Gawker — and First Amendment — may receive body blow from another thin-skinned wrestler

Who knew that professional wrestlers could be so sensitive? And that their antics could have potentially grave First Amendment implications?

Hulk Hogan’s lawsuit against Gawker Media over the publication of the former professional wrestler’s sex tape is the latest case that pits a celebrity’s privacy rights against the Bill of Rights.

A ruling against Gawker could not only destroy the media empire built on trafficking in gossip but could mean the First Amendment will be less likely to protect journalists, even in situations in which the subject matter is more clearly a matter of legitimate public interest.

Before we get to the guts of the Hogan case, whose trial had been set to begin this week but has been postponed, let’s consider a similar one – also involving a colorful wrestler – that could hint at where the jury might be headed.

Jesse Ventura, during his brief stint as governor of Minnesota.Reuters

Body v SEAL

In July 2014, Jesse “The Body” Ventura, wrestling Hall of Fame inductee, former governor of Minnesota and professional conspiracy theorist, spent three weeks convincing eight jurors in federal court in Minneapolis that his reputation was damaged by former Navy SEAL Chris Kyle’s account of a bar fight in his book, American Sniper.

Kyle described how he punched a man identified as “Scruff Face” after he said he “hated America,” that Navy SEALS “were killing men and women and children and murdering” and that they “deserved to lose a few” in the war in Iraq.

Ventura said the encounter never happened and that Kyle’s book had destroyed his reputation in the SEAL community and his career as a television personality. He told the Minneapolis Star Tribune that if he lost his libel case, he would be so distraught that he would move to Mexico.

Ventura sought millions of dollars in damages, not only for defamation, but also for Kyle’s use of his name and image to promote the book. Although Kyle never identified “Scruff Face” in the book itself, he did tell interviewers that he was referring to Ventura.

Because Kyle was killed in a shooting in Texas about a year after Ventura filed his suit in 2012, the evidence about what really happened in the bar came from contradictory testimony by Ventura himself and a parade of witnesses produced by the attorneys for both sides.

The jury deliberated for six days and appeared to be deadlocked. The lawyers agreed to accept an 8–2 verdict. And then the jury awarded Ventura US$500,000 in damages for the defamation claim and $1.3 million for the unjust enrichment claim. The case is currently on appeal before the US Court of Appeals for the Eighth Circuit. (Full disclosure: I am one of the signatories to a friend-of-the-court brief supporting the Kyle estate in its appeal.)

Hulk Hogan’s sex tape

Fast-forward to a year later and another wounded wrestler is poised to try to vindicate his honor in a court of law. But this time, the issue is privacy, not reputation.

Hulk Hogan, who once wrestled Ventura, is scheduled to go to trial on July 6 in St Petersburg, Florida, seeking damages of $100 million from Gawker, operator of the online blog and celebrity gossip network. Gawker posted a videotape of Hogan having sex with Heather Cole Clem, then-wife of a satellite radio personality who uses the moniker Bubba the Love Sponge.

Hogan says the tape was made without his knowledge or consent. He originally sued Gawker in federal court, but, after a variety of procedural maneuvers, the case against the media company ended up in state Circuit Court, where Hogan’s related suits against Heather Cole and Bubba Clem eventually settled.

Hogan claims that Gawker invaded his privacy by posting the videotape, revealing offensive private facts about him, causing him emotional distress and violating his right to control the use of his name and image. Earlier this year, a state appeals court rejected his attempt to force Gawker to remove the video from its website, finding that it would be an unconstitutional prior restraint.

However, the trial judge announced on July 1 that only the jurors – not the media or the public – will be able to watch the video when it is shown in the courtroom at trial. Gawker’s lawyers have argued that this action could prejudice the jury as it considers whether or not the public has a legitimate interest in seeing the tape.

Toronto Mayor Rob Ford was another target in Gawker’s sights.Reuters

Legitimate public interest?

Gawker generally revels in controversy and seems to especially relish acquiring contraband videotapes of celebrities misbehaving.

For example, Gawker reporters made several attempts in 2013 and 2014 to purchase recordings allegedly showing Toronto mayor Rob Ford smoking crack cocaine.

But in these instances, as with the Hogan tape, no one has accused Gawker of making or inducing someone else to make the illicit recordings. Under US Supreme Court precedent, if they did nothing illegal to obtain the tapes, publication would be protected by the First Amendment, provided the contents are a matter of public interest and concern.

But what does that mean? It seems that the Hogan tape certainly interests the public. The New York Times reported that it has generated more than five million clicks for Gawker’s site. But are the contents really a matter of legitimate public interest?

Hogan says they are not, even though, as the appeals court in Florida observed, he voluntarily chose to discuss the tape at length with TMZ and on The Howard Stern Show.

A celebrity’s right to privacy

Hogan’s case isn’t the first to involve publication of stolen or surreptitious recordings of celebrities, including Paris Hilton, Kim Kardashian and Jennifer Lopez, having sex with their spouses or significant others. But most of their privacy lawsuits were either settled, like Hogan’s suits against everyone but Gawker, or were dismissed by a judge.

In 1997, former Baywatch star Pamela Anderson and her husband lost their bid to sue Penthouse magazine for publishing sexually explicit photos. A federal court in California concluded that the couple had already voluntarily disclosed intimate information about themselves to the media, and that the photos were “newsworthy” and therefore protected by the First Amendment.

But courts have also recognized that celebrities do not necessarily give up all their rights to privacy simply because they have chosen to reveal some aspects of their lives to the public. As a federal judge court wrote in a case involving yet another sex tape of Pamela Anderson (this time with singer Bret Michaels), “even people who voluntarily enter the public sphere retain a privacy interest in the most intimate details of their lives.”

Will Hogan – who operates businesses in the nearby Tampa Bay area – be able to convince a St Petersburg jury that Gawker has exploited his sex life for crass financial gain? Or will the jurors conclude that Hogan couldn’t have any legitimate right to hide the amorous adventures he bragged about elsewhere and that are intensely interesting to at least some of the public?

Will they agree with Gawker founder and defendant Nick Denton, who told the Daily Beast, “In the Internet Age, you might once in a while have something come out if you’re going to be that indiscriminate in your pursuit of celebrity perks”?

It will be interesting to find out. And given the colorful personalities involved in this case, we can count on lots of media coverage, even though trial judge Pamela Campbell has declared that the trial “is not going to be a carnival.”

Perhaps, but I wouldn’t bet on it. Even though Judge Campbell has promised the parties “judicial serenity and calm” in the courtroom, she can’t really control how the media reports the case outside it.

Moreover, a flamboyant and charismatic celebrity can have a powerful effect on jurors. They may rally to protect a local hero from what they regard as the actions of an irresponsible press. They can do that by awarding him millions of dollars in damages.

What does it mean for Gawker?

Although in the Daily Beast interview, Denton seemed confident about Gawker’s prospects for victory, predicting that “there’s a one in 10 chance of disaster,” the reality is that juries in state courts are notorious for handing down big libel judgments. This could threaten the company’s very survival.

Gawker Media is reportedly worth about $200 million. Hogan is seeking an award for half that. Even though statistically, massive jury awards are often reduced or set aside by an appeals court, Florida law will require Gawker to post a bond for the full amount of damages, plus interest, pending appellate review, which could take years.

In the meantime, Gawker would have to find some financial resources to keep afloat.

What it means for the rest of news

This wouldn’t be the first time a news organization was driven to the brink of destruction by a huge damages award.

In 1982, the Alton (Illinois) Telegraph declared bankruptcy after it lost its appeal of a $9.2 million judgment. That ruling had been based on a memorandum its reporters sent to prosecutors about a local contractor’s alleged ties with organized crime – a story that never even appeared in the newspaper.

In this case, of course, Hogan isn’t suing for libel. He couldn’t, because there is no dispute that the tape is genuine. Truthful speech, no matter how offensive, cannot be the basis for a defamation suit.

Here Hogan is arguing that intimate facts about his private life were made public in a way that would be highly offensive to a reasonable person.

Jurors are likely to identify with the plaintiff, on a very visceral level. They wouldn’t want a tape of themselves to be posted online, and they could agree that Hogan shouldn’t have to put up with it, either.

A ruling for Hogan could send a strong message that online sites should be very wary of posting videos of celebrities misbehaving, even if they think the content is newsworthy.

So, although he will appear in court using his real name (Terry Bollea), when the guy some call the greatest wrestler of all time strides into court wearing his signature bandanna, there is a chance he might take down Gawker – and maybe part of the First Amendment as well.

Stranger things have happened. Just ask Jesse Ventura.

Jane E Kirtley is a signatory to a friend of the court brief submitted to the U.S. Court of Appeals for the Eighth Circuit by First Amendment scholars,supporting the appellants in the Jesse Ventura case. She received funding from the U.S. Department of State to write an international Media Law Handbook, published in 2010. For the past 15 years, she has delivered lectures and conducted workshops on press freedom, ethics, and freedom of information in various countries as a recipient of State Department Speaker and Specialist grants.