In a crushing defeat for Gawker Media founder Nick Denton—an outcome that could threaten the very existence of Denton’s privately-held online media company—a Florida jury on Friday night awarded $115 million to wrestling legend Hulk Hogan in his sex video lawsuit.
The astonishing verdict came after a two-week trial in a St. Petersburg courtroom and less than six hours of deliberation by the six-member jury, and gives the bandana-wearing, mustachioed celebrity $55 million for economic injuries and $60 million for emotional distress for invasion of privacy.
However, the jury’s colossal award doesn’t even include punitive damages, which the jurors must also decide against Gawker for posting a less than two-minute-long video in October 2012 of Hogan in bed with the wife a friend. Only nine seconds of that Gawker video—which was edited down from the 30-minute-long original, and accompanied by a mocking commentary by Denton’s co-defendant, A.J. Daulerio—showed actual sex.
What’s worse for Gawker, under Florida law, the New York-headquartered company is required to post a bond for the full amount of the jury’s award, up to $50 million (the cap for the bond), as both sides’ attorneys pursue their options.
As Denton said repeatedly in interviews leading up to the trial, that alone could put him out of business.
For Gawker Media, the verdict was a nightmare scenario made flesh, and co-defendants Denton and Daulerio, Gawker’s editor-in-chief when he published the video, sat frozen in apparent shock as the verdict was read.
By contrast the 62-year-old Hogan—legal name: Terry Bollea—burst into sobs, tears of joy no doubt, while he was hugged by his triumphant team of attorneys, and later departed the courthouse amid a throng cheering admirers.
“We’re exceptionally happy with the verdict,” Team Hogan said in a statement. “We think it represents a statement as to the public’s disgust with the invasion of privacy disguised as journalism. The verdict says ‘No more.’”
Denton, for his part, tried to put the best face on a legal catastrophe that occurred with the apparent encouragement of trial judge, Jeb Bush appointee Pamela A.M. Campbell of the Pinellas County Circuit Court. She consistently ruled against Gawker and in favor of Hogan, who enjoyed a home field advantage as a resident of nearby Tampa.
Campbell, according to observers sympathetic to Gawker, delivered instructions to the jury that defied legal precedent in cases involving news organizations—namely, she rejected the notion that the First Amendment usually is a more powerful consideration than privacy when it comes to public figures.
Instead, Campbell told the jury that there is a balance between the right of free speech and the intrusion into private lives—instructing the jurors to determine the difference between what “ceases to be the giving of legitimate information to which the public is entitled and becomes a morbid and sensational prying into private lives for its own sake.”
According to knowledgeable observers, that was practically a direction to find for the plaintiff.
In a key ruling that was perhaps a fatal blow for Team Gawker, Judge Campbell quashed the defendants’ subpoena for testimony by radio jock Bubba “The Love Sponge” Clem, the wrestler’s former friend who urged Hogan to have sex with Heather Cole Clem, his then-wife, and then recorded the action with cameras placed strategically in the bedroom.
According to documents that Judge Campbell had sealed and the state appeals court ordered unsealed, Bubba Clem had told FBI agents that Hogan had been aware that cameras were recording him when he had sex with Heather Clem in 2007.
After his interview with the FBI, for which a perjury charge can be leveled at anyone who lies to a federal law enforcement agent, Clem had sworn in a pre-trial deposition that Hogan was in fact not aware of a camera or a recording device when the wrestler had sex with Clem’s wife in Clem’s bedroom.
Clem’s attorneys had said that if called to testify, he would have pled the Fifth Amendment against self-incrimination, and Judge Campbell indicated that she quashed Gawker’s subpoena because Bubba “The Love Sponge” struck her as an untrustworthy witness.
“Given key evidence and the most important witness were both improperly withheld from this jury, we all knew the appeals court will need to resolve the case,” Denton said in his statement. “I want to thank our lawyers for their outstanding work and am confident that we would have prevailed at trial if we had been allowed to present the full case to the jury. That’s why we feel very positive about the appeal that we have already begun preparing, as we expect to win this case ultimately.”
Team Gawker, which argued that the video and accompanying mocking commentary were protected by the First Amendment and justified because Hogan is a pop culture icon who promiscuously brags in media interviews about his sex life—will undoubtedly seek to overturn the verdict at the state appeals court level and even higher courts in what is likely to be protracted and ruinously expensive litigation.
The verdict came down after a morning of impassioned closing arguments from Hogan attorney Ken Turkel and Gawker lawyer Michael Sullivan. According to an account in The Hollywood Reporter, Turkel claimed that Hogan/Bollea was an innocent victim of Gawker’s prurient mockery at a low point in his life, at a time when he was going through a contentious divorce.
“Mr. Bollea didn’t create this,” Turkel said. “He didn’t consent to the video or post. He wasn’t even called before this post was put up… The idea that in 2012 this video was sent to Gawker and they didn’t have the common decency to make one call gives you all you need to know about whether they are protected by the First Amendment.”
Turkel singled out Denton for special disdain—“he’s so proud of being the guy who ruins lives”—and skewered Daulerio, who in a deposition shown in court last week sarcastically remarked that a sex video involving a 4-year-old would be off-limits to Gawker. “They want to talk about First Amendment, wrapping the constitution around this guy? Please. Please.”
Sullivan, arguing for Gawker, said the essence of free speech is permitting the airing of matters that, by definition, might be unappetizing.
“We don’t need the First Amendment to protect what’s popular,” he said. “We need a First Amendment to protect what’s controversial.”
The jury in Pinellas County, clearly, was unimpressed.