Hulk Hogan's NSFW Gawker Lawsuit Is a Free-Speech Battle Royale

In a courtroom on the Gulf Coast of Florida, a tan, mustachioed man is ready for a fight. He's dressed head-to-toe in black, a bandana wrapped around his head and a cross hanging from his neck. He's fought hardened foes like André the Giant and the Iron Sheik. This time around, the former WWE heavyweight champion is up against a different sort of challenger: a New York news and gossip site and its ready-to-rumble boss.

It’s Hulk Hogan versus Gawker Media. And the battle royale is on for the future of free speech, privacy, and online media.

But the stakes for Gawker aren't just a matter of principle. Gawker has faced mounting expenses in the past few years; a nine-figure verdict or an expensive, protracted legal fight could take a serious bite out of the company's bottom line. But Hogan has remained unyielding. Gawker must hope jurors agree with its argument that a sex tape can have news value. In the process, the case will test the limits of personal privacy in our celebrity-crazed, meme-tastic Internet age.

On October 4, 2012, Gawker editor A.J. Daulerio posted a story headlined "Even for a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed is Not Safe For Work but Watch it Anyway.”

The post featured a 101-second video clip that included 9 seconds of Hogan having sex with Heather Clem, the wife of his best friend at the time, radio host Bubba the Love Sponge. Gawker says it received the Hogan sex tape anonymously on a DVD in the mail. It was cut down to an edited reel and posted alongside an article describing the longer video—and offering an analysis of why we, as a society, are obsessed with celebrity sex.

Hogan was furious. He sued the site, claiming Gawker had committed a “gross and egregious intrusion” by posting the video without his consent and making money off the wrestler’s private encounter in the form of Internet traffic. (Gawker claims in court documents that it didn't display ads next to the story.) He also claims the video was filmed surreptitiously in 2006 and that he had no knowledge of its existence. "The First Amendment does not cover this type of conduct," Charles Harder, Hogan's attorney in the trial, said in an email of Gawker's actions.

During three years of legal skirmishes leading up to the trial, Gawker has vocally defended posting the video. The site argues that Hogan has spoken openly about both his private life and his sex life in two autobiographies and multiple radio interviews, including one in which he said he would never sleep with Heather Clem (citing "man law, brother," according to court documents). In March 2012, news reports of an alleged "Hulk Hogan sex tape" began circulating online before Gawker posted the clip.

Because his sex life had already become a part of his public persona and controversy surrounding the sex tape was bubbling, Gawker argues, it was fair to post the video ("a matter of public concern," as Gawker put it in court documents), especially because it showed that he did, in fact, sleep with Clem. "You join this ongoing discussion, do it in a way that adds commentary to it, and the plaintiff [Hogan] sues you for $100 million because he doesn’t like what you said," says Seth Berlin, the attorney representing Gawker in the trial. (Berlin represented WIRED and its parent company Condé Nast in a 2010 lawsuit.)

“The question of ‘What is newsworthiness?’ is going to determine the case,” says Clay Calvert, a professor of mass communications at the University of Florida and director of the Marion B. Brechner First Amendment Project.

Under Florida law, private information can only be published if it is a matter of “legitimate public concern.” Calvert says that in the past, newsworthiness typically has depended upon factors like the extent to which the person voluntarily became famous; the depth of intrusion into the person's private life; and the social value of the facts. Some legal analysts tell WIRED that it's not completely clear if Gawker's video clip of Hogan meets all of these criteria—whereas say publishing a photo of Anthony Weiner's penis (link NSFW) after he denied sexting is more obviously newsworthy, since he was a politician accountable to the public.

"Traditionally courts have deferred to journalists and have said, ‘We’re not going to go back and edit your stuff. We’re going to trust your judgment,’" Calvert says. Hogan's hope is that a jury weighs Gawker's judgment and finds it wanting.

For a case involving someone named Hulk and someone else named Bubba the Love Sponge, the questions at stake are actually pretty serious. The trial cuts to the heart of the role of the media and where to draw the line between free speech and privacy on the Internet. Legal analysts say that whoever loses the first round will no doubt appeal—along with the principles up for debate, the personal stakes are also high.

For Gawker founder Nick Denton, the trial has become a free speech crusade. "This is an opportunity to reaffirm the legal protection for free expression and the free press, in an age of ubiquitous marketing and spin," Denton wrote in a Gawker post last summer. "I didn’t really want to be this generation's Larry Flynt, but the law is made by stories like this and cases like this."

Gawker has a financial incentive as well. Denton acknowledged to Capital New York last summer that a massive payout to Hogan could lead to a "disaster" scenario financially. He also told staffers that it could require him to sell part of the company. Earlier this year, he sold a minority stake in his 14-year-old company to an outside investor for the first time. Legal wrangling has already been costly for Gawker; fighting appeals would be, as well.

For Hogan and celebrities like him, legal analysts say, it's more than just money at stake. “If a massive jury verdict comes to Gawker, some journalists are going to think twice about what they say and show,” says Eric Goldman, a law professor at Santa Clara Law. “If [Gawker] gets a clean bill of health from the jury, it very well could not only give comfort to people, but encourage them to push the envelope further.”

From a legal standpoint, the Hogan trial likely won’t set major precedents for sex tapes or free speech on the Internet. Jury trials are often too specific, plus the trial is being adjudicated in Florida state court, which means that even if it were to be appealed, the decision would only have a precedential impact on the state itself. However, if the case is appealed and a decision is handed down by Florida appellate judges, then courts in other states could look to it for guidance in future cases.

But even though the case won't set federal precedent (unless it moves to the Supreme Court), it could still have an impact that extends beyond the individuals involved, whichever way it's decided. Legal experts say it could put the Internet's “anything goes” sensibility to the test. Amy Gajda, a law professor at Tulane Law School and the author of The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press, says that nudity and sexual activity, like health information and social security numbers, have long been considered private information. The trial may offer some insight into whether, as a society, Americans actually do believe in setting limits on the Internet—and where the First Amendment allows those limits to be drawn.