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How Hulk Hogan Body Slammed Gawker to the Mat
and, Rolling Stone Got Hammered for Being Sloppy

Copyright © 2017 Mark H. Barinholtz. All rights reserved.

Introduction

              Is the media really crooked, or just occasionally reckless? With all the hoopla about “the dishonest press” this past year, I decided to write about two real-life, multi-million dollar jury verdicts handed down in 2016 that surprised almost everyone, but for different reasons. In one case, Rolling Stone magazine, which we routinely look to for hard-hitting, truthful stories, was found guilty of shoddy journalism in reporting a disputed account about a rape on campus at the University of Virginia. A federal jury found Rolling Stone and one of its reporters responsible for defaming an associate dean at the college as a result of statements made and repeated in an article about the incident. In the other case, the now-defunct online media tabloid Gawker was pounded into oblivion by Hulk Hogan for violation of his privacy rights. Gawker posted a clip excerpted from an allegedly unauthorized sex tape showing Hogan performing -- shall we say -- outside of the wrestling ring. (Cover your eyes all you Little Hulksters!) The two cases shed light on how the laws of copyright, defamation, and the right of publicity, can sometimes intertwine to make for odd bedfellows. (No Hulk Hogan pun intended.)

Hulk Hogan Head Butts Gawker into Bankruptcy

              Around 2006, the actor and former wrestler known as Hulk Hogan (Navigate to YouTube ) was videotaped having sex with a woman who was not his wife. (the Video) Although it was reported that Hogan had consented to engage in such extra-marital activity, he later claimed he was unaware that the taping had taken place. He claimed he would have objected had he been told the encounter was being recorded. Around April 2012, Gawker, a New York based, online news outlet known for publishing salacious gossip and other less than newsworthy stories, posted on its website excerpts edited from the Video. Hogan made numerous requests for Gawker to remove the post from Gawker’s site. It refused.

              Round One -- Although he professed to have no prior knowledge about the Video, and that he did not consent to its creation, Hogan initially decided to claim copyright infringement. Before he could do that he needed to get control over the Video. First, Hogan sued his former friend, and peep-hole videographer, radio shock jock Bubba the Love Sponge, and Bubba’s wife (who appeared in flagrante with Hogan in the Video) in a Florida federal court. That action was settled, as between Hogan and Bubba only, within a matter of weeks after filing. As part of the settlement with Bubba, Hogan obtained the copyright rights in the Video. He registered a claim to copyright in the Video with the U.S. Copyright Office, and then brought suit against Gawker Media and several of the individuals allegedly responsible for the publication. The copyright registration shows that although Hogan’s former friend, Bubba the Love Sponge, was the creative author of the motion picture work, Hogan had acquired ownership of the entire work by virtue of a transfer “by written agreement.” Obviously, Hogan had reached an agreement which allowed Bubba, who by then was divorcing his wife, to leave the ring early. Hogan’s remaining federal complaint had also alleged claims pertaining to violations of privacy and publicity rights, and for redress of emotional distress. Gawker defended on the basis of the First Amendment and freedom of the press.

              The federal district court issued a provisional ruling in the controversy which devoted some ink to an abbreviated fair use analysis of Gawker’s post of the clip excerpt from the Video, together with other related content, from a copyright standpoint. Significantly, the court obviously felt it was somewhat incongruous for Hogan to claim from a factual standpoint, that he was taped completely without his knowledge and permission, but then applied to the copyright office for registration of the Video as its owner. The District Judge denied Hogan’s request for a preliminary injunction on the basis of copyright infringement, suggesting the validity of the copyright registration was questionable and, that in any event, that issue was best addressed after a full airing of the facts at a trial on the merits as to Gawker’s First Amendment defense.

              Round Two -- After the federal court side-stepped the copyright claim, Hogan dismissed the federal case. The controversy went forward in a separate new filing in a Florida state court on state law claims involving rights of privacy, publicity and infliction of emotional distress. There, the lower court was persuaded to issue a preliminary injunction ordering Gawker to remove the Video post. Although Gawker obtained a stay of the preliminary injunction on appeal on the basis that it was a prior restraint in violation of the First Amendment, the case was returned to the lower court for a full-blown trial on the merits.

              The six-person state court jury was apparently most focused on the invasion of privacy claim, a personal injury matter, and its corresponding harm. One of the unique aspects of this case was Hogan’s argument that he felt his life was comprised of two personas, one embodying his on-air, professional wrestling character (Hulk Hogan) and another more private persona being his own real-life identity. (Terry Bollea) (Navigate to The Independent ) In his early testimony the “private persona” Bollea (although appearing on the witness stand at trial decked out in the familiar garb of the Hulk Hogan persona, including his signature bandana, but in black) claimed that not only was he (Bollea) personally humiliated by the publication of the Video excerpt, but that even macho “Hulk Hogan” felt the hurt. Bollea argued that just because his wrestling character included boasting about sexual prowess, such fact did not cancel out his right as an individual to have a private life in the bedroom -- even if that bedroom was in his friend’s house and involved the friend’s wife. That sounds to me like a confusing and risky way to tell a jury that you’ve been emotionally injured and humiliated by the outing of private facts about your sex life. But it worked!

              Ultimately, the Florida jury found in favor of Hogan and awarded him a whopping $140 million total in damages. The award was reported to be comprised of $115 in compensatory damages (which included $60 million for emotional distress) and another $25 million or so for punitives. Oddly, none of the reports regarding the trial and the lead-up to the trial, ever explained how the tape was leaked to Gawker in the first place.
An interesting sidebar to the Hogan v. Gawker saga, is the involvement of Peter Thiel, a Silicon Valley tech billionaire who financed Hogan’s efforts against the media outlet. (Navigate to The New York Times ) For more about that, see final thoughts set forth below about lowering the bar on suing the media.

A Rolling Stone Investigation Falls Short of Best Practices

              In November 2016, a federal jury awarded $3 million to a former University of Virginia associate dean who claimed a Rolling Stone magazine article (Article) wrongly portrayed her as the odious culprit in a scenario involving an alleged rape claim. A woman, identified only as “Jackie,” allegedly claimed she was raped at a frat party on campus, and then claimed when she first went to the dean to report the incident she was discouraged from further reporting the crime to the police.

               Before publishing the Article, Rolling Stone apparently never spoke with the alleged attackers -- a departure from journalistic standards. Instead, apparently based in part on a 2015 Office of Civil Rights report, and Jackie’s personal account of the events, the dean was specifically identified as having a role in fostering the “hostile environment” toward assault complaints at the campus. Certain other statements made in the Rolling Stone Article named the dean as central to the problem. Recklessly, the magazine just ran with the story. Four months after the Article was published, a police investigation found no evidence to back up the rape claim. And, after other reporters from other media outlets began interviewing the alleged attackers, Jackie’s story became shaky. But it was too late. Not long after the now-discredited Article was posted online, it attracted more than 2.7 million hits.

              It is pretty basic journalistic practice to get statements from both sides before rushing into print. As a lawyer involved in a number of cases that have generated some heat, I’m often asked by reporters about my view of court decisions rendered in cases in which I have appeared. The reporters routinely indicate they’ve solicited a comment from my opposing counsel. So here, where Rolling Stone completely failed to approach the alleged attackers to get their side of the story, the magazine dropped the ball journalistically speaking. That proved costly, particularly since the police investigation came up with nothing.

              Another aspect of the verdict makes this scenario interesting from a legal standpoint. In cases where defamatory statements, or statements are made the issue, the standard of proof varies with the plaintiff’s status as a “public figure.” For purposes of a defamation case, the concept of public figure status falls into two main categories. First, is the “all purpose” public figure. Think Rahm Emanuel. Putting aside the special kind of ritualistic mudslinging that goes on during political campaigns, if a public figure is inclined to sue the media, say the Chicago Tribune, his burden of proof would be significantly higher than the ordinary citizen’s. But there is also a construct known as the “limited purpose” public figure. In Rolling Stone’s case, the magazine as a defendant, successfully persuaded the court to impose limited purpose public figure status on the plaintiff dean for purposes of the trial. That raised the bar on her burden of proof, but it still wasn’t enough to save the day for the magazine. The jury found the behavior of Rolling Stone and its reporter, in making and repeating false and misleading statements about the dean’s acts, was so egregious that given the facts the higher standard had been met. The result, a combined $3 million verdict against Rolling Stone and its reporter.

Conclusion

               Both Hulk Hogan, and the University of Virginia dean, were able to convincingly impress their respective juries with the severity of their injuries to their psyches and reputations. The dean told her jury that after the defamatory publication she feared for her safety, suffered very severe stress which impacted her family life, and even contemplated suicide. Hulk Hogan told his jury that not only had he lost valuable endorsement deals (a harm more closely tied to a right of publicity violation), but that he had been “completely humiliated” both personally and professionally as a result of the Video excerpts being made public. This pair of cases may serve as a canary in the coal mine, portending an intensified public sentiment in favor of zealously protecting privacy rights in this era of hacking, leaking and concerns about cybersecurity. And in Hogan’s case, a potentially scary look into the future where the roles of David and Goliath are reversed when billionaire, third-party financiers decide to skewer the media via someone else’s claim.

Final Thoughts

During the 2016 presidential campaign, contender Donald Trump actually advocated for lowering the bar, in terms of the nature and character of proof required, when suing the news media, i.e., making it easier for public figures to sue (or at least threaten) journalists and media outlets. And another curious and perhaps not coincidental thought -- what importance should be put on reports that Hogan’s billionaire angel, Peter Thiel, a professed supporter of protection for journalists, was at the same time a pledged delegate for Trump during the 2016 Republican National Convention? Which side is the billionaire on? No one likes fake news, or defamatory or unnecessarily hurtful stories. But the First Amendment is important. So, we’ll be watching closely to see just what’s coming next.

 

Copyright © 2018 Mark H. Barinholtz.
All rights reserved.