Monday, December 12, 2016
Trump , God and the 1st Amendment: Gawker's Demise and the Trump Era Threat to the 1st Amendment: Hulk Hogan’s smashing legal victory shows us that publishing the truth may no longer be enough.
Lawyers argued that Hulk Hogan, though a public figure, was a character portrayed by Terry Bollea, a private individual.Illustration by Oliver Munday / Source: Andrew H. Walker / Getty (man); Vladimir Godnik/Getty (scales)
When Hulk Hogan faced off in court against the Web site Gawker, earlier this year, it was easy to become distracted by the rococo tawdriness of the spectacle. After all, the case centered on the leak of a surreptitiously videotaped sexual encounter between Hogan, the professional wrestler, and the wife of his erstwhile best friend, who is named Bubba the Love Sponge. The trial, which took place in St. Petersburg in March, laid out a sordid tale of betrayal and exposure, told mostly by Hogan, whose lavishly mustachioed visage remains one of the prominent faces of the sport of pro wrestling. (Hogan, who is now sixty-three, prefers to characterize wrestling as “sports entertainment,” because promoters stage matches in advance.) Even after the jury’s verdict—a gargantuan award of a hundred and forty million dollars, in Hogan’s favor—few saw the case as anything more than a bizarre outlier, of little relevance to anyone except its protagonists.
But the lawsuit seems destined to have an enduring afterlife, and not just because of the revelation that it had been secretly financed by a tech billionaire with a vendetta against Gawker. The verdict heralds a new era, in which judges and jurors see the ribald world of the Internet, rather than the staid realm of newspapers, as the dominant form of journalism. Since the nineteen-sixties, a series of Supreme Court precedents, most of them involving newspapers, have made libel cases very difficult to win, in part because plaintiffs bear the burden of proving that the stories about them are false. In these cases, the Court came close to saying, but never quite said, that publication of the truth was always protected by the First Amendment. But, in an age when Internet publishers can, with a few clicks, distribute revenge porn, medical records, and sex tapes—all of it truthful and accurate—courts are having second thoughts about guaranteeing First Amendment protection. Hulk Hogan conceded that Gawker’s story about him was true, yet he still won a vast judgment and, not incidentally, drove the Web site out of business. The prospect of liability, perhaps existential in nature, for true stories presents a chilling risk for those who rely on the First Amendment.
The Hogan case had another dimension that was equally ominous for media organizations. The courtroom battle took place as Donald Trump’s candidacy for President was accelerating, and it drew on some of the same political forces. Although for years Hogan had honed an image of himself as a lovably egomaniacal celebrity, his Tampa lawyers successfully presented him as a rugged Everyman who was victimized by a group of privileged snobs. On the campaign trail, Trump turned contempt for the media into a central part of his quest for the Presidency. At rallies, he used the people inside the penned press enclosures as foils and targets. Pointing to the journalists, Trump would call them “disgusting reporters,” “horrible people,” and “scum.” As President-elect, he has used his platform and his Twitter feed to tap a deep reservoir of cultural resentment against, among others, flag burners, the cast of “Hamilton,” and the staff of the Times.
In retrospect, Hogan v. Gawker in the courtroom looks in some ways like a dress rehearsal for Trump v. Clinton at the polls. In both contests, a star of reality television who initially became famous in another field portrayed himself as an embattled outsider confronting an unaccountable élite. In both, a wealthy and successful man played the victim. And on both occasions that man won a convincing and consequential victory.
Hulk Hogan was born Terry Gene Bollea. He grew up in a tough section of Tampa and toiled for years in wrestling obscurity under a variety of stage names, including Terry Boulder, the Super Destroyer, and Sterling Golden, before he became a star as Hulk Hogan, in the nineteen-eighties. At six feet seven, with a trademark yellow-and-red bandanna and white horseshoe mustache, Hogan became a pop-cultural phenomenon, instantly recognizable even to non-wrestling fans. His fame grew when he starred, for four seasons, in a reality-television show that chronicled life in the Tampa mansion that he shared with his wife, Linda, and their two children—Brooke, an aspiring singer, and Nick, a teen-ager. (Hulk and Linda’s marriage was troubled, and in later seasons the show’s cameras followed them into their counselling sessions.)
In the summer of 2007, Nick Hogan was the driver in a car accident in which a passenger was grievously injured. Nick’s responsibility (or lack thereof) for the crash became a controversial subject in Tampa, and Bubba Clem, a popular local radio personality who had legally changed his name to the Love Sponge, defended Nick on his program. Hogan and Bubba, longtime friends, bonded over the controversy, and the wrestler made many appearances on Bubba’s show. In the acknowledgments in Hogan’s autobiography, which was published in 2009, he thanks “the man who’ll take our antics to the grave and who’s always there no matter how heavy it gets, Bubba the Love Sponge. (No, Linda, we are not gay lovers).”“Since you’re always asking, here’s a list of my various kinds of sighs, with explanations of what each one means.”
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On Bubba’s radio show, Hogan cultivated his image as an endearing rogue. Once, he told his host that if listeners would make Brooke’s new song No. 1 he would disclose the size of his penis. “You tell all your fans right now, keep Brooke at No. 1,” Hogan said, “and I’ll tell you how big the Loch Ness monster is.”
“How big your cock is,” Bubba replied. “I’ve seen it before. I know how big it is. . . . I would say hard, you’re probably seven and a half or eight inches.”
“Shit,” Hogan said.
“So, Hogan, you’re claiming to maybe have a ten-inch cock.”
“I’m not claiming,” Hogan answered. “Those are the facts, Jack.”
Bubba and his wife, Heather Clem, had an open marriage, and, over time, he encouraged Hogan to have sex with Heather. As Hogan later testified, he slept with Heather “three, maybe four” times, in 2007. Bubba had placed security cameras in and around his house, including the bedroom, and he taped his wife’s sexual encounters with his best friend, apparently without Hogan’s permission. In the spring of 2012, rumors about the existence of a sex tape, and then screen grabs from the video, began appearing on various Web sites. In September, 2012, someone—it’s never been entirely clear who—mailed a DVD to A. J. Daulerio, who was then the editor of Gawker. The video on the disk included about thirty minutes of Hogan and Heather having sex. Hulk and Linda later divorced, as did Bubba and Heather.
Nick Denton, the founder of Gawker Media, which grew to encompass a network of Web sites, often described his journalistic philosophy as “radical transparency.” In less highfalutin terms, Gawker liked to show people having sex. Sometimes the people were famous, like Hulk Hogan, but often the subjects were unknowns, who happened to be caught in embarrassing situations. The videos were accompanied by headlines and text that evinced a distinct sensibility—ironic, knowing, smug. Gawker viewed the human comedy with a sneer. Denton’s professed goal was to tear asunder the establishment’s secret arrangements and self-dealing, to explode hypocrisies. The site displayed special contempt for the mainstream news media, a project that Denton called “covering the death agonies of Manhattan’s old-line media industry, without much respect for the club’s cozy rules.”
Mainstream publications often wrote about Gawker, and Denton would oblige them with provocative remarks about his approach. Hogan’s lawyers, in preparing for trial, collected some of what they regarded as Denton’s more outrageous utterances. “We don’t seek to do good,” Denton told the Washington Post. “We may inadvertently do good. We may inadvertently commit journalism. That is not the institutional intention.” An interviewer from Playboy asked if Denton ever had misgivings about exposing people’s sex lives. “If there’s a gap between your private behavior and your public status, that’s what makes the story for us,” he said. “To my mind, the only real modern sin is hypocrisy.” The Playboy interviewer asked if Denton placed a lower value on privacy than most people. “I don’t think people give a fuck, actually,” Denton responded.
Denton recently turned fifty, and his stubbly beard and thinning hair have turned mostly gray. Born and brought up in London, and educated at Oxford, he began his career in traditional journalism, with the Financial Times. In 2002, he founded his first Web site, called Gizmodo, which provides candid evaluations of consumer technology. He created Gawker later that year and, eventually, ran a small empire of sites, some on fairly conventional subjects, including Jezebel (a feminist perspective on women’s life style), Deadspin (sports), Jalopnik (cars), and Lifehacker (tech and household tips), and some that were more exotic, like Fleshbot, a site devoted to reviews and video clips of pornography. Two other sites, Defamer and Valleywag, were scabrous takes on, respectively, Hollywood and Silicon Valley.
The precise focus of the Gawker Web site varied, depending on the inclinations of the people who were staffing it at any given time. In addition to skewering members of the mainstream media—including, on occasion, The New Yorker and me, personally—the site usually had entertainment-industry gossip and some valuable investigative reporting. One of its best-known scoops involved a video of Rob Ford, the late mayor of Toronto, smoking crack cocaine. Another report exposed the underground drug marketplace Silk Road, which was later investigated by law enforcement and shut down. The tone of Gawker was more consistent than the subjects it covered; it was fearlessly and indiscriminately mocking, regardless of the status of its targets. As Denton told me, “There’s actually much less regard paid to mainstream ideas of decency when you’re addressing a large but focussed audience of the young and metropolitan, not particularly easily shocked.” Gawker prospered in the atomized world of the modern media by identifying and servicing that “young and metropolitan” niche.
Gawker’s sensibility and its track record made it an obvious destination for the Hogan sex video. The video ended up with Gawker’s editor, Daulerio, whose appetite for risqué material had given him a reputation as Denton’s id. When we spoke this fall, at a hotel in Los Angeles, Daulerio, sipping a soda, still cultivated outlaw swagger, complete with a cigarette lodged behind his ear.
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“Of course we were going to run it,” Daulerio told me, speaking about the Hogan video. “This was something as airtight as it could be in the Gawker sense. At the time, celebrity sex tapes were kind of a thing that were popping up everywhere. It was impossible to think of it as anything other than public news. I combined it with a meditative essay about celebrity sex tapes, but for it to make sense we had to show him having sex.”
Daulerio’s fourteen-hundred-word essay, which he posted on October 4, 2012, with a minute-and-forty-second excerpt from the sex tape, was quintessential Gawker. “Because the internet has made it easier for all of us to be shameless voyeurs and deviants, we love to watch famous people have sex,” Daulerio began. “Even if their dicks are big enough to smash a boat horn with authority, or their faces are lit up like Gulf War scud missile footage after midnight, their sex—purposeful, vaunted celebrity sex—is still incredibly dull.” Daulerio went on to describe the events on the tape, with equal emphasis on the sexual details and the idle chitchat between Hogan and the then unnamed woman. “Her fellatio is successful and Hulkamania is about to run wild on her but then his cell phone rings,” Daulerio wrote. “He checks it because he thinks it might be his son, Nick. The ringtone on Hulk Hogan’s phone is a song by his daughter, Brooke Hogan, called ‘About Us,’ featuring Paul Wall. He is a proud father.”
The Hogan item drew more than five million page views, a viral success for Gawker. Denton prided himself on declining to accommodate the rich and powerful, so when Hogan’s lawyer asked him to take down the video he refused. He believed that Gawker’s audience would be amused by it and share the arch condescension of Daulerio’s piece. But Denton and his colleagues failed to recognize how the item might appear to a different demographic. In the communal idiom of Gawker and its viewers, Hogan was as preposterous a cultural figure as Donald Trump was an absurd political figure—but the rest of the country, it turned out, was speaking a different language.
Having failed to persuade Gawker to take down the sex tape, David Houston, Hogan’s longtime personal lawyer, began searching for a way to force the Web site to remove it, which led him to the Beverly Hills law offices of Charles Harder.
Harder was a successful but obscure lawyer who had cultivated a modest specialty in the entertainment industry. He represented celebrities whose images were used, without their permission, as implied endorsements by companies around the world. In some cases, electronics companies loaded photographs of movie stars, like George Clooney and Julia Roberts, into their products, which then showed up as default display images. In another, a jewelry company created a line of designs that it publicized as if they had been sponsored by Reese Witherspoon. Celebrities also called on Harder when their private photographs turned up on pornographic and other Web sites. Harder rarely had to go to court to persuade the companies to take down the images, since they were clearly unauthorized. As Harder and I sat in the conference room of his offices, which are next door to the Beverly Wilshire Hotel, he told me, “I had done a lot of work in getting a lot of people down off the Internet.”
At forty-seven, Harder has the bland good looks of the dad in a television commercial. He grew up in the San Fernando Valley and went to the University of California, Santa Cruz. “We started an alternative newspaper there, and I became the managing editor,” Harder told me. His motives, though, were the opposite of what the term “alternative” usually implies. “We thought the campus needed a more mainstream paper than the official school paper,” he said. “That’s why we started ours.” After college, Harder went to Loyola Law School, in Los Angeles, then clerked for a local federal judge. He went on to work for several different law firms, each with some connection to the entertainment industry, before starting his own practice, in 2013. His firm has now grown to about a dozen lawyers. Like most attorneys in private practice, Harder was more interested in finding clients than in pushing causes.
Harder filed two invasion-of-privacy lawsuits on behalf of Hogan: one in state court, against Bubba the Love Sponge and his wife, Heather; the other in federal court, against Gawker, Denton, and Daulerio. Bubba quickly settled with Hogan. The financial terms of that settlement were never disclosed, but, as part of the resolution, Bubba gave Hogan control of the copyright of the sex tape. That allowed Hogan to add a claim of copyright infringement against Gawker for publishing the tape without his permission, and to demand that the tape be removed from the Web site.
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But on November 14, 2012, James D. Whittemore, a federal judge in Tampa, gave Gawker a ringing victory, denying Hogan’s request that the Web site take down the tape. “Plaintiff’s public persona, including the publicity he and his family derived from a television reality show detailing their personal life, his own book describing an affair he had during his marriage, prior reports by other parties of the existence and content of the Video, and Plaintiff’s own public discussion of issues relating to his marriage, sex life, and the Video all demonstrate that the Video is a subject of general interest and concern to the community,” he wrote. Judge Whittemore, in essence, deferred to Gawker’s judgment that the tape was newsworthy, just as judges in the past often refused to second-guess newspapers’ decisions about what and whom to cover. In normal circumstances, this kind of definitive ruling would have ended Gawker’s legal jeopardy. In fact, it was only beginning.
Nick Denton, early in his career, covered Silicon Valley for the Financial Times, where he grew frustrated by what he regarded as the unduly laudatory coverage that tech entrepreneurs received. He founded Valleywag to address the problem, and though the site never achieved the readership or the advertising of his other outlets, and closed after a few years, Denton regarded its mission with special fondness. Valleywag often revelled in the foibles of local aristocrats, particularly a businessman named Peter Thiel.
Thiel became a billionaire as an early investor in Facebook and Paypal, but, as Valleywag gleefully recounted, his subsequent business ventures were less successful. “a facebook billionaire’s big dumb failure,” read one headline, referring to the fate of a hedge fund he founded. Valleywag also mocked Thiel’s politics (“facebook backer wishes women couldn’t vote”) and his passion for “seasteading,” in which wealthy exiles would set up sovereign communities on ships, where they would be free from taxes or government regulation. Finally, in 2007, Gawker published a post, ostensibly about discrimination in the venture-capital industry, with the headline “peter thiel is totally gay, people.” His sexual orientation may have been well known in the Silicon Valley business community, but Thiel had never disclosed it to the public. All of this, predictably, enraged him. (Denton, who is gay, has stood by the post.)
By 2016, Thiel had become Trump’s most outspoken supporter in the tech community, and it is through him that the nexus between the Trump campaign and the Hogan lawsuit becomes clearest. Thiel’s politics are heterodox, but he shares with the President-elect an aversion to regulation and taxes and a skepticism about free trade. Temperamentally, both men have a vindictive spirit toward their enemies and a willingness to spend money to punish them. For this reason, after Charles Harder filed his lawsuits against Gawker, Thiel, through an intermediary, reached out to him and offered to pay Hogan’s legal fees, as long as Thiel’s involvement was not disclosed. “One of the striking things is that if you’re middle class, if you’re upper middle class, if you’re a single-digit millionaire like Hulk Hogan, you have no effective access to a legal system,” Thiel said recently, at the National Press Club.
As Harder and others have pointed out, Thiel had the legal right to pay Hogan’s legal fees. “I could have done the case on a contingency,” Harder told me. “It happens all the time. I could have gone to a litigation-financing company. That happens all the time, too. Hulk Hogan could have paid for it out of pocket. Or a rich relative could have paid for it. If I had done it pro bono, would that have been wrong? Or a public-interest organization that believes in privacy could have paid for it. There are lots of different scenarios. The law is very clear that what he did is entirely legal and ethical.” Harder declined to say when he found out that it was Thiel who was paying the bills or how much Thiel invested in the case, other than to stipulate that the trial cost less than ten million dollars. Thiel first disclosed his involvement in an interview with Forbes,earlier this year.
It might have been permissible, but Thiel was a billionaire paying to put a publication out of business. He later acknowledged that he financed the case not because he wanted Hogan to be compensated for harm he suffered but, rather, to punish Gawker. “This is not about the First Amendment,” Thiel said at the Press Club. “It is about the most egregious violation of privacy imaginable. Publishing a sex tape, surreptitiously, done in the privacy of someone’s bedroom, and to hide behind the First Amendment, behind journalism—that is an insult to journalists.”
Gawker had won the first round, before a federal judge, but the Web site’s chances before a jury were considerably weaker. There Gawker would have to persuade ordinary people that some legitimate purpose was served by this exercise in public humiliation. In practical terms, Thiel’s financial backing meant that Hogan’s legal team could shake off the loss in federal court and prepare for a protracted trial against Gawker in state court. The question in the case would be whether Gawker violated Hogan’s right to privacy.“I’ve simplified my life by converting all my possessions into one gold brick.”NOVEMBER 22, 2010
The key issue in a right-to-privacy lawsuit like Hogan’s is whether the published material should be treated as news. “In the past, there was a tendency in courts to defer to the press on what’s newsworthy,” Amy Gajda, the author of “The First Amendment Bubble,” told me. In 1975, a man named Oliver Sipple saved President Gerald Ford from an assassination attempt in San Francisco. In the course of celebrating Sipple’s heroism, the San Francisco Chronicle revealed that he was gay. Sipple sued the paper for invading his privacy, but he lost the case, because the courts regarded his background as newsworthy. In a similar vein, the Supreme Court in 2001 ruled that a radio commentator could not be held liable for broadcasting a telephone conversation that had been illegally recorded by a third party. Justice John Paul Stevens’s opinion acknowledged that the Court had repeatedly refused “to answer categorically whether truthful publication may ever be punished consistent with the First Amendment,” but in this case, at least, making the commentator liable would threaten “the core purposes of the First Amendment because it imposes sanctions on the publication of truthful information of public concern.”
This kind of deference to journalistic judgment about what constitutes “truthful information of public concern” may be a vestige of a more orderly period in journalistic history. The implicit trust in the news media reflected in these rulings may not extend today to the operators of Web sites, a change that could also have ramifications for traditional news organizations. “Courts are now viewing newsworthiness in a dangerously subjective way to show that today’s Internet-based media sometimes doesn’t have the same ethics constraints as more mainstream media, leading to a more judgmental bench eager to question news value,” Gajda said. “This is what the Gawker case is all about.”
The difficulty of defining newsworthiness leaves judges a good deal of leeway in finding certain subjects off limits for public consumption. For example, after Jason Pierre-Paul, of the New York Giants, mangled his hand in a fireworks accident, a reporter for ESPN tweeted a photograph of his hospital medical chart. Pierre-Paul sued ESPN for invasion of privacy, and in August a federal judge in Florida ruled that, even though the photograph was accurate, the case could proceed. Ever since New York Times v. Sullivan, in 1964, established the rule that, in order to prevail, public figures must prove that stories about them are both false and were published with “actual malice,” libel cases have proved extremely difficult for plaintiffs to win. “We always felt that privacy was more of a fruitful ground for plaintiffs to sow, because in those cases they did not have to prove falsity or actual malice, the way they did in libel cases,” George Freeman, the executive director of the Media Law Resource Center, told me. “The whole celebrity culture just gives rise to more of these issues.”
The Internet, with its absence of gatekeepers and its unlimited number of voices, has scrambled the traditional understanding of invasion-of-privacy cases. “We are in a different world now, sparked in part by the Hulk Hogan case and by a push-the-envelope media that doesn’t abide by traditional journalistic rules,” Gajda said. “No court is ever going to say now that the media alone determines what’s newsworthy. If that were the case, then a revenge-porn publisher should have the right to publish anything. And a Peeping Tom would have the right to publish photos of Erin Andrews nude in her hotel room.” (A deranged fan took video of Andrews, a sportscaster, from an adjacent room at a Marriott in Nashville and posted the video online. The fan was convicted of stalking, and Andrews later won a fifty-five-million-dollar judgment against the hotel chain.) Thanks to Peter Thiel’s subsidy, Hogan’s lawyers could spend as much as they needed to persuade a jury, in effect, that Gawker resembled a stalker more than a newspaper.
The most important decision that Charles Harder made as Hogan’s lawyer was to hire local counterparts in Tampa, who understood how the wrestler’s status as a home-town hero could play against an opponent from New York. “If you were a kid in Tampa in the seventies, like I was, we didn’t have pro sports teams here yet,” Ken Turkel, one of the lawyers hired by Harder, and the lead trial counsel, told me. “But we were a hub in the professional-wrestling circuit. Your local sports heroes were either professional wrestlers or Cincinnati Reds, because they trained here. In those days, the wrestlers stayed in character all the time. Back then, it was all portrayed as real. Those were legitimate sports heroes, and no one was bigger than Hulk Hogan.”
In the opening statement, Turkel’s colleague Shane Vogt portrayed Hogan as someone who had earned a place in the world, only to be humiliated by a sniggering group of urbanites. Vogt played a segment from an NBC “Nightly News” report on Gawker, in which Jamie Gangel, the correspondent, asked Denton if Gawker was “snarky.”
“Yeah,” Denton said.
“Nude photos of private parts?” she asked.
“If it’s interesting,” Denton said.
“You report rumors; you don’t always check it out?”
“Defined by who?” Denton replied.
“Mean, occasionally,” Denton said.
The NBC report noted that Gawker employees enjoyed generous salaries and had health and retirement benefits. “And they’re well educated,” Gangel went on. “Harvard, Princeton, Stanford.” (Later in the trial, Hogan’s lawyers, to make sure the jury of four women and two men got the point, replayed the NBC report in full.)“I hate camping, but I love shopping at L. L. Bean.”OCTOBER 21, 2013
When Hogan took the stand, he recounted a life story that went from an impoverished childhood in Tampa to achievement of the American dream. He asserted that patriotism had a big part in his rise. Early in his career, he played a “heel,” a villain in the stylized choreography of wrestling, but that changed following the Iranian hostage crisis. “It started out with this horrible character named the Iron Sheik, who was . . . the real deal,” Hogan told the jury. “He was actually the Shah of Iran’s bodyguard.” The promoters set up Hogan as the Sheik’s rival, and Hogan’s career took off. “The political environment was the United States was having a lot of trouble with Iran at the time in politics, so it was a perfect storm,” he testified. “Hulk Hogan came back as the good guy.”
Still, Hogan had a problem as a plaintiff. Gawker’s lawyers, who also represented the co-defendants, Denton and Daulerio, had researched Hogan’s background as well. (The lawyers were from the Washington, D.C., firm of Levine Sullivan Koch & Schulz, which has done work for The New Yorker.) They knew that he had boasted about his sexual prowess, including the size of his penis; claimed numerous extramarital affairs, in his book and in interviews; and even broadcast his marriage-counselling sessions on television. How could a man who had made his private life so public claim that his “privacy” had been violated?
Hogan had an elegant response. He described Terry Bollea as a real person and Hulk Hogan as an invented character. They were, he said, different people. As he testified on direct examination, “The character is larger than life. It’s the all-American character. The theme of the training, prayers and vitamins and believe in yourself, is like what we call the four ‘demandments’ of the Hulkamaniacs. . . . Even my theme song is ‘Fight for the Rights of Every Man.’ He’s the all-American hero, in a nutshell, the character Hulk Hogan.” In the plaintiff’s view, Gawker’s disclosure violated the rights of Terry Bollea. (The formal title of the lawsuit is Bollea v. Gawker.)
The supposed distinction between Bollea and Hogan led to some surreal moments during the cross-examination. Michael Sullivan, a lawyer for Gawker, played the excerpt from Bubba’s radio show in which Hogan bragged about the size of his penis. Sullivan then asked the plaintiff, “Do you have any doubt as you sit in that witness stand today that you were discussing the length of your penis on Bubba’s radio program, any doubt?”
“Well, it’s not mine because mine isn’t that size, but we were discussing the length of Hulk Hogan’s,” he answered.
“Seriously? So you weren’t discussing—” the lawyer continued.
“No, seriously, I do not have a ten-inch penis,” Bollea/Hogan replied. “No, I do not, seriously.”
Hogan’s lawyers tried to drive home the difference in standards between newspapers and the Internet. They called Mike Foley, a professor at the University of Florida, who had been an editor at the St. Petersburg Times. He explained his view that journalists, in deciding what to publish, should follow the “Cheerios test”—that is, “You think, How will Mr. and Mrs. St. Petersburg react over breakfast? You have to step back and ask, Is it necessary?” This antediluvian formulation underlined the difficulty of Gawker’s task in defending itself from a privacy claim as opposed to a libel suit; the defendants were forced to defend their taste rather than their accuracy.
The snideness of the Gawker team made a bad situation worse. In a deposition, Daulerio was asked if he could imagine a situation where a celebrity sex tape would not be newsworthy.
“If they were a child,” Daulerio replied.
“Under what age?” he was asked.
“Four,” he replied. It was a wisecrack, but it landed with an ominous thud in the courtroom.
Ken Turkel, in his summation, made certain that the jury knew where the Gawker offices were situated. “I’m not so sure all of us are shameless voyeurs and deviants. They may be up on Fifth Avenue at Gawker, but that’s a little bit of an assumption for the rest of the world,” Turkel said. (He referred twice more to the “Fifth Avenue” offices.) In response, Michael Sullivan, for the Gawker defendants, tried a high-minded First Amendment argument. “In this country, it has long been clear that where a person joins in an ongoing conversation, even one about sex, that speech is protected,” he said. “Otherwise, we would become a nation where powerful celebrities, politicians, and public figures will use our courts to punish people for saying things that they frankly do not like. And we will all be worse off as a result.”
After just a few hours of deliberation, the jury awarded Hogan fifty-five million dollars in compensatory damages and sixty million more for emotional damages. After a further hearing on punitive damages, Hogan was awarded $25.1 million more. Gawker was told to pay fifteen million, Denton ten million, and Daulerio a hundred thousand. The judge insisted that Gawker post a fifty-million-dollar cash bond in order to appeal. Unable to produce that amount, Gawker Media corporately and Denton personally declared bankruptcy. This left Daulerio the only defendant whose assets were not tied up in bankruptcy court. One day this summer, Daulerio checked his bank balance on his phone, believing that he had about fifteen hundred dollars. The account showed a negative balance of $230,198,494. (Daulerio doesn’t know how that precise figure was reached.)“How’s everything tonight? Can I start you off with a summons for parking on the sidewalk?”MAY 26, 2014
Rather than try to continue operating under the supervision of the bankruptcy court, Denton, who owned roughly a third of Gawker Media, decided to sell the Web sites to Univision Communications, which is aimed largely at a Spanish-speaking audience, for a hundred and thirty-five million dollars. As part of the deal, which took place in August, Denton agreed to shut down the Gawker Web site. On November 2nd, Hogan and Gawker Media announced a tentative settlement, for thirty-one million dollars, paid out of the sale proceeds. In return, Gawker would forgo its chance to appeal. Gawker, Denton, and Daulerio presented a joint defense at the trial, but the company now appears to be casting Daulerio aside. In recent filings in bankruptcy court, Gawker’s lawyers sought to blame Daulerio for the entire Hulk Hogan fiasco, and get out of paying his attorney’s fees. A series of hearings this month in New York’s bankruptcy court may resolve the remaining issues among the parties. (Daulerio’s bank account is frozen.)
After Gawker posted the sex tape, in 2012, Hogan carried on as usual with his career. In a series of appearances on the Howard Stern program and other shows, he was teased about the tape, but he continued to promote pay-per-view wrestling programs with his partners at World Wrestling Entertainment. Then, in July, 2015, the National Enquirer and Radar published excerpts from other videotapes of Hogan that had been secretly recorded by Bubba the Love Sponge and later submitted in the Hogan case under seal. On one tape, Hogan speculates about whether his daughter is having a relationship with the son of a “black billionaire.” “I don’t know if Brooke was fucking the black guy’s son,” Hogan says. “I mean, I don’t have double standards. I mean, I am a racist, to a point, fucking niggers. . . . I mean, I’d rather if she was going to fuck some nigger, I’d rather have her marry an eight-foot-tall nigger worth a hundred million dollars—like a basketball player. I guess we’re all a little racist. Fucking nigger.” After the release of this tape, the W.W.E., which had stood by Hogan after the disclosure of the sex tape, cut ties with him. Without a major partner in the sport, Hogan has retreated from public view.
The clearest winner in the Hogan case has been Charles Harder, who has become the de-facto general counsel for the Trump backlash against the press. On behalf of Melania Trump, Harder filed a libel suit in Maryland against the American Web site of London’s Daily Mail, which reported that she had once worked as an escort. (The Mail withdrew the story, but the case is still pending.) Again on behalf of Melania Trump, Harder demanded the withdrawal of a YouTube video asserting that her son Barron Trump was autistic. (The creator took down the video and apologized.) Harder also represents Roger Ailes, the former president of Fox News and sometime Trump adviser, who resigned earlier this year in a sexual-harassment scandal. On behalf of Ailes, Harder wrote to New York, which had run several pieces critical of Ailes, asking that the publication preserve all records relating to Ailes and his wife, Elizabeth; this kind of request is often a prelude to a lawsuit, though none has been filed. (Harder did not specify errors in any pieces.) Harder recently settled two other cases against Gawker, both apparently financed by Thiel.
Like Trump, Harder consumes news avidly, if critically. “I’m pro press,” he told me. “I’m pro responsible press.” Like Thiel, Harder celebrates not just the victory of his client but the extinction of his opponent. “Gawker did a lot of bad things,” he told me. “I think that they’re not doing bad things anymore. Their modus operandi was character assassination. The fact that they are not doing it anymore doesn’t bother me.”
For decades, the news media benefitted from the deference paid by courts to the judgments of newspaper editors. The judge in federal court treated Gawker’s editors as if they were running a newspaper, and he declined to second-guess them about what constitutes the news. The jury in state court did the opposite. The question now is whether the law, instead of treating every publication as a newspaper, will start to treat all publications as Web sites—with the same skepticism and hostility displayed by the jury in Tampa. The new President and his fellow-billionaires, like Thiel, will certainly welcome a legal environment that is less forgiving of media organizations. Trump’s victory, along with Hulk Hogan’s, suggests that the public may well take their side, too. ♦