San Diego, CA – In the mid-2000s, Hulk Hogan, whose true name is Terry G. Bollea, had a sexual encounter with Heather Cole, the wife of Hulk Hogan’s friend, Todd Clem. Mr. Clem is a radio shock jock who had legally changed his name to Bubba the Love Sponge Clem (“Bubba”).
Bubba, who had previously encouraged Hulk Hogan to have sex with his wife, filmed the sexual encounter between Hulk Hogan and Bubba’s wife, Heather Cole. Thereafter, Bubba apparently provided the tape to Gawker.com (“Gawker”), an online publication which published the tape. Hulk Hogan then sued Bubba and Heather Cole for invasion of privacy.
In the course of an investigation by the FBI, the FBI questioned Bubba, who claimed that Hulk Hogan was aware his sexual encounter with Heather Cole was being filmed. However, in a later deposition, Bubba testified that Hulk Hogan was not aware that he was being filmed.
Lawsuit Against Gawker
Hulk Hogan settled his lawsuit against Bubba and Heather Cole for a relatively small amount. He then sued Gawker for invasion of privacy, seeking $100 million in damages. Gawker defended on the basis of its First Amendment rights to freedom of speech and freedom of the press, and on the grounds Hulk Hogan was a public figure, had previously bragged about his sexual escapades and prowess, and that the public had an interest in Hulk Hogan and his sex life.
Hulk Hogan, who denied knowing that his encounter with Ms. Cole was being filmed, countered that his celebrity status as Hulk Hogan did not deprive him of a right to privacy with respect to his private life; that Gawker neither requested his permission to publish the video, nor warn him in advance that it would do so; and that Gawker was not acting as a true journalist, but instead, acted solely for its own commercial gain.
The jury found in favor of Hulk Hogan after six hours of deliberation, and awarded him $115 million, composed of $55 million for economic damages and $60 million for Hulk Hogan’s emotional distress. Gawker has stated it will appeal, but in order to effect a stay of Hulk Hogan’s actions to collect from Gawker, Gawker must post a $50 million bond.
In addition to “compensatory” damages, Hulk Hogan sought punitive damages from Gawker. Punitive damages are not designed to compensate Hulk Hogan for the harm caused him, but rather, to punish Gawker for particularly egregious conduct. On March 21, 2016, the jury awarded Hulk Hogan $25 million in punitive damages, making the total award $140 million.
The Battle of Constitutional Rights
Everyone knows that Freedom of Speech and Freedom of the Press are two of our most fundamental rights as Americans. The free exchange of ideas is of the utmost importance to a free society, and can only be achieved and maintained if individuals are free to speak their minds and are afforded a venue in which to be heard. Freedom of the Press is vital to a free exchange of ideas, because it is the vehicle through which most information and ideas vital to a knowledgeable society are generated. How then can these fundamental rights be trumped by a “right of privacy” nowhere mentioned in the United States Constitution, let alone in the Bill of Rights? The answer appears to be: oftentimes easily.
Prior to 1965, a right of privacy was more of a concept than a matter of constitutional import. That changed with the case of Griswold v. Connecticut 381 U.S 479 (1965). In Griswold, the Executive Director of Planned Parenthood of Connecticut and one of its physicians were convicted as accessories for providing married persons information and advice on how to prevent conception and for prescribing a contraceptive device for the wife’s use. A Connecticut statute made it a crime for anyone to use any drug or article to prevent contraception.
The United States Supreme Court ruled that, “The Connecticut statute forbidding use of contraceptives violates the right of marital privacy, which is within the penumbra of specific guarantees of the Bill of Rights.” The Court noted, for instance, that the First Amendment’s right of association, the Fourth Amendment’s right to be free from unreasonable searches and seizures, and the Fifth Amendment’s privilege against self-incrimination, were examples of “zones of privacy” inherent in the rights granted to individuals in the Constitution.
At the time of the Griswold decision, there was no constitutional right to privacy under California law. However, in 1972, the California Constitution was amended to provide: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy. California Constitution, Article 1, Section 1. (Emphasis added). Since then, the right of privacy in California has been greatly expanded, and today there are more than 90 California statutory provisions which protect individuals’ privacy rights.
In 1994, the California Supreme Court enunciated the following three-part test for determining if one’s privacy has been violated: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by the defendant constituting a serious invasion of privacy. Hill v. National Collegiate Athletic Association (1994) 7 Cal. 4th 1.
Similarly, in Florida, where the Hulk Hogan v. Gawker case recently played out, there was no Florida constitutional or statutory right of privacy at the time of the Griswold decision. By the 1980s, however, Florida had established the following test for determining if one’s privacy has been violated (1) a publication; (2) of private facts, (3) that are offensive, and (4) are not of public concern. Cape Publication, Inc. v Hitchner 549 So. 2d 1060, 1062-63 (Fla. 1989).
Interestingly, the judge in the Hulk Hogan v. Gawker case did not permit Bubba to testify as to whether Hulk Hogan was aware his sexual encounter with Heather Cole was being filmed. Reports of the case differ as to the reason he did not testify. Some reports say that it was because Bubba had provided the FBI a different version of what happened than the version to which he testified under oath in a deposition, and thereafter asserted his Fifth Amendment privilege against self-incrimination with respect any further questioning. Other reports state that, based on Bubba’s conflicting answers to the question whether Hulk Hogan was aware he was being filmed, the trial judge found Bubba to be too untrustworthy to provide truthful testimony. In any event, that left the sole testimony on the subject Hogan’s testimony that he was not aware he was being filmed. Consequently, it was virtually a foregone conclusion the jury would find that Hulk Hogan had a reasonable expectation of privacy.
The jury also found the publication of the sex tape to be offensive, and further, that the sex tape was not a matter of legitimate public concern. One would expect that, in assessing the issue of public interest, the jurors would have asked themselves whether, if they were in Hulk Hogan’s shoes (not literally, of course), would they have thought that what they were doing was nobody else’s business. Obviously their answer was “yes.”
Will the Verdict for $140 Million Stand?
No judgment has yet been entered on the jury’s verdict in favor of Hulk Hogan in the total amount of $140 million. Gawker has threatened to appeal the judgment once it is entered. One of the bases for Gawker’s anticipated appeal is the amount of the award – arguably, unreasonably high and the result of passion and prejudice, rather than reason. However, in most, if not all, states this argument may be made to the trial judge first, and only after that, to the Court of Appeals if the trial judge fails to reduce the amount of the award. If the trial judge agrees that the jury’s verdict is unreasonably high, she may reduce the award by way of a “remittitur”. In the alternative, the judge may grant Gawker a new trial, likely limited to the issue of damages, with Gawker’s liability a given.
One would expect Gawker to file a motion in the trial court to significantly reduce the jury’s award, or alternatively, to grant Gawker a new trial. Gawker’s request for a new trial would likely seek a new trial on all issues, not simply the issue of damages. One of Gawker’s claims is that the trial judge erred in not permitting Gawker to call Bubba as a witness, arguing that Bubba would have testified that Hulk Hogan was aware he was being filmed. In that event, Hulk Hogan would not have had a reasonable expectation of privacy and, therefore, could arguably not prove an invasion of his privacy.
The trial judge could respond to any post-trial motion(s) by Gawker by doing one of several things – reduce the amount of the award and deny Gawker’s motion for new trial on any and all issues; deny the request to reduce the award, but grant a new trial on all issues; deny the request to reduce the award, but grant a new trial solely on the issue of damages; or deny all requests by Gawker. Unless the trial judge awards Gawker significant relief, and perhaps even if she does, Gawker will appeal and will likely obtain some relief from this extraordinary judgment.
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