Why The Hulk Hogan Verdict Isn't A Big Deal

| by Nicholas Roberts
Hulk HoganHulk Hogan

Since a Florida jury awarded $115 million to ex-wrestler Hulk Hogan in his lawsuit against the website Gawker, many are wondering what comes next.  Is Gawker finished?  And could the outcome of the lawsuit have wider-ranging implications?

The first question is a bit tough to answer, as Gawker employees used to speak of "the Hogan case" in terms of suggesting it was a make-or-break moment for the online media company.

"It’s a $100 million lawsuit," Gawker CEO Nick Denton told The New York Times back in June 2015.

"We don’t keep $100 million in the bank, no."

However, Gawker is very likely to appeal the case and may yet prevail in an appellate court.  The company has nearly a thousand pages of documents which were not reviewed by the jury and which it feels were important to the case, The Wrap reports.

Hogan sued Gawker back in 2012, in response to a 2007 sex tape the website released of the wrestler and the wife of his friend, radio shock jock Todd Clem.  According to the jury that heard the case, Hogan suffered "severe emotional distress" over the release of the tape and had his privacy invaded by Gawker.

But Gawker feels the relevant documents could cast doubt on Hogan's claim of 'emotional distress,' as these documents reportedly contain evidence suggesting that Hogan and his sex partner in the video, Heather Cole, were aware they were being recorded, The Wrap reports.  If this is true, it contradicts the testimonies given by both individuals during the jury trial.

New evidence is usually not admissible on appeal, unless it was kept from the jury.  But even if Gawker is not able to introduce new documents which would improve the company's case, it has reason to feel more confident about going before an appellate court than a jury.

One such court, the Florida Second District Court, already dismissed a 2014 injunction requiring Gawker to take down the video from its site, according to Reuters.

Then, as University of Florida professor Clay Calvert has noted, appellate courts are generally more neutral than juries, especially in cases regarding the media.  He argues the $115 million verdict is very likely to be reduced, if not reversed completely.

What happens if Gawker loses its appeal?  According to George Freeman of the Media Law Resource Center, it likely will not have too much impact on what media outlets end up publishing.

"I think the damages are crazy, but I just don’t see this as a terrible blow to the First Amendment," Freeman told The New York Times.

"This was an unusual and extremely private matter. That [the verdict standing] could be bad for the future of sex tapes, but I’m not sure it would be a threat to anything else."

UCLA law school dean Erwin Chemerinsky took a similar angle on the case:

"I think this case establishes a very limited proposition: It is an invasion of privacy to make publicly available a tape of a person having sex without that person’s consent. I don’t think it goes any further than that and I do not see a First Amendment basis for claiming that there is a right to do this."

A unique aspect of this case is the fact that not many media outlets -- other than Gawker -- would consider posting a sex tape of a celebrity onto its website merely because of the tape's "newsworthiness."

The strongest effect that the ruling may have on the publishing industry at large -- if it stands -- is to get publishers to think twice before printing sensitive and private information in the context of larger news stories, as Erik Eckholm of the Times argues.

Everything will hinge on Gawker's appeal case, ultimately.  The company is likely to get a more neutral hearing, at the very least, which may portend the end of the case altogether.  And if Gawker does win in an appellate court, as it has previously, the effects of Hogan's win in court last week will be very limited.

Click here for the opposing view on this topic.

Sources: The New York Times (2), Reuters via Yahoo News, The Wrap / Photo credit: Flickr/Mike Kalasnik

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