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The Hulk Hogan trial that could redefine freedom of expression on the internet, explained

 TV personality Terry Bollea, a.k.a. Hulk Hogan, leaves the press conference today after discuss legal action being brought on his behalf.
TV personality Terry Bollea, a.k.a. Hulk Hogan, leaves the press conference today after discuss legal action being brought on his behalf.
Gerardo Mora/Getty Images

A Florida jury granted famous wrestler Hulk Hogan $115 million in compensatory damages to be paid by Gawker, the news site that Hogan has accused of violating his privacy by publishing a video of him engaged in a sex act. An adverse verdict is what Gawker was expecting, and the company plans to appeal, but even if Gawker prevails the need to post a bond equivalent to the full total of damages ordered will be a major financial burden.

The details are about as salacious as they come: pornographic footage of Hulk Hogan having sex with a friend’s wife, taken without his knowledge and later posted on Gawker based on an anonymous tip.

The iconic wrestler (whose real name is Terry Bollea) sued the site claiming privacy violations and emotional damage after the video was posted in 2012.

Gawker, on the other hand, claims it had a right to post the video, which was a matter of "public concern."

Both sides have declared the trial's outcome could have outsize consequences: Hogan is claiming a loss would mean weakened privacy for all Americans; Gawker says that if Hogan prevails, the nation’s press freedoms are at risk.

Legal experts tend to agree that no matter how the case is decided, it will help clarify the largely undefined line between privacy and freedom of expression on the internet.

Hogan argues that the video’s publication was a unique and humiliating violation of privacy

The grainy surveillance footage in question was taken in 2006 of Hogan and Heather Clem having sex in Clem’s home she shared with her then-husband, radio personality Bubba the Love Sponge Clem (born Todd Alan Clem, though he legally changed his name).

Hogan has claimed that the video was taken without his knowledge or consent, a fact that Bubba Clem disputed to Howard Stern.

Clem says the video was stolen from his office — though no one has accounted for how the video was then distributed.

Gawker then received the full 30-minute video, burned onto a DVD and mailed to its office in Manhattan. Rather than posting the video in its entirety, Gawker cut a "highlight reel" featuring about 101 seconds of footage, of which about 9 seconds contain actual sex acts.

Regardless of how it surfaced, Hogan’s lawyers argued to the six-person jury that Gawker’s publication of the video was a crass tool to pull in ad dollars and clicks. It served no purpose for the public good, they say, and inflicted significant emotional and privacy damage to the now-retired wrestler.

"There’s a world of difference between discussing something and showing a pornographic video, something that goes online and can be seen forever," David Houston, Hogan’s personal lawyer, told the New York Times. Hogan’s legal team is not challenging the text of Gawker’s post, which described the full 30-minute video, blow by blow, in lurid and unflattering detail.

Gawker argues in return that as a celebrity who frequently raises details of his own sex life — including the video’s existence — Hogan has created sufficient public interest around the topic to merit the video’s publication.

Houston told the Times that Hogan has been known to say outrageous things in appearances as a wrestling personality. "But that does not mean that Terry Bollea the person has forsaken all rights of privacy," he said.

Hogan asked for the huge sum in part to deter other publications from publishing similarly slanderous private details about other celebrities, his lawyer said. But First Amendment experts say even if Hogan wins the case, the monetary award is incredibly high.

Gawker thinks posting Hogan's sex tape served a valid purpose

In addition to arguing that Hogan exempts himself from some privacy expectations by virtue of the fact that he’s a celebrity, Gawker makes the case that posting the video of him and Heather Clem ultimately served the public’s interest.

Gawker posted the video seven months after TMZ first reported its existence and five months since the gossip website the Dirty posted screen shots — all after Hogan had repeatedly denied sleeping with Heather Clem. The site’s lawyers will point to these posts as evidence that the public had an interest in seeing the video.

In a June all-staff meeting reported by Capital New York, Gawker founder Nick Denton said he hopes "we can make it clear that we’re fighting for the truth to hold elites accountable … whether that light exposes a Florida celebrity having a swingers party invited by the host to have sex with his wife — whether it’s that or whether it’s the fact that the system is rigged and people can’t make it."

Gawker argues that the ruling against it imperils news organizations across the country from publishing unflattering details about individuals who hold power. If the verdict stands, in Gawker’s view, it will dissuade writers from looking into and discussing uncomfortable subjects.

It was a long-shot argument for Gawker to make before a jury, composed of Florida residents from Hogan’s hometown who will likely be sympathetic to his cause. Lawyers for the news site plan to appeal the case. But in the meantime, Gawker will likely be forced to post a large bond, potentially emptying its coffers and putting the entire company in danger.

The jury’s decision could have First Amendment consequences

Gawker is right on one point: A ruling on whether it had the right to post Hulk Hogan’s sex tape will likely have more far-reaching consequences for the media writ large.

The tension between privacy rights and free expression remains murky, with only a handful of court decisions coming before this one. But new cases testing the limits of free expression are arising more often than ever on the internet, where personal details can spread further and faster than ever before.

Mary-Rose Papandrea, a law professor at the University of North Carolina and a former lawyer for the National Enquirer, said this case comes down to whether the sex tape was "newsworthy." Of course, newsworthiness is a vague standard that well may have different limits when applied to celebrities as opposed to private citizens.

Historically, the law considers images containing nudity or sexual acts as "private" information. But in speaking repeatedly and in graphic detail about specific sexual encounters, Papandrea said Hogan may have well made his sex life a matter of public concern.

If appeals courts ultimately rule in favor of Gawker’s claim to public concern stand, it might well lead to a media free-for-all in which organizations feel welcome to publish increasingly damaging private information about the lives of public individuals.

"Right now, there’s an 'anything goes' mentality when it comes to publishing information about celebrities. If Gawker loses, we might begin to see some rethinking of that mentality," Eric Goldman, co-director of Santa Clara University’s High Tech Law Institute, told Fusion. "If Gawker wins, I think it will further embolden online publishers that anything related to celebrities is fair game."

But the ruling against Gawker would required the jury to contradict precedent. In the past, when cases involving offensive or private information have reached the Supreme Court, justices have erred on the side of free expression. In 1988, for example, the Court ruled in Hustler Magazine v. Falwell that Hustler had the right to publish a damning parody of the prominent fundamentalist minister Jerry Falwell, and that he could not collect damages for emotional harm.

In his majority opinion, Chief Justice William Rehnquist wrote that banning content on the basis that it was deemed outrageous "would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression, and cannot, consistently with the First Amendment, form a basis for the award of damages for conduct."

In line with that precedent and others, a federal court threw out a similar suit Hogan filed against Gawker in December 2012.

"The courts have historically been reluctant to second-guess editorial decisions," Papandrea said. But with news traveling further and faster on the internet than ever before, "that could be changing."

And though the current case is being litigated in state court, it is one of a small handful of such free expression lawsuits to go to trial, and the outcome will likely serve as a guide to judges and lawyers across the country.

The trial has gained such outsize significance because it is perhaps the first legal test of its kind in which deeply private information has circulated around the internet. Courts in the past have shown deference to editorial decisions, taking news organizations’ claims that certain facts or photographs are essential to storytelling. But with the understanding that the internet can be a uniquely destructive space, judges are beginning to second-guess that free-for-all standard.

The video’s publication also has implications for "revenge porn" laws

The Hogan video raises questions beyond the realm of press freedom. Whether or not it’s true, Hogan has claimed his private actions were filmed without his knowledge or consent. That would put the tape in the category of "involuntary porn" or perhaps even "revenge porn."

Revenge porn is a genre of internet harassment wherein perpetrators post pornographic photos or videos of a victim, linked to his or her name, without consent. Typically, the perpetrator is a former sex partner who uses the threat of revenge porn as a form of blackmail, though the reasons for posting such content can vary.

Revenge porn has become a prevalent enough problem that 26 states to date— including Florida, where Hogan's case is being argued — have passed laws limiting it. The laws seek to ban the crime without encroaching any further on individuals’ First Amendment rights.

Still, the issue has not clearly been litigated, and the decision on the Hulk Hogan tape could have an impact on other victims seeking to protect themselves from revenge porn through the courts.

If the courts decide in Gawker’s favor, it’s possible that that other pornographic content, posted without a victim’s consent, could bolster other revenge porn cases to receive First Amendment protection as well.

"If Hulk Hogan is newsworthy, then a case of an unconscious [woman] being raped is too and some media might publish that saying we should be seeing it," University of Maryland law professor Danielle Citron told Fusion. "Everything is newsworthy once people are interested."

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