Blog author WMU-Cooley Law School Professor Jeffrey Swartz served as a county court judge for Miami-Dade County, Florida, where he presided over criminal and civil cases before joining the WMU-Cooley faculty. Professor Swartz teaches Criminal Law and Criminal Procedure, along with being the legal expert for ABC Action News.
Jury selection began Tuesday in Tampa, Florida in the trial of the lawsuit by Terry Bollea, better known as professional wrestler Hulk Hogan, against the website Gawker. Factually, the case revolves around Gawker obtaining, and then publishing, a 2006 video of Hogan having sex with the wife of a local radio shock jock Bubba Clem aka “Bubba the Love Sponge.” Hogan claims that the recording was made without his knowledge or consent.
Gawker’s position is that the tape was fair game, since Hogan made his sex life public by speaking of it frequently and made it one of the centerpieces of his book, and his television and radio appearances.
At the same time, the Erin Andrews trial proceeds on her claim against a stalker who surreptitiously recorded her nude in her hotel room by removing the peephole viewer. She is also suing the hotel for failing to secure her privacy by confirming she was in the hotel, conceding to the stalker’s request to be put in the room next to her and not advising her that a request had been made for such a room placement.
There are parallels and distinctions. Both claim invasion of their privacy. In Hogan’s case he knowingly and purposely made his sex life public. However he claims he has the right to determine what the public should know, not to mention that Gawker used an illegally produced video in violation of Florida state statutes.
On the other hand, Erin Andrews claims she is humiliated by publication of the video on the Internet, which to date has garnered up to 14 million views. Experts have testified that despite numerous efforts to remove the video, individuals who have stored or downloaded the video keep posting it. Thus, they have testified, it may never cease to be out there for the public to view. She claims not only an invasion of privacy, but security failures by the hotel. She is seeking $75 million.
In Hogan’s case the issue may seem simple. “How far does the public have the right to delve into a public figure’s private life?” However the answer is more complex. There is a fine line that is really at issue here. Is there a difference between what a public figure makes public and what a public figure has the right to keep private?
Hogan is claiming: The fact that I talk about my sex life doesn’t mean Gawker possesses the right to disclose what I do in the privacy of a bedroom. That is, what I choose to let the public know, I choose to let it know. What I don’t want the public to know, it doesn’t have the right to know.
This is what Gawker does. They get their hands on information like people’s private sex tapes, and they put them out there for whatever profit they can get for it. They feel this case is, for all intents and purposes, an invasion on their business model.
Gawker Media has filed several motions in an attempt to stain Hogan’s character, make the tape proof of those allegations and decrease the amount of damages, even if Gawker were to lose the case. If Gawker were to lose the $100 million case, it could potentially put them out of business.
After losing these motions, portions of the unauthorized sex tape that capture Hogan repeatedly dropping the N-word and other racial slurs about his daughter’s boyfriend surfaced through other tabloid outlets. Hogan’s contract with WWE was terminated. Hogan has alleged that Gawker leaked the tape. Gawker denies that.
Both of these cases test the limits of the public’s right to know about celebrity’s private lives, and the right of those same celebrities to maintain private what they chose to keep private. On the other side, how far can the media go to expose whatever they can about a public figure’s life?
My prediction is that Erin Andrews will win BIG, and Hogan may win a verdict, but in monetary terms he will lose just as big as Andrews wins.