The long awaited trial in which Hulk Hogan sues the gossip website Gawker for publishing clips of his sex tape is finally here. Gawker is standing firm in its belief that the First Amendment will protect them, but they know better than to put all their eggs in one basket… surely?
In the 1960s, the satirist Tom Lehrer wrote a song called Smut – a short ode to obscenity, penned in response to a handful of high-profile court cases regarding the publication of erotic literature and pornography.
When playing the song live, Lehrer would introduce it by saying:
“[Those] fighting this issue have to fight it – owing to the nature of the laws – as a matter of ‘freedom of speech’ and ‘stifling of free expression’ and so on, but we know what’s really involved: dirty books are fun. That’s all there is to it. But you can’t get up in a court and say that, I suppose.”
In 2012, the gossip website Gawker published an article titled Even For A Minute, Watching Hulk Hogan Have Sex In A Canopy Bed Is Not Safe For Work But Watch It Anyway – a 1,400-word written commentary of a leaked Hulk Hogan sex tape.
This commentary was also illustrated with a video: an edited ‘highlights’ reel from the 30 minute tape (which was sent anonymously to Gawker); nine seconds of which show Hulk actually on the job, ploughing his former-best friend’s wife.
This too has become a high-profile court case, as Hulk is suing now Gawker for $100 million, citing invasion of privacy, and negligent and intentional emotional distress.
This may seem, on the surface, to be a frivolous little scuffle between a ridiculous celebrity and the snarky bad boys who sit at the back of the internet bus – but this case could actually be instrumental in deciding the direction of future privacy laws in the digital age.
Gawker has to fight it – owing to the nature of the laws – as a matter of ‘freedom of speech’ and ‘stifling of free expression’ and so on, but we know what’s really involved: celebrity sex tapes are fun. That’s all there is to it.
But you can’t really get up in a court and say that.
So what do you say?
Fundamentally, Gawker doesn’t really need to say anything. They could sit back, fold their arms and let experts and lawyers and other disappointed parties complain about the lack of ethics and morals and professionalism until they are blue in the face – and then simply point at the First Amendment of the US Constitution: the Amendment that enshrines their right to freedom of speech.
That sort of approach might not make you entirely sympathetic to a jury though, so it’s in Gawker’s best interests to at least try to sweeten the pot a little.
What kind of supplementary arguments are Gawker making to help bolster their defence?
We’ve been keeping a running tab…
The Opening Statements
1) Child Welfare
Usually a tactic deployed in order to shut down even the faintest hint of filth, one of Gawker’s lawyers started by ambitiously attempting to turn the old “Won’t Somebody PLEASE Think Of The Children!!!” routine on its head.
To kick off his opening statement, Mike Berry told the jury all about his two young children and how he had had to leave them both behind to come to Florida to fight this case. He also mentioned his frustration at not being able to fully discuss the details of daddy’s big case with them. He just had to leave.
You’d have thought that any sensible parent would do their best never to mention anything about Hulk Hogan’s wet cock and balls to their kids if they could help it – but not Mike Berry, attorney-at-law.
Presumably his reason for mentioning them straight off the bat was to humanise himself and his clients. No doubt the jury was expecting the defence to be a bunch of snarky New York nihilists, incapable of compassion, sensitivity or sentimentality.
What they’ve got instead is a guy who very much understands when it is appropriate to talk about Hulk Hogan fucking his former best friend’s wife, and when it is not appropriate to talk about Hulk Hogan fucking his former best friend’s wife.
Still, bit of a weird foot to start on.
2) Public Service
If you think that Gawker published the lurid details (and actual footage) of the Hulk Hogan sex tape as a way to boost their bottom line, you’d be wrong. Dead wrong, brother.
Mike Berry went on to inform the court that no adverts had been placed anywhere near this story. In fact, footage of Hulk Hogan engaging in non-simulated sexual intercourse is exactly the kind of content that advertisers hate to be associated with. So – once you factor in the bandwidth costs incurred in serving the video (to the seven million people who watched it before it got pulled) – Gawker was actually running this story at a significant financial cost to the company.
Though this might not strengthen their defence per se, if they can prove that they haven’t profited as a result of publishing Hulk’s hump-a-thon it may help to reduce the amount of damages they may be required to pay should the ruling go south.
3) Holocaust Prevention
The stand-out moment from Gawker’s opening argument, however, was this:
“[Gawker editor, Nick] Denton was born in England. His father was English. His mother, she was from Hungary. A Jew who survived the Nazis. She then escaped the Soviet occupation when she was just 18. Mr Denton grew up with parents who had seen first-hand what happens when speech is suppressed.”
The not-hugely-subtle implication being: “We are showing you uncensored footage of Hulk Hogan rooting a woman in order to stem the rise of fascism. Possibly also communism. If you try to stop us, widespread genocide will undoubtedly follow.”
1) The Sanctity Of Penis Size
Whatever your feelings on the merits or the morals of the case, we can all agree on this much. It is a beautiful thing to consider that a case which may well turn out to be a vital tool in forging privacy law for the internet age is centred around the difference in size between Hulk Hogan’s penis and Terry Bollea’s penis.
But, wait? you might be thinking. I thought Terry Bollea was Hulk Hogan. Surely both those penises are one and the same?
Apparently not. At least not according to Terry Bollea.
Hulk Hogan has a ten inch penis. He has intimated as much in interviews. He has bragged about the size of it, nicknamed it ‘tripod’, and given out riddles in order to solve its exact specs (“It’s two thirds the size of your feet and hands … I got size 15 [shoes]. I wear a size 15 ring … Figure it out man.”)
Terry Bollea, however, doesn’t have a ten inch penis. He swears, incessantly, under oath, that he doesn’t. “I do not have a ten inch penis,” he said. “I do not,” he went on, in front of the judge and jury and the watching public. “Seriously. Terry Bollea’s penis is not ten inches.”
This might seem like a trivial point, but the distinction between Hulk Hogan’s fictional penis and Terry Bollea’s true-to-life penis sits at the very crux of this case. Gawker is attempting to demonstrate that they had legitimate cause in correcting the untruths that Hulk Hogan has been spreading about himself (whether that was about his penis size, his fidelity, his dedication to the “Man Code”) and the sex tape provides conclusive proof.
Terry Bollea, on the other hand, is saying that Hulk Hogan is a character. As such, he (Terry Bollea) should be granted artistic license to tell people Hulk’s dick is whatever size he likes without fear of recrimination.
2) Reality Bites
Hulk Hogan’s reality show, Hogan Knows Best, is one of the big thrusts of the defence. In it, Hulk has shown he has no problem making his personal life public for profit. He has allowed cameras into his private home to film his personal life – including marriage counselling and other such intimate moments – and has therefore given it all up for public scrutiny.
The scene in question that Hulk seemed to stumble over was one in which he was shown, sitting on the toilet, pants around his ankles, his bare arsecheek visible to anyone unfortunate enough to be watching.
Hulk admitted that such a scene was probably appropriate to be broadcast but, for the record, he tried to make clear that the farting noise was a sound effect they added on.
He thought the farting sound was “pretty funny”.
A.J. Daulerio’s Deposition
1) Child Welfare, pt. II
In much the same way that Paul McMullan’s shambolic appearance was a highpoint of the Leveson Inquiry, A.J. Daulerio (the former Gawker editor-in-chief who authored the original 1,400-word commentary of Hulk’s ‘performance’) provided the raucous light relief here.
Doubling down on Mike Berry’s weird and unnecessary invocation of children in this sex tape court case, A.J. Daulerio said this in his recorded deposition.
So keen to show that he isn’t entirely reckless and devoid of moral standard, A.J. Daulerio conceded that he wouldn’t consider publish the sex tape of a child. Under the age of four. So any jury members who were concerned about the same thing happening to a celebrity toddler can rest easy.
David Houston’s Cross Examination
1) No Laughing Matter
Michael Sullivan (one of Gawker’s attorneys; the one who sounds like Owen Wilson) took up a line of questioning with Hulk Hogan’s day-to-day lawyer, David Houston, in which he tried to ascertain why both Houston and Hogan had been joking about the sex tape in TV and radio appearances.
If it truly was causing Hulk such emotional distress – $100m worth of it, no less – how could the pair of them find it in their hearts to crack wise about it on TMZ Live?
It’s a useful thread for them to pick at, because $100m is an awful lot of money (it could, potentially, be ruinous for Gakwer) so anything that may help to mitigate the amount Gawker actually ends up on the line for is helpful. However, it’s a little disingenuous for any of the incredibly smart and educated people in the room to pretend that there isn’t such a thing as gallows humour.
But maybe this was a retaliatory tactic – as both Emma Carmichael and John Cook (Gawker editorial staff who gave testimony via live video link) were forced to awkwardly explain the jokes that they had been making in internal communications, after papers had been served, about Hulk Hogan’s “giant… lawsuit”.
2) Old News
As the defence points out, still images of (and rampant speculation about) the contents of the Hulk Hogan sex tape had appeared online and in other publications long before Gawker ever published the article under dispute. Pictures had been uploaded to thedirty.com six months earlier. Articles had appeared in the National Enquirer.
The obvious retort to which is: Yeah, but Gawker published actual footage from the tape, of Hulk Hogan and Heather Clem visibly chowing down on one another’s crotches.
But the slightly more complex reading of it isn’t to do with the fact that thedirty.com and the National Enquirer haven’t been sued over this too; it’s that the story was already in the public domain. Other publications had put it out there, so had generated a public interest in the story. Gawker was working an established angle.
Nick Denton’s Deposition
1) Extreme Patriotism
Gawker‘s safest pair of hands is the founder and CEO of the company, Nick Denton. Where A.J. Daulerio (in Denton’s words) is “a buccaneering fellow” and (in our words) “a fairly massive liability”, Denton seems to have the clearest idea of what he and his company have set out to do and why these stories serve a purpose.
His first argument is flattering to America. In his crisp, British accent Denton says “I believe in total freedom and information transparency. I want everyone to know that I think society – this country that I moved to – would be better off if we could talk freely about everything. I’m an extremist when it comes to that. That’s why I love the US… I want to make the fullest use of that liberty.”
2) Access All Areas
Denton’s deposition continued:
3) The Newsworthy Penis
What makes a penis newsworthy? Does anyone know? Nick Denton certainly doesn’t seem to. Stiff, floppy, Eric Dane’s, Hulk Hogan’s – Nick Denton, when pressed by Hulk’s legal team, couldn’t put his finger on what qualities exactly defined a Newsworthy Penis.
Thankfully, this isn’t going to trip him up because Nick has overseen the publication of all sorts of dicks on Gawker Media. Political dicks, TV dicks, quarterback dicks. So unless Hogan’s team have a definite idea of what actually constitutes a Newsworthy Penis – and why Hulk Hogan’s penis falls short of that ideal – then Denton’s come-one, come-all approach to dickpics should put him in good stead.
Mike Foley’s Cross-Examination
1) Ethics V Law
Gawker‘s reputation was subjected to an absolute mauling by a journalism professor and ‘ethics expert’ hired by Hulk Hogan’s legal team late on Wednesday night. Professor Mike Foley accused Gawker of bad practice, of undue intrusion into a subject’s life, of failing to meet the standards of basic ethical journalism.
It was impassioned stuff, stirring the sorts of feelings that the recent Oscar winning movie Spotlight tried to provoke. It brought forth vision of journalism as a profession of honour, of integrity and valour; not gutter-focused sex-trash.
The only trouble is: ethics are not legally binding. Laws are. And as sensible and as worthy as the Society for Professional Journalists’ Code of Ethics may well be as a guideline, it is not the law of the land. None of Foley’s moralising can change that, and no amount of lazy behaviour precludes a publication’s right to the privilege of the First Amendment.
Gawker was never going to come out of this smelling of roses. But that’s not the issue at hand.
The case continues…