Gawker's lawyer says the Hulk Hogan sex tape isn't 'revenge porn'

The Hulk Hogan v. Gawker trial was supposed to kick off Monday, but is now postponed, according to the the Tampa Tribune, which reported that Hulk’s lawyers filed a motion too close to the trial date. There isn’t a new trial date set yet, so it’s unclear when a Florida jury will get the chance to decide whether the gossip blog violated the Hulkster’s privacy by posting video of him having sex. Three years ago, Gawker received a DVD anonymously in the mail of Hogan’s romp with his friend’s wife, and excerpted a clip from it. The judge had expressed concern this week that the much-discussed trial “not be a carnival,” ordering, for example, that the Hulkster only be called by his legal name, Terry Gene Bollea, in the courtroom, and that when it came to the Hulk costume, he limit himself to “one plain bandanna.”

Hogan has sued for $100 million over Gawker’s 2012 post, “Even for a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed is Not Safe For Work but Watch it Anyway.” When I wrote about the case last month, I noted that the tape —which was allegedly made without Hulk’s knowledge and released without his consent —  is what we would now call “revenge porn” or “involuntary porn,” a kind of content that is much more reviled today than it was a mere three years ago. Legal experts said the outcome of the case could set a larger precedent for the media’s right to publish other “nonconsensual porn.” But Gawker’s general counsel, Heather Dietrick, says that Hulk Hogan’s sex tape isn’t “revenge porn.”

“I don’t think it’s revenge porn,” said Dietrick in a phone interview last week. “No one was trying to get revenge when this video was released.”

This is part of the reason prosecutors and advocates for victims of these exposures hate calling intimate material that’s released without the consent of those involved “revenge porn,” because the motives of those releasing it isn’t always “revenge.” Sometimes it’s for titillation, or profit, or just for the lulz. The still unknown people who released the iCloud photos of Jennifer Lawrence and other celebs last summer in “The Fappening” likely weren’t motivated by revenge either.

Dietrick joined Gawker from Hearst two years ago so wasn’t there when the Hulk sex tape was posted, but says she would have okayed it. “I don’t regret our having published it, ” she said. “We stand behind the story we wrote.”

Gawker CEO Nick Denton has said that the case, which takes place in a Florida courtroom where Tampa-based Hogan has home field advantage, threatens the existence of the publication given the huge sum Hogan is asking for. But Dietrick seemed less concerned, pointing out that if Gawker does lose this upcoming trial, they plan to appeal to a court that has already said it thinks the video is protected by the First Amendment.

“There are a lot of past cases where courts say the publication of something can be graphic or uncomfortable, like a sexually explicit video or photos of a medical issue, but that it’s related to a newsworthy subject,” said Dietrick. In court filings, for example, Gawker cites a 10th Circuit case from 2007 in which a court dismissed a woman’s invasion of privacy claims against an Oklahoma TV station after it aired a video of her being raped by her estranged husband while she was unconscious. The woman had sued over the same thing Hogan is suing for, “publication of private facts.”

“That’s how free expression works in this country,” said Dietrick. “A subject of a story doesn’t get to wield how the story is told, or what evidence is used. If it’s been a topic of public interest, journalists have to decide what to bring up.”

Legal experts, though, have speculated that it will set a terrible precedent for the privacy of intimate images and sex tapes if Gawker wins.

Legal scholar Eugene Volokh said Hogan’s case was a strong one. “While Gawker argues that it’s newsworthy because of Hogan’s frequent commentary about his sex life, it’s hard to see how the actual video is newsworthy,” said Volokh, who teaches free speech law at UCLA.

But Volokh said it’s very hard to predict how courts will rule in journalism cases. “What is newsworthy is such a contested matter. Courts have gotten it wrong,” he said. In the Gawker case, many court-watchers are concerned a Hogan win conflicts with the First Amendment and will abridge journalists’ rights to report on important topics.

That has happened before in bad rulings, says Volokh. For example, California had the equivalent of the “right to be forgotten” for 30 years after a court ruled in 1971 that Reader’s Digest had violated a man’s privacy by publishing an article about his hijacking trucks a decade earlier. “The court basically said we should forgive and forget and keep the media from haunting people with their past,” said Volokh. “It highlights the danger of having judges and juries as the determiners of what’s newsworthy. It was a classic case of a court usurping what’s important to newspapers, readers and the community.”

(It wasn’t overruled until 2004 when the Discovery Channel won after being sued by a man who was upset about a documentary that revisited his role in a murder decades earlier. The court said matters of public record could always be reported.)

Volokh thinks Hogan will win, but he hopes for a different outcome ultimately. If Gawker loses and appeals the case, Volokh would like to see the federal appeals court rule unconstitutional the tort that Hogan is suing under. “‘Publication of private facts’ is too broad and vague,” said Volokh. “I think it should be narrowed to the kinds of pictures at issue in this case.”

In other words, he thinks it should be replaced with a federal law banning revenge porn. “The law would need to be limited to disclosing naked pictures taken in a private place, or the release of video of people having sex without the consent of all the people involved— unless there’s financial or political relevance,” said Volokh. “I think revenge porn laws will be upheld if they’re narrowly crafted.”

Gawker lawyer Heather Dietrick, said Gawker hadn’t considered arguing that the tort was unconstitutional. She, of course, disagrees though that the video wasn’t necessary to tell the story. “It’s up to the journalists to have discretion and how best to tell the story,” she said. “There was lots of talk about whether this Hogan tape existed. There was speculation and misinformation. Hogan said he didn’t know who was in the tape. It wasn’t clear from the screenshots [from the video previously posted by The Dirty]. It’s not the Pentagon Papers but people were talking about the tape again and again. We wouldn’t be doing our job if there was a large story out there and we had clarifying material and didn’t provide it.”

And there’s more material coming out. Last week, Gawker won a “Freedom of Information Act” lawsuit against the FBI to get access to the agency’s files around an investigation into the Hogan sex tape, which revealed that there were three different sex tapes made. “The FBI’s tapes and documents should help answer a number of questions relevant to Hulk Hogan’s lawsuit — whether there are still more sex tapes out there, who was taping and why and who all knew about it,” said Gawker in a statement. “We always want to get to the bottom of every story, and now we’re a step closer to knowing the full truth here.”

Gawker thinks it will help its case if it can prove Hogan knew the tapes were being made.

When I pushed Dietrick on intimate images and sex tapes being particularly sensitive and something journalists shouldn’t post, she said, “It’s a dangerous thing to say we don’t touch this topic at all.”

I pointed out that Gawker wrote about “The Fappening” without posting the photos of celebrities whose iCloud accounts were hacked. (There was one exception as noted by Slate: Deadspin posted stolen, intimate photos of athlete Justin Verlander and model Kate Upton, but later took them down.)

Dietrick said Gawker writers didn’t consult her on whether or not they should publish naked photos of the Fappening victims, but if they had, she “would have taken a pass on them because they weren’t advancing the story.”

After the leak of those intimate photos (and videos) of celebrities, a then-Gawker writer (who is now at Fusion) wrote on Jezebel about how horrible it was that the hackers leaked the photos and that people on the Internet were passing them around:

Let’s not get used to this. No person, no matter how famous should have to go through something like this. This shouldn’t be an expectation of celebrity.

Unless the FBI files about the Hulk Hogan sex tape show that he knew they were being made and wanted them distributed, Gawker will be arguing the opposite of that whenever the case does go to trial.

*This story was updated to reflect the trial’s postponement.