You guys might have a better chance if the judge didn't all but beg the appeals court to fuck with the case.
On Friday afternoon, a Florida jury returned a verdict in favor of professional wrestler Hulk Hogan in his suit against Gawker Media, finding that Gawker had invaded his privacy when it published a brief excerpt of a 30-minute sex tape featuring Hogan that it had anonymously received.
Hogan had asked for $100 million in damages, and the jury found that Hogan is entitled to $115 million in compensatory damages, plus punitive damages.
Gawker CEO Nick Denton said in a statement that the company would appeal the verdict.
“Given key evidence and the most important witness were both improperly withheld from this jury, we all knew the appeals court will need to resolve the case,” he said in the statement. “I want to thank our lawyers for their outstanding work and am confident that we would have prevailed at trial if we had been allowed to present the full case to the jury. That’s why we feel very positive about the appeal that we have already begun preparing, as we expect to win this case ultimately.”
While the sheer size of the judgment is unexpected, the fact that the jury decided in favor of Hogan is not. Gawker has long anticipated that it would lose the jury trial, and has been preparing for an appeal.
“It’s probably difficult to win the case entirely, outright, knowing the jury that we’re facing, but it’s possible. More likely than not, we end up with a really small judgment that we can easily carry and we appeal that,” Gawker president and general counsel Heather Dietrick told employees during a staff meeting in October.
The trial was always going to be an uphill battle for Gawker. The company’s legal justification for posting the tape — that the sex tape was a newsworthy matter of public concern and therefore Gawker’s publication of it was protected by the First Amendment — was always unlikely to sway a civilian jury, even if it is reasonably well-supported by Florida case law.
Then there’s the setting of the trial. Gawker’s brand of New York media snark is mostly unknown in St. Petersburg, a small city on the Gulf Coast across the bay from Tampa. When potential jurors were asked during voir dire whether they had heard of Gawker, the vast majority said that they had not — though a few were familiar with Gawker Media sites like Deadspin and Jalopnik. Hogan is much better known. He grew up in Tampa and now lives just up the road in Clearwater.
The magnitude of the culture clash between Gawker and the St. Petersburg jury was apparent on March 8, when Hogan’s legal team showed the jury excerpts of a pre-taped deposition from former Gawker editor A.J. Daulerio, which had been recorded in 2013.
Daulerio said in the deposition that he had found the sex tape “amusing” and would have published it even if he had known that it would upset Hogan. He also had an unfortunate exchange with one of Hogan’s attorneys toward the end of the deposition.
“Can you imagine a situation where a celebrity sex tape would not be newsworthy?” the attorney asked him.
“If they were a child,” Daulerio said.
“Under what age?” the attorney asked.
Annoyed by the question, Daulerio flippantly replied, “Four.”
“No four-year-old sex tapes, OK,” the lawyer concluded.
The carefully edited video of the deposition ended after that. The jury looked uncomfortable. Later that day, the New York Post ran a story with the headline, “Where Gawker editor draws the line: A sex-tape of a 4-year-old.” Throughout the rest of the trial, Hogan’s lawyers repeatedly reminded the jury what Daulerio had said in his deposition.
Hogan’s lawyers also showed the jury a deposition from Denton, which was less controversial but still buttressed their argument that Gawker was part of an arrogant culture that disdained personal privacy.
“I believe in total freedom and transparency. I’m an extremist when it comes to that,” Denton said in the deposition.
Hogan’s attorneys also showed the jury transcripts of Gawker staffers’ internal chats, which included a number of tasteless jokes about the Hogan sex tape.
Observers of the trial got a sense of how the jury felt about Gawker on Monday afternoon, following testimony by Jezebel editor in chief Emma Carmichael. Jurors in Florida are allowed to anonymously submit written questions to witnesses, which are then approved and read by judges. One of the jury’s questions to Carmichael was whether she had ever had an “intimate relationship” with her bosses. (She said that she had not.)
The jury seemed either unaware or indifferent to the question’s sexist implications, but journalists on Twitter immediately condemned it. Motherboard contributing editor Sarah Jeong tweeted that “if the jury is asking questions like that, gawker is boned.”
In his closing arguments, Hogan attorney Kenneth Turkel emphasized the cultural divide, reminding the jury that Gawker was based in New York City, on “Fifth Avenue.” (Gawker’s current offices are technically located on 17th Street, close to the corner of 17th and Fifth Avenue.) “This guy’s up in New York sitting behind a computer and playing God with other people’s lives,” Turkel said of Denton.
Gawker may have lost the trial, but it is not clear that the trial matters all that much. Gawker plans to immediately appeal the verdict, and Dietrick is confident that the appeals court will rule in favor of the company.
“We’ve already taken this case up on the merits once to the appeals court on the preliminary injunction motion and we got a decision in our favor saying this is protected by the First Amendment, it’s a matter of public concern and we wrote properly about this topic,” Dietrick told POLITICO Media in October. “That’s the merits of the case. Those are the same issues that we would be taking up at the very end.”
To understand why Dietrick is so confident, you need to understand the full, convoluted history of the case.
Since Hogan lives in Florida and Gawker is based in New York, Hogan originally filed a suit against the company in Florida’s Middle District federal court. He also asked the federal judge, James Whittemore, to grant a temporary injunction against the Gawker post, forcing the company to remove it. Judge Whittemore denied Hogan’s motion, ruling that Gawker’s publication of the video was protected by the First Amendment.
Sensing defeat, Hogan dismissed the federal court case and instead pulled Gawker into Florida state court. Hogan had already filed a suit in state court against Bubba Clem for recording the video, so he just added Gawker as a defendant to the suit. (He later settled with Bubba Clem, for just $5,000, and with Heather Clem.) He then asked the state court judge, Pamela Campbell, for the temporary injunction that Judge Whittemore had denied him; she granted it.
Gawker appealed the injunction, and Florida’s Second District Court of Appeal issued an immediate stay, which prevented the injunction from going into effect. Eight months later, the appeals court issued a scathing opinion that overturned Campbell’s order on the grounds that the video was newsworthy and Gawker's publication of it was protected by the First Amendment.
Armed with the appeals court decision, Gawker went back to Campbell and asked her to dismiss the case, since the appeals court had just ruled that publishing the video was protected by the First Amendment. Campbell refused.
Here’s where it gets (even more) complicated. Gawker went back to the appeals court and complained that Campbell had ignored their earlier ruling. Gawker then filed a writ — a formal request for the appeals court to take up the case and rule on whether or not Hogan’s suit should be dismissed on First Amendment grounds. The appeals court dismissed the writ, but did not deny it. For Gawker's legal team, that distinction is key. Denying the writ would mean that the appeals court rejected Gawker’s argument that publishing the sex tape was protected by the First Amendment. Dismissing the writ only means that the appeals court did not have the jurisdiction to dismiss the case.
To Gawker’s lawyers, the dismissal was a signal; the appeals court was indicating that even though it could not force Campbell to dismiss the suit, it still agreed with Gawker’s legal argument and would rule in Gawker’s favor when the case was inevitably appealed.
The appeals court’s most recent ruling related to the case favored Gawker. On Wednesday, the court overturned Campbell’s decision to seal nearly 1,000 pages of court documents and related evidence — including evidence suggesting that Hogan’s primary motivation in bringing the suit may have been to prevent the public from learning that he had used racial slurs on a different sex tape, not because he felt his privacy had been invaded.
Campbell ruled last year that such evidence was irrelevant to the case and could not be shown to the jury; she also ordered that the documents be filed under seal, preventing the media and the public from learning about it. A group of media organizations appealed her order, and the appeals court sided with the media organizations, ruling that the public had a right to see the court documents and related evidence.
During the trial, Campbell openly acknowledged that the jury’s verdict would likely be appealed. On March 14, as Gawker and Hogan’s attorneys argued over whether or not Clem should be required to testify before the jury, Campbell ruled that he should not be and said that the appeals court could study the issue later.
While Gawker appeals the case, though, it could still be compelled to pay the $115 million judgment. Hogan can move to collect the judgment unless Campbell or the appeals court issues a stay on the judgment.
Under Florida’s rules of appellate procedure, Gawker can get an automatic stay pending appeal if it pays a “supersedeas bond” equal to the amount of the judgment, plus two years’ worth of interest. But Gawker doesn’t have $115 million to pay the bond.
Fortunately for Gawker, a relatively recent Florida statute may save them from having to pay the full judgment. Florida statute 45.045, enacted in 2006, caps supersedeas bonds at $50 million — as long as Gawker pays a $50 million, it can get an automatic stay on the $115 million judgment.
Even $50 million is a lot of money, though, so it’s likely that Gawker will ask the courts (first Campbell, and if she refuses, as she likely will, then the appeals court) to either reduce the amount of the supersedeas bond or to stay the judgement without requiring a bond.
Dorothy Easley, one of Florida’s top appellate attorneys, writes in a 2012 article in the Florida Bar Journal that courts have the power to issue stays without requiring supersedeas bonds. A defendant like Gawker can get an automatic stay by paying the full amount of the bond, but if they cannot afford the bond, then they can still ask the courts to grant a stay; they just won’t automatically receive one. It will be up to the court’s discretion.
Given how favorable the appeals court has been toward Gawker so far, the company is understandably confident that the appeals court will issue a stay without requiring them to pay a $115 million bond.
But that, right now, is the most important question facing Gawker's legal team — and its business.
