On January 17, a Florida appellate court issued its opinion (which is not yet finalized, as of this writing) in Gawker Media, LLC v. Bollea. Mr. Bollea, the plaintiff, is much better known as the wrestler “Hulk Hogan”. Defendant Gawker Media, LLC (“Gawker”) operates, among other ventures, an online magazine called Gawker. (Full disclosure: Some of my own writing was published on the Gawker site years ago.) In writing about this case, I will focus on its First Amendment aspects, and not on its somewhat less interesting collateral estoppel and injunctions aspects.
The incident that spurred this lawsuit was Gawker’s publication of portions of Mr. Bollea’s 2006 sex tape, which depicted Mr. Bollea and a woman who was not his wife. Gawker also posted its own written report about the extramarital affair, as well as excerpts of the sex tape. In so doing, Gawker likely was attempting to avoid a copyright lawsuit from Mr. Bollea, because (1) Gawker has the copyright on its own written report, even if that report derives from the sex tape; and (2) by using only limited excerpts of the sex tape, Gawker potentially has a basis for a defense based on the “fair use” exception to copyright law, which often turns, in part, on how much has been copied, or otherwise derived, from the original material—here, the full sex tape.
Mr. Bollea claimed that he himself never consented to the tape’s publication. In turn, Gawker said that it had received the tape from an anonymous source, and had paid no compensation to that source.
The Federal Court Proceeding
Mr. Bollea sued Gawker in federal court, asserting a number of tort causes of action: (1) invasion of privacy, (2) publication of private facts, (3) violation of the right of publicity, and (4) infliction of emotional distress. All of these claims are relevant to the facts here, to the extent we know them. Mr. Bollea also sought a preliminary injunction in federal court ensuring that Gawker could not publish any portion of the sex tape. But the federal judge who was assigned to the matter refused to grant that remedy, seeing the preliminary injunction as imposing an unconstitutional prior restraint on free speech, in violation of the First Amendment. (Under the First Amendment, the remedy for speech that causes harm is generally for the aggrieved party to sue for money damages, not to seek to silence his or her adversary.)
The State Court Proceeding
Mr.Bollea then voluntarily dismissed his bid for the federal court preliminary injunction, and moved for a state court injunction instead, while asserting the same four underlying tort claims that are listed above. Again, in state court, Mr. Bollea sought a preliminary injunction.
The Florida state appellate court noted that motions for preliminary injunctions, which preserve the status quo, are typically reviewed under an abuse of discretion standard. But the standard is different where, as here, the First Amendment is involved. Then, the standard is de novo review, the Florida appellate court noted. In this case, though, according to the Florida appellate judge, the Florida state court judge appears to have granted a temporary injunction due to improper considerations, such as: (1) his concern for Mr. Bollea’s privacy, which, according to the Florida appellate opinion, the state court judge seemed to see as insurmountable by any other consideration; and (2) the state judge’s concern about the sex tape’s illegal circulation.
The Florida appellate judge, however, reasoned somewhat differently, noting that Mr. Bollea lives a fairly public life, and noting also that Mr.Bollea himself had exacerbated the public controversy around the very sex tape at issue in this case. On this point, in footnote 5 of the Florida state court appellate opinion, that court wrote as follows: “We are hard-pressed to believe that Mr. Bollea truly desired the affair and Sex Tape to remain private or to be otherwise “swept under the rug”. On this point, the Florida appellate court pointed to Mr. Bollea’s subsequent calls to TMZ Live and The Howard Stern Show regarding the very sex tape at issue. Given this interesting twist in the facts of the case, it is hard not to wonder whether this was all a publicity stunt for Mr. Bollea from the very beginning, and also to wonder whether Gawker’s anonymous informant in this case was, perhaps, Mr. Bollea himself, stirring up yet more publicity. If this was indeed the case, then Mr. Bollea should be ashamed of wasting the time and money of the other litigant, Gawker, and the resources of the court. If it is not the case, then Mr. Bollea may actually be a true victim here, publicity or not. Perhaps we will eventually learn the truth someday, especially if the anonymous source is outed, or, perhaps, outs himself or herself, seeking still yet more publicity.