Academic journal article Rutgers Computer & Technology Law Journal

Privacy, the First Amendment and Hulk Hogan's $140.1 Million Jury Verdict

Academic journal article Rutgers Computer & Technology Law Journal

Privacy, the First Amendment and Hulk Hogan's $140.1 Million Jury Verdict

Article excerpt

I. INTRODUCTION                                      1 II. BRIEF SUMMARY OF THE FACTS                       2 III. THE BROADER IMPLICATIONS OF         BOLLEA V. GAWKER MEDIA                       4 IV. AUTHORITIES SUPPORTING THE RIGHT OF PRIVACY      5 V. AUTHORITIES SUPPORTING THE FIRST AMENDMENT       18 VI. PROFESSOR MIKE FOLEY ON JOURNALISM ETHICS       28 VII. OPINIONS OF LEGAL EXPERTS                      34 VIII. YOUGOV.COM SURVEY, MARCH 2016                 36 IX. CONCLUSION                                      36 

I. INTRODUCTION

On October 15, 2012, Terry Bollea, professionally known as "Hulk Hogan," filed a $100 million lawsuit against Gawker Media, LLC, its founder/CEO Nick Denton, and its then-Editor-in-Chief of gossip website Gawker.com, A. J. Daulerio. In March 2016, a Florida jury returned a verdict in his favor in the amount of $55 million in economic damages, plus S60 million in emotional distress damages, plus punitive damages of $15 million against Gawker Media, $10 million against Denton, and $100,000 against Daulerio, for a total award of $140.1 million.

This article discusses the legal authorities that apply to the right of privacy and the First Amendment to the U.S. Constitution, within the context of video, audio or photographic content that is private in nature and exposed publicly, against the consent of the subject. While the Bollea case happens to involve a worldwide celebrity, the legal authorities discussed herein apply to celebrities and non-celebrities alike--all of whom are deemed by courts to have privacy rights and, conversely, all of whom can be the fair subject of news reporting.

The vast majority of legal authorities cited herein form the basis of the legal arguments by both Bollea and Gawker in their respective court papers supporting and opposing numerous motions in the underlying case, including motions for a temporary injunction, motions to dismiss, motions for summary judgment, and various pre-trial and post-trial motions. These same legal authorities are expected to form the basis of Gawker's appeal to the Florida appellate courts and beyond. This article includes additional legal authorities, for a more comprehensive discussion, as well as a short discussion about journalism ethics, as explained by Professor Mike Foley of the University of Florida College of Journalism and Communications. This article is intended to serve as a guide to any attorney, judge or other legal practitioner on the laws pertaining to the rights of privacy and the First Amendment to the U.S. Constitution.

II. BRIEF SUMMARY OF THE FACTS

In mid-2007, Bollea was recorded without his knowledge or consent in a private bedroom, without clothing, engaged in private activities with a woman. The woman was Heather Clem, the wife of Bollea's best friend, Bubba the Love Sponge Clem. The encounter occurred with the encouragement of Bubba and Heather. Bollea was unaware the encounter had been recorded until five years later, in 2012.

In late September 2012, Gawker received from an alleged "anonymous" source, a DVD containing a 30-minute video of the encounter. Gawker edited it into a 1 minute 41 second "highlight reel" (Daulerio's term) which included about ten seconds of footage of Bollea fully naked, receiving oral sex, and engaging in sexual intercourse. The video also included a minute and a half of the private bedroom conversations, before and after sex, of Bollea and Ms. Clem.

Gawker posted the video the afternoon of October 4, 2012. The next morning, Bollea's counsel immediately demanded the video be removed from Gawker.com, and said that if it was removed, Bollea would consider the matter resolved. Gawker refused to remove the video. Millions of viewers flocked to Gawker.com to watch the video, and the web traffic was driving revenue and converts to the Gawker family of websites (eight in all). Gawker kept the video at Gawker.com, knowing that Bollea had been secretly filmed. …

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