“Four,” Daulerio replied, according to a transcript of the exchange.
“No 4-year-old sex tapes,” the lawyer, Douglas E. Mirell, said. “Okay.”
In a statement later issued to the New York Times, Gawker said that Daulerio was being sarcastic.
“He’d just said in the prior answer that he wouldn’t post a tape of a child and when the question was repeated he obviously made the point in a flip way because his answer was already clear,” it read.
But the taped testimony gave a revealing — and, Hogan’s lawyers hoped, damning — glimpse into Gawker’s few-holds-barred approach to journalism. Nick Denton, the site’s founder, has long rejected the editorial standards that he believes handicap more traditional news outlets: notions like “importance,” “fairness” and “of public concern” that adorn the high-minded mission statements of other publications.
“I have a simple editorial litmus test,” Denton told Politico Media in 2015: “Which is: is it true, and is it interesting?”
On the third day of Hogan’s $100 million invasion of privacy lawsuit against the site, Gawker’s editorial ethics — including Denton’s unconventional test of what’s newsworthy — were the ones on trial.
And if they’re found wanting, the outcome could reshape not just Gawker, but an entire debate about privacy, journalism and free speech in the mess that is the modern Internet.
“If we lost this case, then it would be extremely hard to do the kind of journalism that we do,” Denton told Buzzfeed last June.
Gawker is fighting Hogan’s lawsuit on First Amendment grounds. As journalists, the company says, they’re entitled to publish something private — even if it includes nude photos or video — if the topic is newsworthy. As for the sex tape — which, get ready for this, Hogan claims was leaked by radio personality and his then-best friend Bubba the Love Sponge Clem (yes, that is his legal name), and showed Hogan (whose real name is Terry Bollea) sleeping with Clem’s ex-wife Heather (with Bubba’s consent) in Bubba’s home — it was a legitimate scoop because Hogan is a public figure who talks about his sex life all the time.
“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 last month. “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.”
In his video testimony to the courtroom Wednesday, Daulerio said he had no doubt the video met Gawker’s standards when he first saw it in 2012. He quickly wrote up a graphic play-by-play of the entire 30-minute sex tape (which, as Gawker points out, had previously been published elsewhere) accompanied by a one minute edited version of the video.
“Because the Internet has made it easier for all of us to be shameless voyeurs and deviants, we love to watch famous people have sex,” the first sentence of Daulerio’s post that accompanied the video read, summing up pretty neatly his reasoning for publishing it.
Asked if he thought at all about whether publishing the sex-tape would distress Hogan, Daulerio replied, simply, “No.”
“You didn’t care, really, did you?” the lawyer said, according to the transcript.
The editor’s answer was the same: “No.”
“Had you known that Hulk Hogan would be emotionally distressed by this publication, you would have still published it, correct?”
“Sure, yes,” Daulerio said.
And he had a fairly simple explanation why.
“I found it very amusing,” Daulerio said. “I thought it was newsworthy, and it was something that was worth publishing.”
In 2014, Florida appeals court judge Anthony Black overturned a temporary injunction that would have taken the video down, ruling that the order was an “unconstitutional prior restraint under the First Amendment,” according to the Hollywood Reporter. (Because of the ongoing litigation, Gawker still has not reposted the video.)
But on Wednesday, Hogan’s lawyers did their best to argue that Gawker’s behavior didn’t meet journalistic ethical standards — at least, not according to University of Florida journalism professor Mike Foley.
Foley, who was for three decades a reporter, editor and executive at the St. Petersburg Times — now known as the Tampa Bay Times — testified that the Gawker editors’ choices were beyond the pale. Reporters are obliged to avoid invading a subject’s privacy unless the news demands it, and to avoid going into lurid detail for mere shock value.
“You think how will Mr. and Mrs. St. Petersburg react over breakfast. … You have to step back and ask, ‘Is it necessary?'” he said, according to the Hollywood Reporter.
Freedom of the press is “extremely important,” he continued, but “common sense must drive what we do.”
Denton and his colleagues argue that the Hogan tape is necessary. It showed the wrestler as a person, offered insight into a relationship in which one man allegedly invited his friend to sleep with his estranged wife, and it held Hogan accountable for certain claims he made about how well endowed he is, ahem, down there. (Perhaps Gawker could have just sent someone to measure Hogan’s hands?)
At a staff meeting reported by Capital New York last year, Denton framed the lawsuit as a fight for the First Amendment, saying he hoped “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.”
And in his testimony Wednesday, Denton echoed that sentiment.
“I believe in total freedom and information transparency,” he said, according to the Tampa Bay Times. “I’m an extremist when it comes to that.”
Pressed about whether Gawker’s reporting met journalism’s established ethical standards, Denton waved off the criticism. Gawker is not establishment journalism, he argued, and those guidelines are “irrelevant, even damaging, in the Internet era.”
Gawker is “less sensitive to sensitivity than traditional newspapers,” he added.
Whether he’s able to convince the Florida jury of that could have consequences beyond Gawker (though a verdict in favor of Hogan would certainly be damaging to the site, which can’t really afford to cough up a $100 million bond while it files an appeal).
“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.”
On the other hand, a decision in the other direction could be devastating for the First Amendment, Charles D. Tobin, an entertainment and media lawyer, told the New York Times.
“Newsworthiness should be decided by people who choose to look at Gawker or not look at Gawker,” he said. “Not by a jury.”
The number of people who chose to look, according to Hogan’s lawyers? At least 7 million.