Bollea v. Gawker and The Role of Money in Free Speech

In 2016, a Florida state court jury ruled in favour of Terry Bollea, also known as wrestler Hulk Hogan, in a suit brought against publisher Gawker Media and several of their employees, in relation to Gawker’s publication of a sex tape taken of Bollea in 2006.

            The tape, recorded without Bollea’s knowledge by Bubba Clem, depicted Bollea having sex with Clem’s wife Heather. It was published to the Gawker blog website by editor AJ Daulerio in 2012, under the headline “Even for a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed is Not Safe For Work but Watch it Anyway”.

            Bollea’s initial legal response was to sue Gawker for copyright infringement in Florida district court, but his request for injunction (which would require Gawker to take down the video from their websites) was denied by the district judge, James D. Whittemore. Bollea then withdrew his case in district court and sued in Florida state court instead, where the injunction was granted by Judge Pamela Campbell.

            Further complicating the case, Gawker responded to the state court injunction by refusing to take down the post containing the video. In an April 2013 posting titled “A Judge Told Us to Take Down Our Hulk Hogan Sex Tape Post. We Won’t.,” Gawker employee John Cook declared that Judge Campbell “seemed to fail to understand the basic First Amendment principle that “speech” includes forms of communication beyond word-sounds coming out of people’s mouths.” The injunction against Gawker was stayed and later denied after being taken to appeals court.

            The case of Bollea v. Gawker came to trial in March of 2016. The question of the trial was whether Bollea’s career as professional wrestler Hulk Hogan made him a public figure while “out of character,” to the degree that a sex tape was newsworthy and thus protected speech.

            The result of the trial, a total award of $140 million to Bollea for compensatory and punitive damages, was sufficient to drive Gawker Media, CEO Nick Denton, and Daulerio to file for bankruptcy.

            The level of scrutiny around the trial, however, redoubled in its aftermath. Two months after the jury verdict, in May of 2016, the New York Times published an article titled “Peter Thiel, Tech Billionaire, Reveals Secret War With Gawker” and showcasing Peter Thiel, described by the Times as a “billionaire Silicon Valley entrepreneur”.

Thiel’s war consisted of providing funding to those pursuing legal actions against Gawker, and stemmed from a 2007 article by Gawker subsidiary Valleywag which publicized Thiel’s homosexuality without his consent, but which provided no avenue for legal response, as Thiel was a public figure and openly, if quietly, gay. In the case of Bollea v. Gawker, Thiel provided Bollea with $10 million in financial backing for his lawsuit against Gawker.

            The Bollea verdict had already been received variably as either a victory for privacy or a crushing defeat for freedom of the press, but the addition of Thiel to the narrative altered the tone of the conversation to one on whether the presence of financial backing tainted the verdict.

            Gawker, which initially sought to appeal the state court verdict before settling with Bollea for $31 million in November of 2016, characterized Thiel’s actions taken against them as “petty revenge.” An article released the day after the New York Times piece on Thiel, “This Is Why Billionaire Peter Thiel Wants to End Gawker,” stated that Gawker blogs like Valleywag “made a business of holding [Thiel’s friends] accountable”, and suggested that Thiel’s backing of Bollea was born not of his personal experience as the Times article suggested, but of “Silicon Valley’s hostility toward any critical coverage”. Gawker’s allegations extended to claiming that Thiel’s status as a billionaire let him use the legal system to push a grudge.

            However, the results of Bollea v. Gawker were determined by jury, and no evidence was ever brought to light that Thiel committed any actual wrongdoing in financing a perfectly legitimate trial. The shifting of focus to Thiel’s actions necessarily takes focus off of Gawker Media’s, and is frequently used to cynically question the entire value of the trial and verdict as though Thiel’s financing directly decided them.

            In the modern environment of distrust towards media, it is nonetheless important to remember that a line does exist to be crossed, and not to be too ready to shield media from consequences simply because of their status as an underdog in a particular fight.