Hogan. (AP)
The FBI confirmed on Friday the existence of three videos of professional wrestler Hulk Hogan and Heather Clem, the pair at the center of a sex tape that has spurred a multi-million dollar invasion of privacy lawsuit against Gawker Media.
The acknowledgement comes amid a years-long legal tug-of-war between Gawker Media and two government organizations over records from an investigation into the origins of a tape published in part by Gawker in 2012. If disclosed, the evidence could figure into an upcoming legal showdown between Hogan and Gawker Media that threatens to drain the company’s finances.
As Poynter and others have reported, the case turns on the question of whether Gawker Media was justified in publishing an edited sex tape showing Hogan — real name Terry Bollea — having sex with Heather Clem, the ex-wife of Hogan’s friend, radio personality Bubba the Love Sponge Clem. Hogan’s legal team says Gawker’s choice to show the sex tape constitutes an invasion of privacy entitling Hogan to $100 million in damages; Gawker Media maintains that the video is protected under the First Amendment on the grounds that Hogan is a public figure whose sex life is a matter of public concern.
Last week, the FBI and the Executive Office of United States Attorneys were ordered by a court in Florida to turn over discs and documents requested by Gawker Media late last year as part of a Freedom of Information Act request. The FBI had previously withheld the records for a variety of reasons, citing concern for the privacy of Hogan and Clem and a desire to avoid interfering with a separate investigation being conducted by another agency.
The FBI and the Executive Office of United States Attorneys are now asking the court to reconsider its order to produce the records. In a motion filed Friday, the two agencies requested relief from the order or more time to review, redact and send the records before the June 26 deadline, which has already expired.
In that filing, the FBI included a statement from a records division employee who described the contents of three DVDs and two additional discs held by the agency that are responsive to Gawker Media’s FOIA request. Each DVD contains recordings of Heather Clem and Hogan “engaged in sexual relations,” according to the statement. In addition, all three videos feature a “third party” who appears or is heard speaking off-camera, according to the statement. The other two discs contain audio recordings: One features an unidentified third-party discussing the Hogan case and the other contains a recording of an FBI special agent and multiple third parties.
After Gawker Media won its lawsuit against last week, the company said in a statement that the records from the FBI would shed light on the case:
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. We always want to get to the bottom of every story, and now we’re a step closer to knowing the full truth here.
The FBI maintains in its motion for reconsideration that the release of the recordings could breach the privacy of the third party on the videos, whom Hogan’s legal team thinks is Bubba the Love Sponge Clem. Although Hogan and Heather Clem have signed court-ordered privacy release waivers relating to records held by the FBI, the third-parties in the video and audio recordings have not, according to the motion.
The FBI is requesting a 30-day extension to process and release the audio CDs, but expects to have some of the other discs delivered by Monday, according to the statement. The trial is scheduled to begin in St. Petersburg, Florida on July 6.
