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HULK HOGAN V GAWKER: WRESTLING IN COURT OVER NONCONSENSUAL SEX TAPE

June 16, 2015

Given how Hulkomania dominated Sunday mornings throughout my childhood as my Dad watched WWF (and GLOW, ugh), it’s only natural that I’m rooting for Hulk Hogan once again. This time the feud is far more pernicious than his fight for Ms. Elizabeth against Macho Man Randy Savage.  Opposite Hulk in the ring is Gawker Media.

Back story:

So, Hulk Hogan (real name Terry Bollea) was secretly videotaped having sex with his friend’s wife in 2006.  The video was leaked to a third party.  Gawker obtained it, and spliced it up, condensing it into a short montage of the sweet shots that it went on to published on October 4, 2012 along with commentary.

The video had been circulated before this.  TMZ had reported its existence in March, 2012 and The Dirty published some screen shots which have since been removed. But only Gawker published some of the actual footage – and then refused at all costs to remove it.

Hogan won a temporary injunction in Florida State Court in 2013 requiring that Gawker remove the video. Gawker intent on continuing what Hogan calls its “intentional, outrageous, irresponsible and despicable conduct,” got an emergency stay of the injunction and won on appeal in January 2014.

Hulk Hogan is seeking a $100m judgment against Gawker, using the tort “publication of private fact.”  Gawker absurdly argues that the publication of private fact claim does not apply because Hulk has spoken openly about his penis and sex life in the past.  Furthermore, they claim that the video is newsworthy because it shows him having sex like a normal person, contradicting his public boasts of being a sex god with a penis the size of a fire hydrant. Or whatever.

Gawker’s president and general counsel, Heather Dietrick, was quoted in Capital about how she sees the Florida jury handling the case:

“I think as a common-sense matter, they’re going to see that, see what he’s talked about in the past. He’s talked about really, really graphic details of his sex life, again and again and again, including on the shock jock’s show” 

It’s absurd to conclude that talking about one’s sex life waives one’s right to privacy.  Celebrities included.

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Dietrick goes on to state about the prospective jury:

“These are practical people. I think they’re going to see through him and say, ‘Give me a break. Take responsibility for what you did here.’”

Gawker’s founder, Nick Denton who is personally named in the suit echoes Dietrick’s weird victim-blamey-ness, claiming that the lawsuit is about “fighting for the truth to hold elites accountable.”

For what exactly should Hulk take responsibility?  For what should he, as an “elite” be held accountable.  He was filmed without consent (a crime, by the way) and it was disseminated without consent.  In fact, Gawker is criminally liable under NY Penal Law 250.55 for dissemination of an unlawful surveillance image in the second degree. But, c’mon, their claim that this is newsworthy is just garbage.  Just like how Jennifer Lawrence talking about her body image does not make it newsworthy when her nude pictures were subsequently distributed without her consent, Hogan talking about his hulking package does not waive his basic rights to sexual privacy.

Gawker claims that this is a free speech issue and that the video and commentary are protected by the First Amendment.  They say it would chill free speech if they couldn’t publish things like this.  Gawker is forgetting one thing here. Gawker thrives on gossiping about celebrity sex.   If suddenly celebrities can’t talk about sex without it being construed as an invitation for nonconsensual sex tapes to be published nonconsensually, celebrities will stop talking about sex. Not only is this more profoundly chilling of free speech, but it also will deprive Gawker of its largest volume of clickbait.

If I could unwatch the hours and hours of WWF from my childhood, I would. (Thanks, dad)  Hopefully the millions of people who watched Hulk Hogan’s sex tape without his consent feel the same way. Not because of the disappointments surrounding Hulk’s sex abilities, but because viewing sexual material without the depicted person’s consent is a critical feature of the harm sustained by the victim.  Not only is Gawker’s conduct horrible for making it available, but so too, is every viewer who watched it.  By consuming humili-porn, one becomes an accessory to the privacy invasion, viral peeping toms.

The creepiness of consuming nonconsensual porn really can’t be summed up better than A.J. Daulerio does in the article Gawker published with the underlying video back in October 2012 (I’m purposefully not linking to that page):

“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.  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”  

Shameless voyeurs and deviants indeed! The rule for clicking on Internet links and video play buttons is like my pizza avoidance method in law school:  Just because it’s free doesn’t mean you should eat it.  Similarly, just because the link is there, doesn’t mean you should click on it. Discipline, people.