Hulk’s lawyers say Gawker founder was ‘playing God’ in closing court arguments

As the $100m defamation case against Gawker Media over the posting of a sex tape featuring Hogan comes to a close, the first amendment is a core issue

Hulk Hogan Gawker trial FloridaIn his court-approved black headscarf, Hulk Hogan, aka Terry Bollea, listened impassively to closing arguments in his $100m defamation case against Gawker Media over the posting of a sex tape featuring the pro-wrestler and Heather Cole, wife of his best friend, DJ Bubba “the Love Sponge” Clem.

Kenneth Turkel, a lawyer for Hogan, told jurors Gawker editors had not even had the “common decency” to call Hogan for comment before they posted the video.

Turkel walked jurors through Hogan’s case: that his right to privacy was gratuitously compromised by Gawker, that his reputation was materially compromised, and that he suffered emotional distress of “outrageous intensity and duration”.

Turkel accused Gawker founder Nick Denton of “playing God over Bollea’s right to privacy” and offered a meditation on how celebrity affects expectations of privacy.

Denton, Turkel said, had effectively argued that losing privacy is a freeing experience because “you don’t worry about anything else because someone has taken your private life and put it out there”.

The 10-day trial was full of salacious details but the core issue spoke to a serious first amendment issue: did Gawker have the right to post one minute and 41 seconds of the sex tape, approximately nine seconds of which featured actual sexual content?

Hogan’s lawyers said the gratuitous nature of Gawker’s decision exempted the media firm from constitutional protection.

Lawyers for Gawker argued that publication was a legitimate scoop because Hogan had talked openly about his sex life before, including on Howard Stern’s radio show.

The company has warned that if Hogan wins the case, the decision could not only destroy the company – a loss could cost the site up to $50m, even with an appeal – but cripple press freedom.

But Hogan’s lawyer dismissed that line, arguing that there was only one reason for posting the tape: to build traffic and sell ads after a five-month news “dry spell”.

Throughout the trial, lawyers sparred over the actual value of the post to Gawker, with Hogan’s lawyers estimating the sex tape was worth hundreds of thousands of dollars. Gawker maintains the post was worth just $11,000.

Gawker obtained the tape without knowing its exact origin. The editor involved said the post was intended as a commentary on celebrity sex tapes. Hogan, 62, testified during the two-week civil trial that he still suffers from the humiliation which arose from the video’s release.

“What’s disturbing about Gawker is not what they do, but how proud they are of it,” said Turkel, who said the character of the intrusion was an accurate “reflection of its owner Nick Denton”.

Hogan’s lawyers have painted a picture of man who has inhabited the same entertainment character for 35 years.

“Nobody cares who Terry Bollea is,” Turkel told the court. “They just don’t. He’s a man who grew up in a working class area of Tampa. He’s so self-conscious about the size of his head he wears bandanna.

“He can’t trust a lot of people. He doesn’t have a lot of friends, because everybody wants Hulk Hogan. He doesn’t have much privacy but one of the places he thought he had was in a friend’s bedroom. Gawker turned his life upside down.”

Lawyers for Gawker said the tape of the professional wrestler was not a real celebrity sex tape – “it was not a Kim Kardashian” – and contained just nine grainy seconds depicting sexual activity.

The lawyers said the case revolved around context. Gawker could not be held responsible for denying Hogan his constitutional rights, they said, because “anything that people are already talking about is fair game”.

Gawker lawyer Michael Sullivan argued it was implausible for editors to separate the character of Hulk Hogan from Bollea when, as Hogan, he had frequently “chosen to put his private life out there. So to claim Gawker should treat him as Bollea makes no sense.

“He’s talked about his sex life, how big his penis is, and when he talks about his penis it’s to promote his daughter’s singing career. He’s discussed his sexual encounters. Now he tells you this was the Hulk Hogan character.”

Gawker said its intention was to show the ordinariness of celebrity sex tapes, not to get into the realms of protected speech. The legal point is that all speech is protected, irrespective of its nature.

The jury heard that failure to protect Gawker could lead to the US “becoming a nation where powerful people and celebrities use the courts to punish people for saying things they do not like”.

Earlier in the case, Gawker editor AJ Daulerio said he posted the sexual activity; the rest of the tape, he said, was “banal conversation” between Hogan and Cole. Lawyers for the media firm argued that the point Gawker wanted to make was that celebrity sex tapes are “rather ordinary”.

Gawker’s counsel, Sullivan, argued that if Hogan was as upset as he claimed to be by the posting of the tape, he would not have timed his initial complaint, 12 days later, to go out on the 5pm news.

“He didn’t see a therapist or a counsellor, but said he had lost sleep and appetite,” Sullivan said. “But he did tear up on the Kathie Lee Gifford show.

“That’s the extent of his emotional distress. He’s a man who is used to publicity. He’s used to public attention. We know he’s not upset by exposure because he exposes himself to the world. He has a different base line for privacy and that has to be taken into account.”

Gawker’s lawyer said the company had not put anything in the public domain Hogan had not already put into there himself.

“You’d be hard pressed to think of anyone except a porn star who’d make his attributes a part of his public persona,” he said. “But this is not an ordinary man with ordinary sensibilities.”

After the closing statements, Gawker issued a statement which said: “We’re disappointed the jury was unable to see key evidence and hear testimony from the most important witness. So it may be necessary for the appeals court to resolve this case.”

The company said Bubba Clem “originally told his radio listeners that Hulk Hogan knew he was being taped” and “should have been required to appear in court and explain what really happened”.