By Steven J.J. Weisman
BOSTON — At first blush, although there does not appear to be much blushing going on in the videotape of Hulk Hogan having sex with the then-wife of his former friend Bubba the Love Sponge recorded in 2012, Hulk Hogan’s $100 million lawsuit against online news website Gawker would not appear to be a highly significant test of the limits of the First Amendment. But indeed, this case could well set a major precedent as to how not just Gawker, but talk radio hosts and others cover the celebrity news.
Hogan, under his real name Terry Bollea, is suing Gawker for publishing online portions of a video tape apparently done by Bubba the Love Sponge, whose former name was Todd Clem, but actually legally changed his name to Bubba the Love Sponge which should, in and of itself, probably tell us something. Although Bubba and his then wife, Heather Clem, from whom he is now divorced, were aware that the sexual activity between Heather Clem and Bollea was being filmed, Bollea was not aware and the filming of him was done illegally.
But does that make it improper or illegal for Gawker, which received the video anonymously and without making payment, to publish the video?
In the Supreme Court case of Bartnicki v. Vopper in 2001, the Supreme Court answered that question in a case dealing with the radio broadcast of an audio tape of an illegally intercepted cell phone conversation in which a high school teachers’ union representative discussed possible violent actions against members of the local school board. Vopper, the broadcaster in this case, like Gawker did not illegally record the item in question, but merely broadcast it.
In that case, the Court ruled “Privacy of communication is an important interest. However, in this suit, privacy concerns give way when balanced against the interest in publishing matters of public importance. One of the costs associated with participation in public affairs is an attendant loss of privacy. The profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open supported this Court’s holding in New York Times Co. v. Sullivan that neither factual error nor defamatory content, nor a combination of the two, sufficed to remove the First Amendment shield from criticism of official conduct. Parallel reasoning requires the conclusion that a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”
So the key question appears to be whether the sex life of Hulk Hogan is a matter of public concern.
Gawker says that it is a matter of public concern because Hogan is a public figure who has discussed his sex life in books, interviews (particularly on the Howard Stern show) and in his reality television show.
In the 1998 case of Michaels v. Internet Entertainment Group, Inc., the Federal District Court for Central California ruled that a sex tape of Pamela Anderson and rocker Bret Michaels was newsworthy, indicating that the matter could be discussed and written about, however, quite significantly the Court ruled that the tape itself could not be shown saying, “even people who voluntarily enter the public sphere retain a privacy interest in the most intimate details of their lives.”
Ultimately, it will be a jury that makes the decision as to both whether Gawker’s edited publishing of approximately one minute and forty seconds of the 30-minute tape given to them is protected or not by the First Amendment and, if not, the amount of money that should be awarded to Bollea.
As for talk hosts and others in the media, it is reasonably clear that the lives of celebrities have become valid topics for discussion, but when it comes to invasive videos and photographs, a right to privacy may trump the First Amendment rights of the media.
Steven J.J. Weisman is a practicing attorney, legal editor for TALKERS magazine, a professor of Media Law at Bentley University in Waltham, Massachusetts and publisher of the website www.scamicide.com. He can be e-mailed at: firstname.lastname@example.org. Steven J.J. Weisman is available as a guest to discuss legal matters and the subjects of identity theft and scams.