GAWKER SEX TAPE

In September 2012, a package with no return address arrived on the desk of Gawker editor A.J. Daulerio. Inside was a grainy sex-tape of famed wrestler Hulk Hogan and his best friend’s (now ex-) wife, Heather Clem. This kind of dirt was right up Gawker’s alley. Founded in 2002 to take on “the daily Manhattan news and gossip,” it specialized in the tawdry and salacious. The following month, Daulerio published a shortened version of the tape, with an accompanying essay meditating on the everyman appeal of celebrity sex tapes, calling this one, in particular, “a goddamn masterpiece.” Millions clicked.

Hogan, a gruff-talking, wild-eyed mountain of a man from Tampa, Florida, was perhaps professional wrestling’s most recognizable and bankable star, with his trademark bandana, blond handlebar mustache, and huge muscles. Outraged and embarrassed that his bedroom exploits were exposed, he demanded that Gawker take down the video. Gawker refused. Hogan’s lawyer contacted entertainment-industry attorney Charles Harder, who filed two invasion-of-privacy suits on his behalf.

The first suit, in state court against his co-star’s husband and Hogan’s friend Bubba the Love Sponge (his legal name!), was quickly settled. Bubba had set up cameras throughout his home and secretly taped the tryst. In the settlement, the financial terms were not disclosed but Hogan won control of the copyright to the tape, thereby adding copyright infringement to his complaint.

The suit against Gawker would depend on the court’s interpretation of the newsworthiness of the tape. Was it an undue invasion of privacy? Or, because of Hogan’s very public persona, was it of note to the public? Typically, courts had deferred to traditional media, particularly newspapers, on this question. If it were covered, the jurisprudence generally went, it must be of public interest. Yet this raises another issue. If Daulerio had written an accurate account of what was on the tape, Gawker would never have been dragged into court. It wasn’t reporting on Bollea’s private activities that was problematic. It was the tape. Beyond his in-the-ring exploits, Hogan had bragged about the size of his penis on Bubba’s radio show, broadcast his family’s life on the reality TV show Hogan Knows Best, and revealed his marital infidelity in a memoir. These were taken as evidence that Hogan’s private life was public. In the federal court’s opinion, “the Video is a subject of general interest and concern to the community.” The court denied Hogan’s request that Gawker take it down.

It didn’t end there. Gawker had made its share of enemies over the years. Its founder, Nick Denton, had also created and run a by-now-defunct gossip site, Valleywag, that aimed to puncture what he thought was overly starry-eyed coverage of Silicon Valley’s hotshots. He took particular glee in targeting venture capitalist Peter Thiel, reveling in Thiel’s business failures and, in one fateful post, outing him as gay (Denton, for what it’s worth, is also gay, and has never expressed remorse for the outing).

Thiel contacted Harder to offer to bankroll the suit. This was not unprecedented. Outside groups—the American Civil Liberties Union (ACLU), say—have funded lawsuits for decades. Still, Thiel’s motive was revenge. “Cruelty and recklessness were intrinsic parts of Gawker’s business model,” Thiel wrote in the New York Times. “It is ridiculous to claim that journalism requires indiscriminate access to private people’s sex lives.”

Florida state court would be a fruitful venue. The ever-popular Hogan was a hometown hero and the case would be tried before a jury of his peers. Florida state laws stipulate that defendants are liable for huge sums of damages, even while appealing. A jury trial, unlike a federal trial in front of a judge, meant the defendants had to convince a group of Floridians the sex tape was, in fact, newsworthy.

Judicial decisions on First Amendment protections of the press came largely from an era before the rise of digital media. Newspapers pushed the lines of propriety at times, but also acted as gatekeepers, presumably accountable institutions between the details of private lives and the public eye. That barrier has eroded in the digital age, when, with a click, sites of varying levels of journalistic integrity publish anything that can be made viewable: sex tapes, medical and financial records, revenge porn.

American libel laws have for decades provided robust protection for newspapers and other media publishing anything true. To be found libelous, a story has to be both false and harmful. But that standard is insufficient in the face of revenge porn. In his right-to-privacy lawsuit, though, Hogan did not have to prove that the tape was untrue or harmful. He simply needed to show that it should not be treated as news fit for public consumption.

As a result, his lawyers built a creative case around the distinction between Hulk Hogan the public figure and Terry Bollea, the man beneath the muscle and myth. Hulk Hogan had discussed his penis on the radio, his lawyers argued, but Bollea had not. Hogan had written of his extramarital affairs, but not Bollea. Hogan was the all-American everyman superhero but Bollea was just a guy living his life.

When Gawker’s lawyers played Hogan’s radio segment bragging on the size of his member, Hogan retorted, “Well, it’s not mine because mine isn’t that size, but we were discussing the length of Hulk Hogan’s.”

Gawker’s representative: “Seriously? So you weren’t discussing—“

“No, seriously, I do not have a ten-inch penis. No, I do not, seriously.”

Hogan’s lawyers thus painted the sex tape as a vulgar intrusion into the private life of a man who, despite appearing to be in the public eye, really was not.

For their part, the plaintiff’s attorneys painted Gawker as disconnected, smut-obsessed Manhattanites whose taste in “news” included things very much beyond the scope of that word. During a deposition, Daulerio was asked if there were any scenario where a celebrity sex tape would not be of public note, and thus publishable.

“If they were a child,” he said.

“Under what age?”

“Four,” Daulerio said with typical Gawker snarkiness. The “joke” was lost on the Florida jury.

The ironic, detached, combative attitude, which Gawker employed in creating their own particular sneering style of writing, played well for web traffic, and helped define the sensibility of online media more generally. Deliberately offending people, though, did not win many friends in state court. All Hogan’s lawyers had to do, in essence, was convince the jury that this story went too far; that Gawker relished going too far, under the protection of the First Amendment, likely turned the jury against them.

Gawker’s lawyers responded with a stout defense of the freedom of the press: “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. 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.”

It was little surprise when the jury sided with Bollea/Hogan. What was shocking was the amount: $140 million for compensatory, emotional, and punitive damages.

Gawker Media and Denton declared bankruptcy, and Daulerio was forced to pay hundreds of thousands of dollars and left penniless. Gawker Media was bought in its bankruptcy sale by Spanish-language media giant Univision; while most of its e-publications such as Gizmodo, Deadspin, Jezebel live on under new owners, Gawker the site was shut down. Thiel was afterwards jubilant, publishing an op-ed in the New York Times rejoicing in Gawker’s defeat, promising to continue bankrolling Hogan if Gawker Media appealed (it didn’t), and calling “the defense of privacy in the digital age… an ongoing cause.”

The courts did not extend Gawker the same leash they had traditionally afforded newspapers, allowing news gatherers to decide what counted as news. It may be something inherent in the medium: a detailed textual account of Hulk Hogan having sex would likely have been acceptable (if still not in great taste), but a photo and video carry with them more potential to violate their subjects. Meanwhile, a cutthroat media environment directly ties profits to page views and provides less accountability from news outfits, while the ubiquity of cameras allows for more access to more private pieces of more lives. Less than ever is private, and what is private can be made lucrative.

The Hogan case was doubly significant for journalists. A billionaire latched onto someone else’s suit with the express purpose of pummeling a news organization he didn’t like. That precedent is not a legal one, but it does raise the specter that those with money could make newsrooms disappear. Second, Florida court did not offer online media the same faith that courts have placed in newspapers for decades. The relevant question, as the New Yorker’s Jeffrey Toobin asked, is “whether the law, instead of treating every publication as a newspaper, will start to treat all publications as Web sites.”

The case came to be seen, especially by journalists, as a referendum on the freedom of the press. The revelation that a vindictive Thiel was bankrolling Hogan’s suit only intensified that sense. Gawker’s settlement included the stipulation that there would be no appeal, even as some in its newsroom pushed for it. “All-out legal war with Thiel would have cost too much, and hurt too many people, and there was no end in sight,” Mr. Denton wrote in a blog post afterwards. “Gawker’s nemesis was not going away.”

To call a sex tape journalism is to push the limits of public interest. Gawker’s attorneys should have pointed out the risks, especially the potential for ending up in an unfriendly state court. If anyone is to blame for Gawker’s demise, perhaps it should be Nick Denton, who gave his enemies the sledgehammer they used to pulverize him and his company.