Hogan. (AP)
Weeks before a trial that pits Gawker Media against professional wrestler Hulk Hogan in a high-stakes legal tussle, it’s still unclear whether the press will be allowed to view a sex tape that ignited the years-long invasion of privacy dispute.
Earlier this month, Hogan — real name Terry Bollea — filed a motion to close a portion of his trial against Gawker Media, scheduled to begin early next month in St. Petersburg, Florida. Specifically, the motion argues for preventing the press and the public from viewing a sex tape published by Gawker on the grounds that it will further erode the wrestler’s privacy.
In his motion to close part of the proceedings, Hogan argues that commotion caused by the public airing of the sex tape will also prejudice the jury and upend the decorum of the court. It contends that the public should be prevented from viewing “the explicit imagery that invaded his most intimate privacy” that will be “offensive to certain persons in the gallery.”
“Excluding the public from a very limited presentation of argument and evidence in this case complies with the established public policy of privacy,” the motion reads. “The very essence of Mr. Bollea’s claims is that his privacy was invaded by Gawker’s posting online on Gawker.com, video and audio footage showing Mr. Bollea naked and engaged in sexual intercourse.”
At the heart of the broader legal dispute is whether Gawker Media was justified in publishing the tape, an edited video showing Hogan having sex with Heather Clem, the ex-wife of his former friend, radio personality Bubba the Love Sponge Clem. In his lawsuit, Hogan contends that the publication of the video constitutes an invasion of privacy, entitling him to $100 million in damages; Gawker Media says its decision to show the video is protected by the First Amendment on the grounds that Hogan is a public figure who voluntarily made his sex life a matter of public concern.
On Friday, Gawker Media filed a response to the motion and several other motions filed by Hogan’s legal team that seek to exclude pieces of evidence from the trial, accusing the team of trying to try the case “in a fictional vacuum where everyone pretends that critical evidence does not exist.” Excluding the press and the public from seeing the tape, Gawker Media argues, infringes upon the company’s “constitutional right to due process.”
“A trial is not a lightly scripted reality television show with a contrived ‘Father Knows Best’ ending,” the response reads. “The courtroom is not a professional wrestling ring with a predetermined ‘world wrestling champion.'”
In an interview with Poynter, Hogan’s attorney, Charles J. Harder, says his motion is intended to exclude the press from hearing one piece of evidence: the sex tape. He says he doesn’t plan to request that the judge clear the courtroom while the video is being played — rather, he’s asking for monitors displaying the video to be pointed only at the judge, jury and attorneys.
“It’s designed to allow us to play the sex tape to the jury and to the judge and to the attorneys without playing it for the press,” Harder said. “Because once we play the sex tape for the press, there’s a concern that that the cat is out of the bag and we can no longer protect the privacy of the video.”
It’s still unclear whether the full video will be admitted as evidence — Hogan’s team has also filed a motion to exclude the tape from being introduced at trial. But regardless, Harder’s motion says precedent allows the public to be excluded when matters of privacy are at stake.
Several other media companies intend to join Gawker Media in opposition to the motion. Timothy J. Conner, an attorney for Jacksonville-based legal firm Holland & Knight, says his practice represents a coalition of media organizations that plan to file an intervening motion early next week. Their claim is based on a presumption that Florida courts are open to the public and that the press serves as a surrogate for the public at trials.
“You don’t have a right to try the case in private, and I don’t think that the basis that’s been asserted is a legitimate one,” Conner said. “We’re talking about information that has already been made available to the public.”
