Hogan had sued the website for posting a video clip in 2012
featuring him having sex with the wife of his then-best friend,
the radio shock jock Bubba the Love Sponge Clem.
Both sides cast the case as a crucial test of the balance
between the right to privacy and freedom of the press in the
digital age, when a celebrity sex tape can reach millions of
viewers with one click of a button.
"The jury's decision is somewhat of a black box," said Mary-Rose
Papandrea, a University of North Carolina law professor who
previously represented the National Enquirer, a tabloid known
for its aggressive reporting on celebrity scandals. "It will be
much more interesting and much more important as a legal issue
to see what the appellate court says."
Hogan had argued that Gawker ignored basic journalistic ethics
by failing to contact him before publishing and violated his
privacy by including several seconds of explicit sexual activity
as part of the video excerpt it posted.
"What's disturbing about Gawker isn't what they do in a vacuum,"
said Kenneth Turkel, one of Hogan's lawyers, during his closing
argument. "It's how proud they are of it."
Gawker countered that Hogan's own penchant for publicly
describing his sex life in detail had made the sex tape fair
"He has consistently chosen to put his own private life out
there, over and over," Michael Sullivan, Gawker's lawyer, told
jurors on Friday.
Hogan, whose real name is Terry Bollea, testified at trial that
he made those comments while in character, not as part of his
real-life persona. Gawker's attorneys argued that Hogan was
drawing a meaningless distinction.
David Marburger, a Cleveland attorney who represents media
clients, compared Hogan to Donald Trump, another
larger-than-life figure who has bragged about his male prowess
as part of his public image.
In Marburger's view, a private video of Trump would be
newsworthy because of references the Republican presidential
hopeful made about his genitals during a presidential debate.
"Regardless of how you judge what's newsworthy, he's asked for
it," Marburger said of Hogan. "He's assumed this risk."
[to top of second column]
Gawker has at least some reason to feel more optimistic about its
chances on appeal. In 2014, the Florida Second District Court threw
out an injunction requiring it to take down the Hogan video that the
trial judge had granted.
VERDICT COULD BE CUT
Clay Calvert, a professor of law and mass communications at the
University of Florida and an expert on the First Amendment of the
U.S. Constitution, said the size of the verdict was not surprising.
He pointed out that broadcaster Erin Andrews recently won a $55
million judgment against a hotel after she was secretly filmed nude
through a peephole.
The jury could still add punitive damages next week after both sides
have a chance to present more evidence.
But Calvert said a verdict that large was almost certain to be pared
back on appeal, if not reversed.
"Juries generally do not like the media," he said after the verdict.
"The appellate court is a little more neutral."
The site appeared prepared for a loss at trial. Even before the
verdict, Gawker said the judge had kept the jury from hearing
crucial prior statements by Clem, the wrestler's former friend, and
suggested it was already thinking about its appeal.
"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," the site's founder, Nick Denton,
said after the verdict. A Gawker representative declined to comment
David Houston, one of Hogan's lawyers, said any testimony from Clem,
who was subpoenaed by Gawker only for the judge to quash it, would
not have made any difference.
(This story was refiled to fix a typo in the first paragraph)
(Editing by Frank McGurty, Bernard Orr)
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