Wednesday, March 23, 2016

The Hogan Verdict

HERE is commentary by Michigan Law Professor Len Niehoff.

Gawker seems to have a good argument that Hogan knew he was being taped, and had no reasonable expectation of privacy. - gwc

The Hogan Verdict

by Nick Denton // Gawker Media

The decision by a Florida jury to grant $140 million in damages for a story on about a Hulk Hogan sex tape was extraordinary. The number is far larger than even the plaintiff himself had asked for in relief. It’s a huge pay-day for an indiscretion that would have been quickly forgotten, one among many in the professional wrestler’s personal life.

The enormous size of the verdict is chilling to Gawker Media and other publishers with a tabloid streak, but it is also a flag to higher courts that this case went wildly off the rails. The plaintiff’s lawyers, with the occasional assist from our witnesses, successfully painted Gawker as representative of an untrammeled internet that good and decent people should find frightening and distasteful. Emotion was permitted to trump the law, and key evidence and witnesses were kept from the jury.

A state appeals court and a federal judge have already held repeatedly that the 2012 commentary and short video excerpt, which joined an existing conversation and explored the public’s fascination with celebrity sex tapes, were newsworthy. We have had our day in trial court, and we lost. We will have our day back in appeals court, and we will be vindicated.

Hogan did not sue us, as he has claimed, to recover damages from the emotional distress he purportedly experienced upon our revelation in 2012 of a sexual encounter with his best friend’s wife, Heather Cole (then Heather Clem). It turns out this case was never about the sex on the tape Gawker received, but about racist language on another, unpublished tape that threatened Hogan’s reputation and career.
Moreover, the basis of his claim that he had a reasonable expectation of privacy during his sexual encounters with Heather Cole, then Bubba’s wife, was that Hogan didn’t know he was being filmed. From the documents released by the appellate court, it is now clear that this is contradicted by multiple statements Bubba made to FBI agents asserting that Hogan knew full well that Bubba had wired his bedroom for video and was filming. We were barred from presenting that crucial evidence to the jury, or asking Bubba how much his most intimate friend knew about the couple’s sexual practices.

Hogan initially blamed his friend for the tape’s release, but later settled his lawsuit against Bubba for the sum of $5,000 and a pledge to play the role that Hogan needed him to in the litigation against Gawker. Bubba complied, asserting his Fifth Amendment rights against self-incrimination to avoid answering our questions about Hogan’s role in the tape’s genesis; the trial court allowed him to keep his end of his settlement bargain and prevented us from putting him on the witness stand.

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