25] Daulerio later told the court he was being flippant in his response.[26]

On March 18, 2016, the jury delivered a verdict in favor of Bollea. The jury awarded him $115 million in compensatory damages, which included $60 million for emotional distress. The jury awarded Bollea an additional $25 million in punitive damages on March 21.[8]

Reactions to the verdict ranged from those supporting it and decrying voyeuristic publications, to those describing it as of limited scope which doesn't damage free speech, to those describing the verdict and the large judgment as having a deeply chilling effect on journalism when courts can decide newsworthiness.[27][28][29]

Aftermath[edit]

Gawker CEO Nick Denton said the company would appeal the verdict.[17] In early April 2016, Gawker Media filed two post-trial motions in the trial court.[30] In one motion, the company sought to throw out the jury verdict, arguing that "key evidence was wrongly withheld" and the jury instructions on the constitutional standards for newsworthiness were improper.[30] In another motion, Gawker argued that even if the verdict stands, the amount of damages should be greatly reduced, arguing that the emotional damage award exceeded amounts found to be excessive in severe personal injury cases and that the economic damages were improperly calculated.[30][31] In late May 2016, the trial judge denied both motions.[32]

In May 2016, it was reported that Bollea had sued Gawker again, alleging that they were responsible for leaking sealed court documents that had quoted him using racial slurs. The transcripts were published by the National Enquirer and WWE subsequently fired him. Gawker denied being responsible for the leak.[33]

Billionaire Peter Thiel, a co-founder of Paypal and current Facebook board member, paid $10 million to help finance lawsuits against Gawker Media, including the Bollea lawsuit. He called his financial support of Bollea's case "one of my greater philanthropic things that I've done."[34] Gawker had published an article on Thiel in 2007, outing him as gay.[35][36]

On June 9, 2016, Gawker filed a motion for a stay of execution of judgment pending appeal. In the motion and accompanying affidavits from Gawker Media personnel, the company stated that it could not afford to pay the $140.1 million judgment or the $50 million appeal bond.[37]

On June 10, 2016, Gawker filed for Chapter 11 bankruptcy protection and put itself up for sale.[9] Denton personally filed for Chapter 11 bankruptcy protection on August 1.[38]

Univision Communications bought Gawker Media's assets for $135 million at a bankruptcy auction on August 16, 2016.[39] The sale to Univision included six Gawker websites—Deadspin, Gizmodo, Jalopnik, Jezebel, Kotaku and Lifehacker—which were not involved with the publication of the Bollea materials.[40] The sale did not include the continued operations of the flagship Gawker website. On August 18, 2016, it was announced that the main Gawker site would be shut down by the next week.[41] Gawker's article archive would remain online and its employees will either be transferred to the remaining six websites or elsewhere in Univision.[42]

On November 2, 2016, Gawker Media and Bollea reached a $31 million settlement. As a result of the settlement, Gawker forewent its appeal and three articles from gawker.com were taken down, including the one involving Bollea.[11]

See also[edit]

References[edit]

  1. ^ a b Bollea v. Clem, et al., First Amended Complaint and Demand for Jury Trial (filed December 28, 2012).
  2. ^ a b Annie Youderian, Hulk Hogan Sues Gawker for $100M Over Sex Tape, Courthouse News Service (October 17, 2012).
  3. ^ Anna M. Phillips, Trial judge in Hulk Hogan-Gawker case is most reversed in Pinellas, Tampa Bay Times (March 25, 2016).
  4. ^ Madigan, Nick (March 4, 2016). "Hulk Hogan's Suit Over Sex Tape May Test Limits of Online Press Freedom". The New York Times. Retrieved March 10, 2016. 
  5. ^ a b "Hogan v. Gawker - Global Freedom of Expression". Columbia Global Freedom of Expression. Retrieved 2016-06-02. 
  6. ^ Mahler, Jonathan (June 12, 2015). "Gawker's Moment of Truth". The New York Times. Retrieved March 10, 2016. 
  7. ^ Mullin, Joe (March 18, 2016). "$115 million verdict in Hulk Hogan sex-tape lawsuit could wipe out Gawker". Ars Technica. WIRED Media. Retrieved March 18, 2016. 
  8. ^ a b Madigan, Nick (March 21, 2016). "Jury Tacks On $25 Million to Gawker's Bill in Hulk Hogan Case". The New York Times. 
  9. ^ a b Farhi, Paul (June 10, 2016). "Gawker files for Chapter 11 bankruptcy protection". The Washington Post. Retrieved June 10, 2016. 
  10. ^ "News site Gawker.com to shut down next week". BBC News. August 18, 2016. Retrieved August 18, 2016. 
  11. ^ a b "Gawker and Hulk Hogan Reach $31 Million Settlement". The New York Times. November 2, 2016. Retrieved November 2, 2016. 
  12. ^ a b Madigan, Nick (March 7, 2016). "Hulk Hogan Takes Stand in His Sex-Tape Lawsuit Against Gawker". The New York Times. Retrieved March 12, 2016. 
  13. ^ Bustillos, Maria (2015-07-01). "Everything You Need To Know About Hulk Hogan vs Gawker". Vice. Retrieved March 12, 2016. 
  14. ^ Phillips, Anna (February 28, 2016). "Hulk Hogan's sex tape lawsuit against Gawker heads to trial". Tampa Bay Times. Retrieved March 12, 2016. 
  15. ^ Daulerio, A.J. "Even for a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed is Not Safe For Work but Watch it Anyway". Gawker. Archived from the original on 24 January 2013. 
  16. ^ Harder, Charles (22 April 2016). "Hulk Hogan's Lead Lawyer Explains How His Team Beat "Arrogant," "Defiant" Gawker (Guest Column)". The Hollywood Reporter. Retrieved 6 April 2018. 
  17. ^ a b c "Jury awards Hulk Hogan $115 million as Gawker looks to appeal". Politico. May 18, 2016. 
  18. ^ Bollea v. Gawker Media, LLC, 913 F. Supp. 2d 1325 (M.D. Fla. 2012).
  19. ^ Cook, John. "A Judge Told Us to Take Down Our Hulk Hogan Sex Tape Post. We Won't". Gawker. Archived from the original on 28 April 2013. Retrieved 19 March 2016. 
  20. ^ Gawker Media, LLC v. Bollea, 129 So.3d 1196 (Fla. 2d DCA 2014).
  21. ^ Paul Farhi (18 March 2016). "Jury awards Hulk Hogan $115 million in lawsuit against Gawker Media over sex tape". Washington Post. 
  22. ^ "Hulk Hogan Gets $115M Verdict Against Gawker at Sex Tape Trial". The Hollywood Reporter. 18 March 2016. 
  23. ^ Letitia Stein, Gawker editor admits limit to news value at Hulk Hogan sex-tape trial, Reuters (March 14, 2016).
  24. ^ Saul, Heather (8 March 2016). "Hulk Hogan Gawker suit: Wrestler claims even his character was embarrassed by sex tape". The Independent. Retrieved August 1, 2016. 
  25. ^ Amanda Holpuch. "Former Gawker editor: I wouldn't publish the sex tape of a four-year-old". the Guardian. 
  26. ^ "Ex-Gawker Editor Backs Off Testimony in Hulk Hogan Case". The New York Times. 15 March 2016. 
  27. ^ Kornhaber, Spencer (March 24, 2016). "Is There Any Defending the Publication of a Sex Tape Without Permission?". The Atlantic. Retrieved June 2, 2016. 
  28. ^ "Does Hulk Hogan's Lawsuit Against Gawker Really Threaten Freedom of the Press?". The Nation. March 21, 2016. ISSN 0027-8378. Retrieved June 2, 2016. 
  29. ^ "Here's Why the Gawker Verdict Should Be — and Likely Will Be — Overturned". Fortune. March 22, 2016. Retrieved June 2, 2016. 
  30. ^ a b c Steven Perlberg, Gawker Begins Appeal of $140 Million Hulk Hogan Verdict, Wall Street Journal (April 5, 2016).
  31. ^ "Hulk Hogan v Gawker Legal FAQ - In Their Lawyers' Words | Litigation & Trial Lawyer Blog". www.litigationandtrial.com. Retrieved 2016-05-26. 
  32. ^ Rolfe Winkler & Steven Perlberg, Florida Judge Denies Gawker's Motion for New Trial in Hulk Hogan Case, Wall Street Journal (May 25, 2016).
  33. ^ Associated Press. "Hulk Hogan Sues Gawker, Again, Over Racist Comment Leak". NBC News. 
  34. ^ Sorkin, Andrew Ross (May 25, 2016). "Peter Thiel, Tech Billionaire, Reveals Secret War With Gawker". The New York Times. 
  35. ^ Sorkin, Andrew Ross (May 25, 2016). "Peter Thiel Is Said to Bankroll Hulk Hogan's Suit Against Gawker". The New York Times. Retrieved January 9, 2017. 
  36. ^ Alpert, Lukas I. (October 11, 2016). "Gawker Seeks Probe of Thiel's Relationship with Hogan's Lawyer". Wall Street Journal. Retrieved January 9, 2017. 
  37. ^ Peter Sterne, Gawker Media files for bankruptcy: Company files for Chapter 11 to protect assets from seizure by Hulk Hogan, Politico (June 10, 2016) (citing and linking to Gawker's motion).
  38. ^ Sterne, Peter (August 1, 2016). "Gawker founder Nick Denton to file for bankruptcy". Politico. Retrieved August 1, 2016. 
  39. ^ DiNapoli, Jessica (August 17, 2016). "Univision to buy Gawker out of bankruptcy for $135 million". Reuters. Retrieved August 18, 2016. 
  40. ^ Calderone, Michael (18 August 2016). "Gawker.com Ending Operations Next Week". The Huffington Post. 
  41. ^ Trotter, J.K. "Gawker.com to End Operations Next Week". Retrieved 2016-08-18. 
  42. ^ Rife, Katie (18 August 2016). "Hulk Hogan further vindicated as Univision shuts down Gawker". The A.V. Club. Retrieved 19 August 2016.