In 2006, Terry Gene Bollea, better known as “Hulk Hogan,” had sex with his best friend’s wife, Heather Clem. Apparently unbeknownst to either of them, his best friend Todd Alan Clem, now legally known as “Bubba the Love Sponge,” recorded their escapades. Unsurprisingly, the tape was leaked to third parties and eventually Gawker Media LLC obtained it and published portions of the footage on its website. The tape was not just about sex – in it, the Hulk is purportedly recorded using racist language. World Wrestling Entertainment Inc. caught wind of the reports that the tape contained footage of him using racist language, and they fired the Hulk. The Hulk filed claims for violation of his rights of privacy and publicity against Gawker and its founder and former editors, and the Clems (with whom he settled out of court).

The two week trial was certainly memorable. Bollea took the stand and made the distinction between himself as a private citizen and the Hulk Hogan persona/icon. He indicated that the Hulk and Bollea apparently have different body size measurements, for example. Terry Bollea made clear that he expects to be treated as a private citizen, and differentiated himself from the Hulk, who is a public figure that may (and has) discussed his body parts and sex life publicly. Did Gawker have an obligation to treat Bollea and the Hulk as two different people? Do publishers of sex tapes and other “gossip”-based materials have an obligation to follow the journalistic principles of the Society of Professional Journalists’ code of ethics? The former editor for Gawker, A.J. Daulerio, gave deposition testimony in 2013 that he might draw the line in publishing a sex tape if a child under the age of four were involved (he later said he was being facetious). Nick Denton, Gawker’s founder, testified his belief that Gawker is not bound by journalistic tradition.

The jury deliberated for 6 hours regarding compensatory damages. The Hulk asked for $100 million and the jury awarded $115 million. After the verdict, counsel for Gawker told the jury there was no need to award punitive damages, and that the compensatory damages alone “will send a chill down the spine of writers, producers, and publishers around the country. Men and women in the media throughout the United States will surely think twice before publishing or broadcasting anything about a public figure that is even close to the line…Your verdict will deter. It is enough.” But is it enough in an era where some “new media” platforms seem to deem everything newsworthy? The testimony of Daulerio and Denton seems to reflect a “no holds barred” mentality when it comes to the publication of salacious materials.

The Florida jury, prior to awarding another $25 million in punitive damages, asked Judge Pamela Campbell whether it could impose a community service obligation on Gawker. This indicates that the jury wanted to teach Gawker a lesson about what should be deemed within the boundaries of decency. The judge said “no”, and another $25 million dollars later, we have been promised an appeal of the verdict by Gawker. Gawker’s counsel, in response to several documents being unsealed late on March 18, has stated that the jury did not get to learn about important facts and that the unsealed documents will tell the real story.

The Hulk’s trial raises many important questions about the obligations of the media when it comes to sex tapes that were intended to be kept private, even by public figures. It is difficult to see a public benefit in the publication of this tape. It also seems somewhat unlikely that this verdict will generally chill freedom of speech and of the press, although it may give the media pause when considering the publication of private sex tapes. Are there limits in a society where we have become accustomed to seeing celebrities in the nude and to seeing celebrities and other public figures in leaked sex tapes, perhaps with the acquiescence of the individuals involved? The rise of celebrity status is sometimes tied directly to the publication of sex tapes. Just ask Kim Kardashian West if sex tapes and nudity have given her the publicity she seems to desire. At what point do we draw the line between the privacy of those individuals and freedom of speech in the media, even if the content is true and concerns a public figure? How might the lines be drawn differently if a public figure publishes sex tapes or nude photos of themselves – does that person become a “no limits” target for the media?

Terry Gene Bollea v. Gawker Media LLC et al., Case No. 12-012447-CI-011 (Circuit Court of the Sixth Judicial Circuit, Pinellas County, Florida)