“Time for the real main event!” Hogan wrote. “‘I AM’ going to slam another Giant! Hogan vrs. Gawker! Watcha Gonna Do Gawker? Only Justice Brother HH.”
So began jury selection for the first celebrity-sex-tape case to ever go to trial.
The match-up, as they say, is formidable. In one corner of the ring, there is the famous Hogan, a six-time WWE heavyweight champion.
In the other corner is Gawker Media, an online news company known for salacious reports on celebrities. While it announced last November that its focus is shifting to politics, Gawker’s slogan remains “Today’s gossip is tomorrow’s news.”
The prize to be won (or lost)? $100 million, the amount for which Hogan is suing Gawker after it published a clip from a sex tape featuring him and Heather Clem, ex-wife of Hogan’s ex-friend Todd Alan Clem — known to his fans as the radio personality Bubba the Love Sponge Clem.
Hogan claims that the published tape was a violation of his privacy. Gawker, on the other hand, is using the First Amendment to contend that the material was fair game: Hogan had spoken publicly about his sex life before, on Howard Stern’s radio show and other platforms.
“Gawker is allowed to join that very public conversation without getting sued for tens of millions of dollars simply because Hogan didn’t like the way Gawker did so,” the company’s attorney, Seth Berlin, told CNNMoney this week. “Public figures and celebrities don’t get to use the court system to punish speech about them that they don’t like. That’s just not the country we live in.”
The case has been called a “moment of truth” for Gawker.
“Gawker has been sued plenty of times before; indeed, at any given moment, it’s fighting at least a few lawsuits,” reported the New York Times. “But every other case was either dismissed or settled,” the Times noted, adding that “people at Gawker tend to talk about ‘the Hogan case’ in apocalyptic terms, suggesting that it could very well bring down” the entire empire, owned by Gawker founder Nick Denton, which includes Deadspin, Jezebel and Gizmodo, among other publications.
“If we lost this case, then it would be extremely hard to do the kind of journalism that we do,” Denton told BuzzFeed News last year, shortly before BuzzFeed published a “detailed narrative of what transpired before Gawker posted the sex video and its immediate aftermath.”
Stephen MacNamara, an attorney and professor at Florida State University’s College of Communication and Information, told CVN he believes “Hogan’s legal team has an uphill battle. The fact that the tape was recorded at the Clems’ home undercuts the wrestler’s expectation of privacy, while Gawker’s publication of a short clip from the tape bolsters the company’s argument that it used the video because it was newsworthy.
“If he won, I’d be very surprised,” MacNamara told CVN.
If Hogan did win, and if the victory survives appeals, MacNamara told CVN it “‘would change the face of a whole lot of things’” regarding privacy claims.
The clip on Gawker was 1 minute 41 seconds long and has since been removed from a post called “Even for a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed is Not Safe For Work but Watch it Anyway.”
The video was accompanied by a detailing of the full 30-minute tape, filmed in 2006 inside Clem’s house while Heather Clem was still married to Bubba Clem. It had been delivered to Gawker by an anonymous source seeking no payment, according to the publication. As Gawker’s A.J. Daulerio noted in the 2012 post, the footage was rather mundane, exhibiting little of the bravado that one would expect given Hogan’s antics on-screen and in the ring.
“Hollywood” Hogan, after all, is larger than life. He always wears a colorful bandanna and has torn his shirt off his chiseled body countless times, to the delight of uproarious crowds. His signature finishing move involved slamming a leg down onto his opponent’s throat.
But in bed, Hogan was not unlike the rest of us.
“We watch this footage because it’s something we’re not supposed to see (sometimes) but we come away satisfied that when famous people have sex it’s closer to the sex we as civilians have from time to time,” Daulerio wrote. “The normalcy of it is exciting, though.”
One commenter said they were “pleasantly (?) surprised to see he appears to have a sort of respectful rapport with the woman.”
Hogan told Howard Stern that Bubba had given him permission to sleep with Clem, but Hogan claims he did not know the encounter would be taped using Bubba’s home surveillance system.
Hogan blamed Bubba for the leak, telling the New York Daily News, “Just for the record, Bubba and I are NOT friends and never will be friends, we are NOT friends.”
The wrestler had been the best man at the radio host’s wedding, and was a godfather to Bubba’s son.
Ultimately, the tape proved to be damning for a non-sexual reason.
According to a joint investigation by RadarOnline.com and the National Enquirer, the pillow talk contained in the full-length clip revealed vulgar and racist language directed towards African Americans.
Hogan’s rant centered on his daughter, Brooke Hogan, who was dating a black man. At one point, he reportedly said that if she was going to have sex with him, he’d “rather have her marry an 8-foot-tall n—– worth a hundred million dollars! Like a basketball player!”
“I guess we’re all a little racist,” he concluded.
These declarations ended up costing Hogan his career. Last July, after the comments came to light, WWE terminated the wrestler’s contract and scrubbed him from its website.
“WWE is committed to embracing and celebrating individuals from all backgrounds as demonstrated by the diversity of our employees, performers and fans worldwide,” the entertainment company said in a statement.
That same day, Hogan apologized via People magazine:
Eight years ago I used offensive language during a conversation. It was unacceptable for me to have used that offensive language; there is no excuse for it; and I apologize for having done it. This is not who I am.
Speaking to Entertainment Tonight, Brooke Hogan defended her father, saying that he was “nice to everybody” and “doesn’t talk like that.”
Her father was “best friends” with Mr. T and Dennis Rodman, Hogan said before remarking that racism is rampant because she has been told “white people smell like bologna.”
Hogan’s attorney, Charles Harder, has likened his client’s case to that of Erin Andrews, a former ESPN sportscaster who testified this week in a lawsuit against the hotel that she says enabled a stalker to secretly film her undressing.
The videos were widely shared on the Internet, adding irreparable insult to the already-difficult job of being a female sportscaster.
“Can you imagine if the guy who filmed Erin Andrews cited the First Amendment?” Harder told CNNMoney. “But for some reason, Hulk Hogan gets treated a different way.”
The difference may be that Hogan has gone on the record about his sex life in the past. In 2006, he discussed sexual encounters with his wife on Bubba’s show, and after the tape surfaced in 2012, he joked about it on TMZ Live.
After Gawker’s posting, however, Hogan claimed the video began to take a heavy toll. According to court records published by BuzzFeed, Hogan said the video caused him “substantial emotional distress, anxiety and worry,” as all interviews centered on his tryst, and he was approached by people on the street who admitted to having watched it.
As Buzzfeed’s Mary Ann Georgantopoulos wrote, Stern asked Hogan on his show in 2012 whether it was “at least phenomenal sex,” to which Hogan responded: “Nothing was worth this.”
This post has been updated.
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