It Takes A Lot to Laugh (It Takes A Train to Cry): The
Tragedy of Hulk Hogan
by Charles Carreon
March 12, 2016
The Hulk Hogan vs. Gawker Media trial is a spectacle that
takes shape in the eye of the beholder. Lies and distortion
spin out of the courthouse like gravity waves emanating from
a Hollywood black hole. Any apparent truth extracted from
the event will decay into falsehood within instants of its
discovery, displaying a half life shorter than a Beryllium
isotope.
However, I have been always fond of rarities, and perhaps by
inspecting the wreckage surrounding the collision between
Hulk Hogan, the unstoppable human force, and Gawker Media,
the immovable corporate object, we can find some subatomic
remnants worthy of attention.
Hogan's giant fall is the story. Hogan enjoyed worldwide
adulation, on a par with Bruce Jenner and Lance Armstrong,
whose bones were recently picked clean by the slander
cartel. Falls of this magnitude drag down legions of fans,
disappointing the entire tribe of sport, casting nations
into despondency. And pain is a matter of degree. When
there's farther to fall, the fall hurts more. As Edward II
in Christopher Marlowe's play cries, in a howl of agony,
"The sorrows of kings are not like the sorrows of other
men!"
But sympathy for those who fall from the empyrean realms is
rare. Scandal vampires, mumbling pious sympathy while
chewing the cud of revenge, devour pictures of bloated
starlets on the beach and burned out leading men breathing
through tubes. When stars fall, they become psychic food for
jealous mobs. No longer stars, their misery does not tarnish
the illusion that wealth immunizes against pain.
The belief that rich people defeat misery and possess
pleasure fires the popular imagination, motivates social
climbers, and mutes political complaints. Actually a myth
for which evidence is lacking, the belief that wealth
preempts suffering is reinforced by the media at every turn.
"Oh!" we are urged to dream -- "What it must be like to live
like the Few!" F. Scott Fitzgerald was equating wealth with
happiness and perhaps even moral superiority when he told
Hemingway that "the rich are not like other people."
Hemingway's retort, "Yes, they have more money," ensured a
reverent place for his memory in the hearts of broke people
everywhere.
Nonetheless, the empyrean heights are dangerous, and falls
calamitous. Murdered by torture in the Tower of London, the
agonies of Edward the Second were indeed excessive. Compared
to such a devastating leveling, Hogan's sufferings may seem
small; however, we should not blind ourselves to his pain
and its cause. Wealth made him a target and created his
problem. His name is a publicity magnet that others, like
Gawker, were eager to exploit. The sex video, being a true
voyeuristic theft of a famous man's privacy, was enormously
valuable in the right hands. The sex happened, and the video
existed, only because a man Hogan thought was his friend set
it up to happen and made the film. Like an elephant in the
bush, Hogan was bagged for his tusks.
Hogan's testimony about how shame and humiliation now
emanate from his own mind, destroying his ability to relate
with others with confidence and self-respect, is direct,
first-person evidence of how a public shaming gives the
victim a heart transplant. In exchange for the familiar,
self-confident, self-respecting heart that usually beats in
your chest, you get a filthy, defiled, garbage-pumping organ
that circulates humiliation through every cell in your body,
and makes you fear every human interaction as
another challenge to your right to exist.
As I thought over the transcript of Hulk Hogan's trial
testimony, and that of his furious estranged wife, who put
her unhealed pain on record, I felt the poignancy of seeing
a big man beat down to nothing. When I started writing this
piece, casting about for some way to express that pain, I
thought of the title of that Dylan song, "It Takes a Lot to
Laugh, It Takes A Train to Cry." Although the news reports
don't mention the world's most famous wrestler crying in the
courtroom, I am sure it took a trainload of strength for him
to give that testimony [1] , to reveal the foolish behavior
that launched him on the road to total personal destruction.
Martin Luther King and the Invention of "New York Times
Malice"
While the miseries of the powerful might lead us to
sympathize with them when their names are dragged through
the muck, the law proceeds from entirely different
suppositions. The famous are deemed to have the means to
"talk back" in the media, so they are "public figures," and
the media doesn't have to be as careful to tell the truth
about them.
This wasn't the case until March 9, 1964, when the United
States Supreme Court published New York Times v. Sullivan,
and punched a hole in defamation law big enough to launch a
communication satellite mounted on a Saturn V rocket
straight through. Before NYT v. Sullivan, suing people for
talking dirt about you required only some basic allegations:
your neighbor had "published" a "false statement" to third
persons who understood the statement to be "of and
concerning" you, and as a result, people no longer want to
associate with you. And it wasn't any safer to tell lies
about a "public figure" than it was to tell lies about
regular people. Strangely enough, it was a certain Martin
Luther King, Jr., who had begun stirring the pot of American
history, whose activities prompted this momentous change in
the law of defamation. Ironically, he likely did more to
liberate the news media from caution and restraint than he
did to improve the condition of African-Americans. Not by
preference, of course, but rather because even greatness
does not empower us to defy fate, that uses us for its own
purposes.
Yes, the Sullivan case had an unusual origin [2], intimately
connected with the activities of Dr. King. The plaintiff who
gave his name to the case was the police chief of
Montgomery, Alabama, who alleged that the nation's newspaper
of record had defamed him by publishing an advertisement
seeking to raise funds for Dr. King's legal defense, signed
by luminaries such as Marlon Brando, Shelley Winters, Harry
Belafonte, Sammy Davis Jr., and Dr. Ralph Bunche. Among
other factual inaccuracies, the advertisement overstated the
number of times King had been arrested. Although not named
in the advertisement, Sullivan said that criticism of the
Montgomery police was "of and concerning" him. Published by
the Committee to Defend Martin Luther King and the Struggle
for Freedom in the South, the advertisement included a
clip-out coupon to send with a contribution or to request
more information.
It has often been said that hard cases make bad law, which
is to say that, when the social issues are stacked up ten
stories high on either side, it's going to be hard for the
judge to make a ruling that will apply well as precedent in
future cases. The Montgomery Police Chief's legal attack on
the nation's pre-eminent liberal periodical caused the
Supreme Court to circle the wagons. The Sullivan case
produced this rule: A "public figure" cannot win a
defamation lawsuit against a "media defendant" unless he
proves that the defendant published a lie, and did so with
"reckless disregard for the truth." My torts teacher Steve
Schiffrin liked to call this "New York Times malice," a term
that I see hasn't caught on, although I find it an excellent
mnemonic to remember just how far a newspaper can go when
treading on the faces of the famous.
Subsequent cases made it clear that there are two types of
public figures: those who, like Hulk Hogan, have names that
are as well-known as popular brands, and those who, because
of their desire to speak in the public forum, "inject
themselves into events," and therefore themselves become
"newsworthy topics." Of course, there was a time when Hulk
Hogan was just Terry Bollea, a person he would now gladly
remain forever, happily eschewing any possible reversion to
Hulk-hood. But Terry was at one time eager to become Hulk
Hogan, and vigorously injected himself into public life. He
was so feckless about super-sizing his image that he went on
the Howard Stern show, which always seems like a good idea
at the time, but turns out to be nothing but an opportunity
to take a shit shower provided by a man with a skanky mind
whose special ability is to induce people who should know
better to engage in offbeat behavior for which they will
later apologize, or wish they could.
So just to review, based upon a decision that got rid of a
frivolous lawsuit that was intended to silence
African-American speech on the issue of white racism, we got
a rule that says the newspapers can be less careful about
being correct when they say negative things that might be
lies about famous people, because they're famous and have
means of shooting back at their defamers. Then that rule
expanded to allow newspapers to be less careful about saying
nasty things about anyone who speaks out on an issue of
public importance. This second rule turns into a third rule
that anyone whose statement on a public issue gets printed
in the paper is presumed to have "injected themselves into
the public debate," thereby becoming a "limited public
figure," about whom the newspaper can safely make false
statements, so long as they don't do so with "reckless
disregard for the truth." The third rule, as you can see,
essentially turns anyone who speaks out and gets publicity
for it into that type of person who has a "bummer of a
birthmark." [4]
What Is this "Privacy" of Which You Speak?
Some people live in the world as they wish it were. Want to
find some of those people? Google the phrase "no
constitutional right to privacy." You will find lots of
articles proclaiming this to be the truth, but it is just
plain wrong. Ten States' Constitutions protect the Right to
Privacy, and Florida, where the Hogan trial is taking place,
is one of them. [3] Article I, Section 23 of the Florida
Constitution states in relevant part: "Every natural person
has the right to be let alone and free from governmental
intrusion into the person's private life except as otherwise
provided herein." Take note that the first part of the
sentence protects the "right to be let alone," and while the
second part of the sentence seems to limit the effect of
Sec. 23 to protection from "governmental intrusion," this is
in fact the place where it is most needed in the forty
states that lack such a constitutional protection. [5]
This phrase "the right to be let alone" has a history. It
was coined by Thomas M. Cooley in his law treatise, "Law of
Torts," first published in 1880. [6] The phrase was adopted
by Samuel Warren and Louis Brandeis in
a Harvard Law Review article published in 1890,
because Warren had been suffering from attacks in the press.
This article popularized the idea, which motivated judges to
recognize a right to privacy under certain circumstances,
and moved legislatures to enact statutes that gave the
victims of privacy invasion the right to sue for damages.
There are four types of privacy invasion lawsuits, all of
which can be pursued in Florida, as well as California and
many other states: (1) appropriation of name or likeness
(stealing publicity), (2) intrusion into private spaces
(peeping and spying),(3) public disclosure of private facts
(spreading embarrassing truths), and (4) publicizing true
facts that cast the victim in a false light (very similar to
the previous type of claim, but the misleading facts need
not have been private).
Stealing Publicity to Sell Advertising
In his case against Gawker, Hogan has invoked Florida's
"right of publicity" statute, Section 540.08, just as he did
back in May 2010, when he sued the cereal company, Post
Foods [7], for screening an ad with a cartoon character
named "Hulk Boulder" who pushed chocolate frosted sugar
bombs while infringing on Hogan's famous moniker and visage.
Nineteen other states [8] have right of publicity statutes,
that make it unlawful for anyone to "publish, print, display
or otherwise publicly use for purposes of trade or for any
commercial or advertising purpose the name, portrait,
photograph, or other likeness of any natural person without
the express written or oral consent [of the] person." In the
lawsuit over the cartoon-Hulk, Post wised up after a few
months, and pulled the commercial.
In that battle, Hogan was essentially saying, "If you want
me to sell your stupid cereal, call my agent, don't call a
cartoonist! I'm already a cartoon!" But Gawker wasn't
selling cereal, were they? No, they were selling Gawker, so
Gawker made a few improvements to the video, that was long
and tedious, for the most part, editing it to less than a
tenth of its original length, turning it into a real porn
flick by cutting out everything but the oral sex and
penetration scenes, and providing a crude account of the
full-length production authored by a fellow named A.J.
Daulerio, a one-hit bungler if ever there was one. Oh yes,
he's no longer with Gawker.
To connect up the pillaging of Hogan's privacy with the
misappropriation of Hogan's mega-publicity,
his lawyers
alleged that:
"The
Gawker Defendants posted the Video and Narrative [to profit
from] the sale of advertisements" and [by] "attracting new
viewers to the Gawker Site," whereupon "numerous media
outlets and websites picked up on the Video
and Narrative posted at the Gawker Site, and posted links to
it, thus exposing hundreds of millions of people to the
Video and Narrative [and] massive numbers of individuals
were drawn to the Gawker Site, for which the Gawker
Defendants have reaped tremendous revenues and profits ...
for a prolonged period of time ... as a direct result of the
tremendous fame and goodwill of Plaintiff."
You know it's hard to argue with that statement. When
traffic goes up on Gawker, it doesn't do so because they
published a
picture ofA.J.
Daulerio wanking off wearing Kiss makeup and high heels.
That
wouldn't really be much of a draw, even if Nick Denton was
doing performance art in the background, dressed in a black
rubber suit. Nope, it was a case of Hulkmania, and probably
sparked a lot of fan-sex. If every couple that made a baby
while watching that short had named their kid "Hulk,"
there'd likely be preschools full of them right now.
Peeping and Spying, aka Intrusion Upon Seclusion
Now life has gotten pretty sketchy, but you can take it to
the bank: it is illegal to film someone having sex in
private without their permission. It doesn't matter what
kind of sexual behavior they are engaged in, whether they
are alone or with company, or whether one of the
participants to the sex knows it's being filmed. It is
illegal if it is your friend, your enemy, your neighbor,
your teacher, your parents, your girlfriend, your boyfriend,
your wife, or anyone. It is illegal to trick your way into a
place where you've been told you aren't allowed to film, and
then film there. (Caveat) [9]
"Intrusion upon seclusion" is the legal name for peeping and
spying. The right to enjoy seclusion is simply "the right to
be left alone." A recent law review article [10] explained
what constitutes an "intrusion" into one's protected
seclusion:
"Examples of intrusion include the illegal diversion or
interception and opening of one's mail, peeping into
one's home, the viewing of a department store's changing
room by someone of the opposite sex where no adequate
notice has been provided, persistent and unwanted
telephone calls, wiretapping, or prying into a
plaintiff's bank account. To be actionable, the
intrusion must be offensive or objectionable to a
reasonable person, and the thing intruded upon must be
private."
Think about what this means, and you'll realize that this
rule sets up a flexible standard that can easily bite nosey
people with cameras right in the face. "Seclusion" is being
enjoyed by anyone who thinks they are alone, whether they're
sitting on the toilet, putting on makeup in the bathroom
mirror, or changing their clothes in a dressing room. Once
the privacy is set up, the person enjoying the privacy is
protected from "intrusion." Anytime someone breaks through
that seclusion without permission, or without giving
sufficient notice to avoid an embarrassing revelation, they
risk liability.
Is this right to enjoy seclusion unlimited? No, because it
only protects things that have been kept private in the
first place. As a key legal treatise on the subject states:
"The rule stated in this Section applies only to publicity
given to matters concerning the private, as distinguished
from the public, life of the individual. There is no
liability when the defendant merely gives further publicity
to information about the plaintiff which is already public.
* * Likewise there is no liability for giving further
publicity to what the plaintiff himself leaves open to the
public eye." Thus, Gawker is arguing that Hogan has made the
size of his penis and other sexual topics a matter of public
discussion, and cannot be heard to complain that Gawker has
revealed the identity of a secret sexual partner, the shape
of his body, the sound of his voice as he engages in sexual
activity.
Additionally, as Gawker keeps reminding us, the individual's
right to keep things private is counterbalanced against the
public's right to have knowledge of "newsworthy matters."
Since this defense also applies to our last two privacy
torts of "public disclosure of private facts," and
"publicizing true facts that cast the victim in a false
light," I will discuss these two torts first, then turn to
the "newsworthiness" defense.
The Good, the Bad and the Seriously Misunderstood
Truth hurts. Often more than a lie, because you can't deny
it. This is the problem that Hulk Hogan has. That really is
him in the video, engaging in tawdry sex with a person he
has no business being in bed with. Still, this is America,
and just because you did something stupid doesn't mean that
everyone automatically has the right to spread it all over.
There are such things as "private facts" that it is tortious
to "publicly disclose."
Now, in truth, this is a tort that business has got to love,
because it's all about relationships and expectations. If a
fellow gets drunk and goes down to the bar and foolishly
spills the beans about the affair he's been having with his
secretary, he cannot sue the bartender for telling the
secretary's husband. Nothing was kept private, the cat got
outta the bag, and them's the breaks.
But take another situation. The bartender overhears a quiet,
murmured conversation between two doctors from the hospital
around the corner, sharing health information about a person
in the neighborhood who has HIV. The bartender tells all of
his customers what he overheard. A private fact, that would
normally be kept hidden from the public and is highly
offensive to a reasonable person, has been disclosed to the
public. Okay, now that's a tort, and neither truth nor lack
of malice is a defense. Damages for plaintiff.
What about the last privacy tort on our list, "publicizing
true facts that cast the victim in a false light"? To help
you understand thisone,I'll
quote my Dad:
"Son,
don't do good things that look bad, or bad things that look
good." I took issue with his exhortation, arguing that we
shouldn't refrain from doing good things because others
might criticize. Dad countered that there were plenty of
good things to do that no one would say looked bad, so when
I was done with all of those, I could indulge in good works
that might endanger my reputation.
So let's imagine I finally did all the goodie-two-shoes
stuff, and wanted to do something good that looked bad. I
would go to strip bars and give out Christmas presents for
the dancers who had kids, and give the bouncers back rubs.
Of course, some paparazzi would photograph me coming out the
back door of a dive and caption it with something misleading
like, "PunkLawyer eighty-sixed for pawing dancers!" Then I
would sue them for false light privacy invasion and call the
bouncers as witnesses that they were the only people I laid
hands on.
Gawker and the Advent of Newsworthy Porn
According to Hogan's lawyers, Gawker's edit of the Video was
watched 7 Million times. Obviously people wanted to watch
it. The defense of "newsworthiness" has been tendered by
Gawker. Does it have any validity? According to the U.S.
Supreme Court [11], when the defense of newsworthiness is
offered to excuse a breach of privacy, "the first inquiry is
whether the newspaper 'lawfully obtained truthful
information about a matter of public significance.'"
So, let's get to it: (1) Did Gawker get the sex tape
lawfully? (2) Are the sex tape and the narrative truthful?
(3) Are the sex tape and written narrative of public
significance?
Unlawful Acquisition of the Tape
Gawker and other media outlets keep suggesting that Hogan
knew he was being videotaped having sex with Heather Clem,
but the evidence cuts the other way. Hogan has always been
consistent in saying that he didn't know. Heather Clem
corroborated that statement.
Hogan's lawyer argued at length that the video had been made
in violation of the Florida Video Voyeurism law. Sixth
Judicial District Pinellas County Case No. 12012447-CT011,
Transcript of Preliminary Injunction Hearing, Hon. A.M.
Campbell (April 24, 2013). And there's that snippet of the
video where Bubba Clem tells Heather that this tape is
"their retirement." Conclusion: The video was created by
deception with the intent to profit from Hogan's fame, and
therefore was illegally made. Thereafter, the taint of its
unlawful creation cannot be purged, and anyone who uses such
a videotape has united their intention with that of the
phony lover and her wretched spouse, the secret
videographer. Gawker could only have used the tape by
getting permission from Hogan and his sex partner. Gawker
did not try to get permission, and knew the tape had been
made and distributed without Hogan's consent.
Editing the Tape and Adding the Narrative Distorted the
Truth
It's undisputed that the tape that people watched 7 Million
times was not the one recorded by Bubba Clem. Rather, it was
a clip less than two minutes long that Gawker called a
"Highlights Reel." Now why did they do that? Because it
makes the whole thing much more likely to be watched by
people who are busy, and just want to see if it's really
Hulk Hogan having sex. Because it makes it more like
pornography. Because it objectifies the Hulk and his sex
partner, making them seem more like disposable action
figures that we can set into action and play for our
pleasure. The editing andthe
tasteless, horrible narrative written by A.J. Daulerioto
accompany it, are not
truthful depictions of what happened in the Hulk's tryst
with Heather Clem. He didn't set out to make a porn tape.
Even Bubba Clem didn't. Gawker did.
The Sex Tape and Narrative Were Not Sufficiently Significant
to the Public to Justify the Invasion of Hogan's Privacy
The Ninth Circuit Court of Appeals posed a rhetorical
question in a 1975 case [12]: "Does the spirit of the Bill of
Rights require that individuals be free to pry into the unnewsworthy private affairs of their fellowmen?" The answer
was in the negative: "In our view it does not [because]
privacy must have the protection of law if the quality of
life is to continue to be reasonably acceptable. The
public's right to know is, then, subject to reasonable
limitations so far as concerns the private facts of its
individual members."
The media's invasion of a famous person's privacy isn't made
lawful simply because the public is curious about everything
they do. The Restatement of Torts explains where we draw the
line on "determining what is of legitimate public interest"
for purposes of the defense of newsworthiness:
"In determining what is a matter of legitimate public
interest, account must be taken of the customs and
conventions of the community; and in the last analysis
what is proper becomes a matter of the community mores.
The line is to be drawn when the publicity ceases
to be the giving of information to which the public is
entitled, and becomes a morbid and sensational prying
into private lives for its own sake, with which a
reasonable member of the public, with decent standards,
would say that he had no concern. * * *"
Nor does the revelation of true facts by means of an
invasion of privacy make the invasion lawful. The Ninth
Circuit Court of Appeals explained why it does not:
"To hold that privilege extends to all true statements
would seem to deny the existence of "private" facts, for
if facts be facts -- that is, if they be true -- they
would not (at least to the press) be private, and the
press would be free to publicize them to the extent it
sees fit. The extent to which areas of privacy continue
to exist, then, would appear to be based not on rights
bestowed by law but on the taste and discretion of the
press. We cannot accept this result."
Based on these simple directives from the judiciary, that
place a value on preserving a sense of decency and decorum
in society, and protecting its members from outrageous
revelations that can turn them into social pariahs
overnight, it is hard to see where a legitimate
newsworthiness defense can be presented to justify Gawker's
act of turning a secretly filmed, objectively boring video
into a piece of celebrity porn by means of editing and
low-life promotional tactics.
The testimony of Gawker's own witness, former Editor in
Chief A.J. Daulerio, was played at the Florida trial, and
did the defendant no favors on the newsworthiness issue.
Daulerio, no doubt thinking he sounded clever in New York,
testified that he would not publish a sex tape of a
four-year old, and explained that his "editorial litmus
test" requires only two factors: "Is it true, and is it
interesting?" And of course, he found the surreptitiously
recorded video of a famous wrestler having sex with a radio
announcer's wife so "interesting" that he introduced it to
the world with this deep, engaging contemplation: "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."
Hogan put a journalism professor on the stand to testify
that Gawker's publication of the video and Daulerio's
narrative was not responsible journalism, was unduly
intrusive, and violated journalistic ethics. The public's
need to know, said Prof. Mike Foley of the University of
Florida, would've been satisfied with an article. They
didn't need to see the tape. That sounds right to me. I
haven't seen the tape, and I've written this whole article.
Predictably, the Ethics Chairman for the Society of
Professional Journalists objected to Prof. Foley's testimony
about journalistic ethics, emailing his cronies at media
outlets to urge them to push this line: "The SPJ Code of
Ethics is not relevant to whether an act is or is not legal.
The words 'ethical' and 'legal' are not synonyms."
Yes, of course, we lawyers know very well the difference. We
have been trained to teach our clients how to act both
legally and unethically. However, in this case, Gawker and
its editors had no interest in listening to lawyers. They've
been teaching their lawyers to help them pretend that the
law is what they want it to be. Thus, we have received this
lovely journalistic gift that they devised for the delight
of all: "newsworthy" porn.
3.
The other nine are Alaska (Art. 1, Sec. 22), Arizona (Art.
II, Sec. 8), California (Art. 1, Sec. 1), Montana (Art. II,
Sec. 10), Hawaii (Art. I, Sec. 7), Illinois (Art I, Sec. 6),
Louisiana (Art. I, Sec. 5), Oregon (Art. I, Sec. 9, as
interpreted by case precedent), and South Carolina (Art. I,
Sec. 10), also explicitly declare this right. M.J. Gorman,
Survey: State Search and Seizure Analogs, 77 Mississippi Law
Journal 417 (Dec 1, 2007).
5. Most states have made “invasion of privacy” by private
persons into a statutory claim that private parties can use
to sue each other. It’s when the government gets all up in
your business that you gotta start looking to the
Constitution.
7.
https://www.manatt.com/uploadedFiles/News_and_Events/Newsletters/AdvertisingLaw@manatt/Bollea
v. Post Foods.pdf
8. J.A. Johnson, The Right of Publicity and the
Student-Athlete, 7 Elon Law Review 536, 537 (2015) https://www.elon.edu/docs/e-web/law/law_review/Issues/Elon_Law_Review_V7_No2_Johnson.pdf
9.
Investigative filmmakers may have legitimate first amendment
defenses for this kind of trickery, though. Think animal
rights activists filming in slaughterhouses, and prison
activists filming in jails and prisons.
