Updated at the bottom to add some thoughts, based on an article written by Hogan’s lawyer after the verdict.
In 1787, “Cincinnatus,” a common nom de plume of anti-federalists, wrote to James Wilson:
It is an easy step from restraining the press to making it place the worst actions of government in so favorable a light, that we may groan under tyranny and oppression without knowing from whence it comes. But you comfort us, by saying,–“there is no reason to suspect so popular a privilege will be neglected.” The wolf, in the fable, said as much to the sheep, when he was persuading them to trust him as their protector, and to dismiss their guardian dogs.
The anti-federalists prevailed on this point, and the First Amendment was born.
Over the past fifty years, free speech rights have blossomed, partly through austere cases involving civil rights, but mostly as the result of terrible people doing obnoxious things. In Brandenberg v. Ohio (1968), a bunch of losers in the Ku Klux Klan were convicted of a criminal conspiracy by advocating for “revengeance,” then had their conviction overturned by the Supreme Court. In National Socialist Party of America v. Village of Skokie (1977), a bunch of Nazis sad about how WWII ended were prevented from marching in a heavily Jewish community, but the Supreme Court gave them their right to march and remind us all why we bombed their predecessors to smithereens. In Synder v. Phelps (2011), the odious trolls at the Westboro Baptist Church protested gay rights at the funeral for a solider killed in the line of duty, were sued by the soldier’s parents and hit with a verdict for intentional infliction of emotional distress, but then had the verdict overturned by the Supreme Court.
All of which brings us to Terry Gene Bollea v. Heather Clem, et al, Case No. 12-012447-CI, in the Circuit Court of Pinellas County, Florida. The docket is available here. It’s a little bit better known as Hulk Hogan v. Gawker. It involves a sex tape. You know that, know the facts, and have probably read a hundred different opinions on it.
This post is different: this will be entirely about the actual law involved.
Most of this law is drawn from the actual briefs filed by Hulk Hogan and Gawker, specifically:
- Gawker’s Motion for Judgment Notwithstanding The Verdict
- Gawker’s Motion For A New Trial Or, In The Alternative, For Remittitur
- Hulk Hogan’s Combined Opposition To Motion For New Trial Or, In The Alternative, For Remittitur And To Motion For Judgment Notwithstanding The Verdict
If you want to understand the facts that Hulk Hogan tried to prove at trial, see his Statement of Facts Established At Trial. Gawker of course denies many of these facts. The jury obviously accepted some or all of these alleged facts.
We’ve got five main questions to answer:
- How Is The First Amendment Involved?
- What’s Up With The Ridiculous Size Of The Verdict?
- What About The Punitive Damages?
- What About Peter Thiel Bankrolling Hogan’s Case?
- What’s The Bigger Picture Here?
How Is The First Amendment Involved?
Gawker argues that, where a publication relates to “a matter of public concern” and is truthful, the First Amendment prohibits any lawsuits for damages arising from it:
As a threshold matter, Defendants are entitled to an entry of judgment in their favor as to all claims because, as a matter of law, the publication, including the challenged video excerpts, related to a matter of public concern. Whether a specific publication related to a matter of public concern presents a legal question, properly decided by a court, including at the post-trial motion stage. See, e.g., Cape Publ’ns, Inc. v. Hitchner, 549 So. 2d 1374, 1377-78 (Fla. 1989) (deciding public concern issue at summary judgment stage); Cape Publ’ns, Inc. v. Bridges, 423 So. 2d 426, 427-28 (Fla. 5th DCA 1982) (same at post-trial motion stage); see also Snyder, 562 U.S. at 458-60 (setting aside jury verdict for intentional infliction of emotional distress and intrusion upon seclusion based on conclusion that speech giving rise to claims related to matter of public concern); Cinel v. Connick, 15 F.3d 1338, 1345-46 (5th Cir. 1994) (affirming dismissal of case arising from broadcast of sexually oriented video because “[whether a matter is of public concern is a question of law for the court”).
Hogan doesn’t disagree with the idea that “a matter of public concern” is protected, and instead argues that it is for a jury to initially decide whether a given publication is on “a matter of public concern:”
Gawker Defendants erroneously contend that public concern is a pure question of law. In this case, public concern was a question of fact that was properly submitted to the jury, which this Court should now independently review under the constitutional facts doctrine. See e.g., Judge v. Saltz Plastic Surgery, P.C., 367 P.3d 1006, 1013 (Utah 2016) (if court concludes that reasonable minds could differ concerning the newsworthiness of the information, then the issue is a jury question); Times-Mirror Co. v. Superior Court, 244 Cal. Rptr. 556, 564 (Cal. Ct. App. 1988) (newsworthiness “is a question to be answered by the jury”); Virgil v. Sports Illustrated, 424 F.Supp. 1286, 1290 (S. D. Cal. 1976); Capra v. Thoroughbred Racing Ass’n of North America, Inc., 787 F.2d 463, 464 (9th Cir. 1986); Kapellas v. Kofman, 459 P.2d 912, 922 (Cal. 1969). … Snyder v. Phelps, 562 U.S. 443, 453-54 (2011), cited by Gawker Defendants, illustrates the proper procedure, which was followed in this case. In Snyder, there was first a jury verdict for the plaintiffs, which was followed by an independent judicial review of the public concern issue.
Hogan was thus required to prove the sex tape was not a matter of public concern and the jury agreed, as they had to do before any damages could be awarded. That presents a hurdle for Gawker when appealing, i.e., getting a later court to overturn the jury’s factual finding. The curious part here is how Florida’s intermediate appellate court has already ruled that the sex tape was on a “matter of public concern:”
Here, the written report and video excerpts are linked to a matter of public concern — Mr. Bollea’s extramarital affair and the video evidence of such — as there was ongoing public discussion about the affair and the Sex Tape, including by Mr. Bollea himself. Therefore, Mr. Bollea failed to meet the heavy burden to overcome the presumption that the temporary injunction is invalid as an unconstitutional prior restraint under the First Amendment. As such, it was within Gawker Media’s editorial discretion to publish the written report and video excerpts.
Gawker Media, LLC v. Bollea, 129 So. 3d 1196, 1202 (FL, 2nd Dist. 2014). That ruling was in the context of Hogan’s attempt, at the beginning of the lawsuit, to get an injunction against Gawker that would force them to take down the post and video, so the ruling doesn’t necessarily obligate a later court to overrule a jury’s finding of the same. Nonetheless, it presents a big hurdle for Hogan on appeal.
The “matter of public concern” issue was Gawker’s first issue listed in its post-trial motions, and it will be the leading issue on appeal. The appeals will likely spend a lot of time arguing about Toffoloni v. LFP Publ’g Grp., LLC, 572 F.3d 1201 (11th Cir.2009). In Toffoloni, after the professional wrestler Christopher Benoit murdered his wife and son, a magazine published twenty-year-old nude images of his wife, who was also a model and also a professional wrestler. As the Florida Court of Appeals described Toffoloni, it held “that the publication of nude photographs of a female professional wrestler taken twenty years prior was not protected speech because their publication was not related to the content of the reporting, namely, her murder.”
That presents problems for both sides. For Gawker, it presents the problem of generally holding that nude / sexual / etc images even of celebrities are not a matter of public concern. For Hogan, it presents the problem of the images not being related to the content of the reporting, whereas, in this case, the sex tape was (arguably) related to Gawker reporting on Hogan having sex with his best friend’s wife.
That last part is probably the single most important issue in the case: was the actual video “related to” Gawker’s report on the affair? We could debate this question endlessly; the jury obviously thought not, but the question is if the law should say it was related regardless of what a jury thought.
Before you answer that yourself, add two other factors. First, Hogan was required to prove the above by “clear and convincing evidence,” a higher standard than the typical “preponderance” standard, and it’s the court’s job to make sure the evidence presented was enough for a jury to find, by clear and convincing evidence, that the sex tape was not related to a matter of public concern.
Second, consider this passage from the federal court order that unsealed Bill Cosby’s deposition at the request of the Associated Press:
[T]he AP’s interest in obtaining Defendant’s depositions is legitimate. The purpose for which the deposition is sought (and surely will be distributed to the world) is not merely commercial gain16 or prurient interest in exposing the details of Defendant’s personal life. Nor is it simply a matter collateral to the issues in the lawsuit. Rather, the stark contrast between Bill Cosby, the public moralist and Bill Cosby, the subject of serious allegations concerning improper (and perhaps criminal) conduct, is a matter as to which the AP–and by extension the public–has a significant interest.
Finally, the nature of the allegations–sex, drugs, seduction, etc.–do not cloak this case, including the depositions of one of the parties, with an automatic or per se seal of silence. Were it otherwise, the distinction would create a category of cases which, because of the inflammatory nature of their subject matter, would always lie outside public scrutiny. This point is particularly relevant here where the allegations of improper conduct are not collateral to, or background information in, the case but rather form its very essence.
Of course, the underlying legal issue there was different, but the principle is similar. At least according to that federal court, when a public figure has put their own morality or sexuality or other related issues into the public, they lose some degree of privacy relating to it.
What’s Up With The Ridiculous Size Of The Verdict?
$140.1 million is a ridiculous amount of money. $60 million of it was for emotional distress. Among other arguments, Gawker sought “remittitur,” which is when a court lowers the amount of damages awarded by a jury. Remittitur is disfavored in the law, because it is, in effect, the court telling the jury that it was wrong – which puts it squarely in conflict with centuries of law on jury verdicts, including the Seventh Amendment.
That said, it’s hard to disagree with Gawker’s argument on this point, where they recount various cases in which Florida courts reduced “emotional distress” verdicts for far worse situations:
Here, Plaintiff’s emotional distress is not remotely comparable to the distress experienced by plaintiffs who suffered disfigurement, debilitating medical conditions, the death of a loved one, or witnessing their baby’s skull being crushed. Yet, Plaintiff was awarded 24 times the emotional distress damages awarded to the parents in Kammer, who witnessed their child killed by a vacuum extractor. He was awarded 15 times the amount judged to be “so excessive” as to “have been a product of passion and emotion” in Glabman, a case involving the death of a child as a result of a medical misdiagnosis. 954 So. 2d at 63. He was awarded 7.5 times the amounts deemed excessive in Aillis, a case in which the plaintiff suffered permanent disfigurement, and Webb, a wrongful death case. Against that background, the jury’s award of $60 million to compensate Plaintiff for his emotional distress was clearly so excessive as to have been the product of passion and prejudice.
Hogan’s argument in response is not that compelling:
As Gawker Defendants admit, Aills was a medical malpractice case. The emotional harm suffered by the Aills plaintiff was not comparable to what Mr. Bollea suffered here. The other cases cited by Gawker Defendants are likewise not analogous. Glabman v. De La Cruz, 954 So. 2d 60 (Fla. 3d DCA 2007) (medical malpractice); Kammer v. Hurley, 765 So. 2d 975 (Fla. 4th DCA 2000) (same); R.J. Reynolds Tobacco Co. v. Webb, 93 So.3d 331, 337-38 (Fla. 1st DCA 2012) (products liability action against tobacco company); Philip Morris USA, Inc. v. Putney, 117 So.3d 798, 803 (Fla. 4th DCA 2013) (same). Gawker Defendants have not pointed to a truly comparable case. There are none. Over seven million people watched Mr. Bollea naked and engaged in sexual activity without his consent, on an illegally recorded and distributed video. The jury’s emotional distress verdict for this incredible, unique harm was not excessive.
True, Hogan’s injury was “unique,” in that there aren’t any other cases that are exactly comparable, but Hogan’s emotional injury is certainly not uniquely greater than, say, watching your newborn child have their skull crushed by a vacuum extractor.
The trial judge recently denied Gawker’s motion for a new trial, including denying their request for remittitur. In my opinion, this makes it more likely an appellate court will feel compelled to lower the verdict. It’s one thing when a trial judge takes a huge verdict and lowers it to a level closer to the trial judge’s understanding of the evidence. It’s another thing where the trial court doesn’t touch the verdict at all.
Then there’s $55 million in economic damages, a number arrived at by (a) accepting the testimony of Hogan’s expert that the video was played 7 million times; (b) multiplying that by $4.95, which was said to be the minimum amount that would have to be paid for online access to celebrity sex tapes; (c) adding $15 million, the alleged increase in value to gawker.com from the sex tape; and (d) adding in $4.7 million from somewhere.
Gawker has a pretty good argument that the last $4.7 million is suspect, and as far as I can tell Hogan doesn’t have a clear response.
The arguments about the rest of the $50 million get deep into the weeds of economic damages, like the proof of how much an unlicensed broadcast is worth — do you give the defendant the benefit of the doubt, by only awarding what plaintiff proved people would have actually paid to see it, or do you give the plaintiff the fair value as if everyone who saw it paid it? — but the key issue, in my mind, is what Hogan could have recovered in the first place.
As Gawker argues:
As a threshold matter, the economic damages award should be vacated because the jury compensated Plaintiff for “harm” that is not legally recoverable under Plaintiff’s causes of action. The only claim for which Bollea can recover economic damages is his claim for misappropriation of his right of publicity. And, Florida law is clear that recovery is limited to “damages for any loss or injury sustained” by the plaintiff “by reason” of an unauthorized use of his name or likeness, “including an amount which would have been a reasonable royalty.” Fla. Stat. § 540.08(2) (emphases added); see also Cason v. Baskin, 20 So. 2d 243, 254 (Fla. 1944) (“the publication of a book containing a biographical sketch of a person does not legally entitle such person to share whatever profit is realized from the sale of such book”). In other words, recovery on such a claim is limited to loss or injury to the plaintiff, not benefit to the defendant.
Cases also hold that calculation of damages based on the number of viewers or readers is appropriate when a tortious act is transmitted by means of mass media. For example, in Keohane v. Wilkerson, 859 P.2d 291 (Colo. App. 1993), a defamation action based on a statement that a judge was accepting bribes, the Court held that the number of people who read the libel was relevant to the amount of damages awarded: “That a defamatory statement is made to one person will not preclude recovery of actual damages; the number of people hearing the defamatory statement is relevant to the amount, not the fact, of damages.” Id. at 302 (emphasis added). The damages element of a public disclosure of private facts claim is analogous to a defamation claim in this respect— the more people who read, view, hear, or see either, the greater the damage to the plaintiff. Fairfield, 291 P.2d 194, 198-99 (damages issues of invasion of privacy claim are analogous to libel damages).
Similarly, in Geragos v. Borer, 2010 WL 60639 (Cal. App. Jan. 11, 2010), the court addressed the importance of considering the number of people who heard or read the material in calculating damages. Geragos involved a surreptitious videotaping of conversations between Michael Jackson and his lawyers. The plaintiffs obtained a quick injunction— which led to only a few people viewing the video. The court later reversed a substantial damage award because so few people saw the material. In reaching its decision, the court distinguished Sommer v. Gabor, 48 Cal. Rptr. 2d 235 (Cal. App. 1995), which upheld a $2 million damage award based on false statements in a periodical that the plaintiff was broke and destitute and had lost all the money she had made in show business. The court explained, “[t]he present case is distinguishable from Sommer. The defamatory statements in Sommer were published in periodicals that were distributed to millions of people. Here, by contrast, almost no one viewed the silent videotape of plaintiffs and Michael Jackson.” Geragos, 2010 WL 60639 at *9.
Given the wide latitude a jury is afforded in fashioning a damage award in privacy cases to fully and fairly compensate a plaintiff, analogizing Gawker Defendants’ misconduct to a conversion of personal property is also appropriate. Under conversion law, Mr. Bollea would be entitled to an award of damages based on the special value of what was taken from him, even if that measure is over and above the fair market value.
As Hogan admits, implicitly, there aren’t a lot of cases on these issues, and there certainly aren’t a lot of Florida cases. Hogan argues that the damages here should be “analogous” to damages in defamation and conversion of personal property claims. We’ll just have to see if the Florida court agrees.
What About The Punitive Damages?
Somewhat strangely, the smallest part of the verdict was the punitive damages, a “mere” $25.1 million. Before trial, the parties entered into a stipulation in which Gawker Media LLC was worth $83,000,000, Denton was personally worth $121,000,000 (almost all of it from owning Gawker’s parent company), and the actual writer of the article, Daulerio, was $27,000 in debt, because being a writer for an online publication sucks. The jury nonetheless awarded those damages, split against all of the defendants, with $15 million against Gawker, $10 million against Denton, and $100,000 against Daulerio, because being a writer for an online publication sucks.
These punitive awards are not, by themselves, ruinous, but they are when combined with the compensatory verdicts, and Florida law prohibits punitive damages awards that “result in economic castigation or bankruptcy.” And Gawker makes a good point about the size of this verdict compared with the tobacco verdicts in Florida:
The award of $25.1 million in punitive damages is also entirely out of proportion to what has been awarded in similar cases. Awards in that range have rarely been awarded in Florida, and never in the context of an invasion of privacy claim. As discussed above, the same is true of cases involving sexually-oriented material from other jurisdictions. To find comparable sums being awarded, it is necessary to look to wrongful death cases, for example, the numerous cases brought in Florida against tobacco conglomerates following Engle. Punitive damages in such cases have topped out at $30 million, close to what the Plaintiff was awarded in this case. See, e.g., Philip Morris USA Inc. v. Cohen, 102 So. 3d 11 (Fla. 4th DCA 2012) ($10 million in punitive damages split between two tobacco companies); Lorillard Tobacco Co. v. Alexander, 123 So.3d 67 (Fla. 3d DCA 2013) ($25 million punitive damages); R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010) ($25 million in punitive damages); Philip Morris USA, Inc. v. Naugle, 103 So.3d 944 (Fla. 4th DCA 2012) ($25,965,000 punitive damages); R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015) ($30 million in punitive damages). Those are, of course, against tobacco companies who have net worths in the billions – many, many times the net worth of Defendants here.
Gawker Defendants’ “comparable” cases analysis is of no value here. They treat the award in this case as a $25 million punitive damages award, and ignore the fact that there are separate awards of $15 million, $10 million, and $100,000. And the privacy cases they rely upon do not involve and are not in any way comparable to publication of a surreptitiously recorded video of a private sexual encounter on the Internet that over seven million people watched. See Genesis Publications, Inc. v. Goss, 437 So. 2d 169 (Fla. 3d DCA 1983) (publication of single nude photograph that plaintiff voluntarily posed for and expected to release to the public); Weinstein Design Group, Inc. v. Fielder, 884 So. 2d 990 (Fla. 4th DCA 2004) (commercial misappropriation of baseball player’s name); Sun International Bahamas, Ltd. v. Wagner, 758 So. 2d 1190 (Fla. 3d DCA 2000) (commercial misappropriation of photographs from modeling shoot); Cape Publications, Inc. v. Bridges, 423 So.2d 426 (Fla. 5th DCA 1982) (publication of photograph of plaintiff clad in a dishtowel which covered her private parts).
Finally, Gawker Defendants argue that the punitive damages awarded would “economically castigate” them. The evidence shows that the jury properly took this factor into account in rendering its verdict: while Gawker and Denton were assessed awards in the millions, only $100,000 was awarded against Daulerio.
The awards against Gawker and Denton are only a fraction of their net worth. Gawker Defendants argue that the compensatory damages award should be included when applying the economic castigation rule. That makes no sense. It would mean that a court could never impose any punitive damages award at all against a defendant when compensatory damages were awarded in excess of the defendant’s net worth, no matter how reprehensible the conduct of the defendant. And there is no rule limiting compensatory damages based on ability to pay.
Personally, I can’t see the punitive damages verdict standing at that amount, given the comparable cases. It’s like with the economic damages issue: sure, having over seven million people see a sex tape of yours isn’t comparable to watching a loved one die from cancer because tobacco companies concealed it for decades, but does anyone really think the former is worse than the latter?
What About Peter Thiel Bankrolling Hogan’s Case?
I’ve been discussing litigation financing on this blog for years. The most detail we get about the arrangement is from The New York Times, which says:
He said that he hired a legal team several years ago to look for cases that he could help financially support. “Without going into all the details, we would get in touch with the plaintiffs who otherwise would have accepted a pittance for a settlement, and they were obviously quite happy to have this sort of support,” he said. “In a way very similar to how a plaintiff’s lawyer on contingency would do it.” Mr. Thiel declined to disclose what other cases he had supported but there are at least two current cases against Gawker.
Without revealing an exact figure, he said that estimates of $10 million in expenses so far were “roughly in the ballpark.” He added: “I would underscore that I don’t expect to make any money from this. This is not a business venture.”
He would not say whether he had compensated any of the people, including Mr. Bollea, which could raise questions in an appeal. He insisted “there was no gray area” in what he had done.
If we take Thiel’s comments at face value, then there really is no issue here. Thiel has more than enough lawyers to structure a funding arrangement in an appropriate way, and his personal reasons for funding the case and his own belief that he doesn’t “expect to make any money from this” don’t change the underlying legality of the investment. Litigation funding has grown remarkably in the past few years, and has enabled plaintiffs to truly take on giants, including taking on the tobacco companies in Florida. If you want to know more about this subject, you can read Walter Olson’s take and my comments at Overlawyered.
What’s The Bigger Picture Here?
Dozens of articles have written about the Hogan v. Gawker case as some sort of harbinger of things to come. Personally, I see it as a fluke, a type of perfect storm. On the law, the court’s rulings on genuinely disputed issues were almost all in favor of Hogan — that’s not to say the court was biased or unfair, just to say that, in the big scheme of things, it would be foolish to believe that other courts will necessarily rule the same way on all of the same issues. In terms of the facts, read this article by Hogan’s lawyer, Charles Harder, written soon after the verdict. He points out, among other issues, that “Gawker’s counsel did not adequately prepare their witnesses, and Daulerio, among others, made admissions that severely undermined the ‘newsworthy’ defense and would later inflame the jury with their arrogance and defiance.” I completely agree.
Some of Gawker’s testimony was insane, like when Denton said he would be fine publishing the sex tape of a child celebrity, so long as they were more than four years old. What is a jury supposed to think about that? Is that really the standard Gawker uses? Similarly, Gawker foolishly set up a detailed standard for newsworthiness, then admitted they didn’t follow it: “During cross-examination, Daulerio testified that each of the 10 reasons Gawker’s counsel gave for the supposed newsworthiness of posting an uncensored, secretly recorded sex video were not even considered by Daulerio at the time he posted the video and thus were not part of the First Amendment defense.” I can tell you as a plaintiff’s lawyer that there are few things worse for a defendant’s case than for the defendant to admit they didn’t follow their own policies, procedures, or guidelines.
Like I wrote above, this looks more like a perfect storm than a trend in the law, and even in that context there’s still a high likelihood that an appellate court takes away some or all of Hogan’s victory.