The Hulk Hogan trial that could redefine freedom of expressi

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Re: The Hulk Hogan trial that could redefine freedom of expr

Postby admin » Fri Mar 11, 2016 10:19 am

Hulk Hogan Exudes Calm in Second Day of Sex Tape Trial Against Gawker
By NICK MADIGAN
MARCH 8, 2016

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Image
Terry Bollea, who wrestled as Hulk Hogan, was questioned on Tuesday during his trial against Gawker. Credit Pool photo by John Pendygraft

ST. PETERSBURG, Fla. — On the witness stand for a second day, Hulk Hogan was far from the chest-thumping, T-shirt-tearing champion wrestler admired for years by his fans for his braggadocio and his swagger.

Under quiet but relentless cross-examination Tuesday by a lawyer for the website Gawker, which he has sued for invasion of privacy, the wrestler was subdued, even melancholy. Referred to in court by his real name, Terry G. Bollea, and wearing a cross on a silver chain around his neck, he appeared intent on keeping calm under the onslaught, with only the occasional trace of irritation in his responses. Even then, he consistently addressed the lawyer, Michael Sullivan, as “sir.”

“I’m not the same person I was before all this stuff happened,” said Mr. Bollea, 62, and retired from the ring. “I don’t have my guard up anymore.”

Mr. Bollea is seeking $100 million in damages from Gawker, which in 2012 posted a secretly recorded video of him having sex with a friend’s wife. Mr. Sullivan zeroed in on the plaintiff’s admission that as a larger-than-life celebrity in a rough-and-tumble profession, he was in the habit of exaggerating or being untruthful.

By returning to the point again and again, Mr. Sullivan was clearly seeking to raise doubt among the six jurors about Mr. Bollea’s veracity in the case.

The defense attorney also spent considerable time focusing on the plaintiff’s public behavior, much of it sexually provocative, to underscore the notion that the release of the video of him having sex could not have been, in the public’s mind, an unusual or remarkable occurrence.

The case, being heard in a courthouse in downtown St. Petersburg, near Mr. Bollea’s hometown, has raised fundamental issues about privacy rights and freedom of the press in a technologically nimble age in which anyone can publish the most private and salacious pictures and videos online.

While acknowledging his often outrageous self-promotional behavior in the past, Mr. Bollea insisted that he had nothing to do with producing or posting the video — recorded in the home of a Tampa shock-radio host in 2007 — and that its public airing was shocking and disturbing.

“I was concerned that people would think I had something to do with this,” Mr. Bollea told the jury. “I would never do that to my personal life.”


Asked by Mr. Sullivan why he had not insisted that interviewers like Howard Stern refrain from asking him about the video if he was so concerned about its dissemination, Mr. Bollea suggested that he had no power to alter the course of such a conversation.

“I was on an entertainment show: I had to be an entertainer,” Mr. Bollea said, referring to Mr. Stern’s program. “When you’re on his show, you know it’s a character-driven show, so you just roll with it. You have to take the good with the bad.”

Occasionally, the plaintiff bristled — if only slightly — at the lawyer’s questions, as when Mr. Sullivan referred him repeatedly to an 835-page deposition in front of him on the witness stand.

“I’m sorry, buddy,” he said, in a rare departure from protocol. “You need to tell me what line you’re starting on.”

Observed by a large contingent of reporters from around the country, the former wrestler gently rebuffed attempts by Mr. Sullivan to paint him as someone who carelessly and routinely flaunted his sexuality and his conquests, and for whom even the most intimate personal details were fodder for publicity.

Mr. Bollea insisted that any such disclosures in public were purely an act, a crucial component of his character as Hulk Hogan. In that context, he defended radio and television interviews in which he discussed his love life, the size of his penis, and his daughter’s sexuality. Mr. Bollea said also that his descriptions of a love affair in a memoir, and reality-show scenes of him sitting on a toilet, his pants around his ankles, were similarly acceptable when viewed as part of his public persona.

But the defense attorney’s questions seemed to imply that Mr. Bollea’s propensity for such disclosures — which continued after the posting in 2012 of the video at issue — was at odds with his claim that his privacy had been violated by the images taken from a security camera in his friend’s bedroom.

Mr. Bollea resisted that notion. “My problem,” he said, “is with the videotape that you guys put out, that lives forever on the Internet.”

He acknowledged that a celebrity must put up with certain pressures not visited on ordinary mortals. “I’m kind of concerned about Hulk Hogan’s privacy, but you kind of give it away,” he said. “But in the privacy of your own home, no one invades my privacy.”


Under subsequent questioning by one of his attorneys, Kenneth G. Turkel, Mr. Bollea was pressed to speak again of his reaction to the release of the video.

“When the sex tape hit, my whole world turned upside down,” Mr. Bollea said, noting that he could not eat or sleep for days at a time. Later, when he found out that his shock-radio friend, known as Bubba the Love Sponge, had been responsible for filming the encounter, he said, “I was down as far as I could go.”

“It’s not something you can walk away from,” he went on. “It stays with you.”

The camera in the bedroom had been installed by David Rice, the chief engineer on Bubba the Love Sponge’s show, at the request of the radio host. Mr. Rice, whose testimony in a deposition was read aloud to the jury later in the afternoon, said the camera was deliberately set up so that it would operate only if someone slid a disk into the recorder and pushed a button, cementing the plaintiff’s contention that the taping of Mr. Bollea’s sexual encounter had not been an accident.


Another witness on Tuesday was Jules Wortman, a former public relations executive at TNA Impact Wrestling, with which the plaintiff was once affiliated. In videotaped testimony, she described Mr. Bollea as getting “teary” after a “Today” show appearance in which he spoke about the video, and said the host Kathie Lee Gifford commiserated with him in a hallway.

“Kathie Lee was hugging him, and she said, ‘I understand when your private life gets played out in public,’ ” Ms. Wortman recalled. “He was emotional, and he excused himself to go to the bathroom. He was in there for a little while.”
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Re: The Hulk Hogan trial that could redefine freedom of expr

Postby admin » Fri Mar 11, 2016 10:28 am

Hulk Hogan Takes Stand in His Sex-Tape Lawsuit Against Gawker
By NICK MADIGAN
MARCH 7, 2016

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ST. PETERSBURG, Fla. — Taking the stand as the first witness in his $100 million invasion-of-privacy lawsuit against the website Gawker, the former wrestling champion Hulk Hogan told a jury on Monday that he had been “completely humiliated” by the public release of a video that showed him having sex with his now-former best friend’s wife.

The 62-year-old plaintiff — whose real name is Terry Gene Bollea — insisted he was unaware that a camera was recording the encounter, which he said had occurred only because his marriage was falling apart and his friend and his friend’s wife kept insisting that he have sex with her.

“I was depressed,” Mr. Bollea, wearing his trademark black bandanna pulled low over his forehead, told the six-person jury in Pinellas County Circuit Court. “I gave up and gave in. I felt that those people loved me.”


The trial, which is expected to last at least two or three weeks, is the latest prominent legal battle to highlight the murky line between the right to privacy and the right to free speech. Both sides have pointed to potential ramifications of the case: Mr. Bollea’s lawyers cautioned that the privacy of many Americans could be compromised, while Gawker cited the damage a guilty verdict would inflict on long-held freedoms of the press.

In opening arguments, Shane Vogt, a lawyer for the former wrestler, said that Gawker and its editors had deliberately shown his client “naked and exposed to the world” for six months on the site, generating millions of views, despite repeated requests by Mr. Bollea to take the video down. Mr. Vogt said that the situation had caused extreme “emotional distress and harm” to his client, a central point in Mr. Bollea’s pursuit of damages in the case.

“If they had taken down the video,” Mr. Vogt said, “we wouldn’t be here today.”

The 30-minute video, apparently filmed in 2007 and later provided to Gawker, garnered five million page views when it was posted in an abridged version on the site in 2012 and 2.5 million views on other sites that posted it subsequently, Mr. Bollea’s lawyer said. In posting the video, he continued, Gawker allowed the public to watch Mr. Bollea having sex in a private bedroom without his knowledge or consent.

Gawker’s founder, Nick Denton, and its former editor, A. J. Daulerio, who is also named in the suit, “knowingly and maliciously” published what Mr. Vogt called the pornographic images for the sole purpose of financial gain. The posts violated Florida law, he said — specifically a measure that prohibits the publication of private communications without permission — as well as basic human decency.

“They’re going to try to tell you that what they were doing was news,” Mr. Vogt said, in an effort to dismiss a crucial element of the defense’s case: that the activities of well-known people are a subject of public concern. “They crossed the line when they posted this video. It was not newsworthy.”

In his opening statement, a lawyer for the Gawker team, Michael Berry, told the jury that videotapes featuring celebrities like Paris Hilton and Kim Kardashian having sex have become a “cultural phenomenon,” and that such images are of interest to the public and therefore protected by the First Amendment.

Mr. Bollea himself had encouraged and participated in efforts to disseminate facts and commentary about the most intimate details of his life, Mr. Berry said. Describing the former wrestler as “a real American hero” and, when he was younger, “the ultimate object of desire,” Mr. Berry said the plaintiff had been more than willing for years to talk about his sex life, including in two autobiographies, on a reality television series called “Hogan Knows Best” and on Howard Stern’s radio show.

This flow of information about his life was fine, Mr. Berry said, “until he didn’t like what Gawker had to say.’’

Mr. Bollea, who will continue testifying on Tuesday, openly discussed the video at issue in an appearance on a television show run by the website TMZ and said he did not know who the woman with him was because he had been “running wild” with several women at the time, Mr. Berry said, quoting an earlier statement by Mr. Bollea.

In fact, she was Heather Clem, who was then married to Todd Clem, Mr. Bollea’s onetime friend and a radio “shock-jock” whose legal name is Bubba the Love Sponge. The former wrestler also sued the Clems after the tape became public, a case that was settled out of court.

Testimony by Ms. Clem, videotaped in a deposition on Jan. 26, 2015, was shown on screens in the courtroom before Mr. Bollea took the stand.

She said that her husband, from whom she is separated, “could be intimidating and hurtful” and “would berate you until you did what he wanted.”

Although she did not explicitly say so, Ms. Clem seemed to be suggesting that having sex with Mr. Bollea was something her husband had insisted upon. She also said that she played no part in disseminating the video and that she did not discuss with her husband who might have done so.

In his testimony, Mr. Bollea said he had been stunned to learn that the man he considered his best friend, who acknowledged having an “open marriage,” might have used a camera installed in the bedroom to record the sexual encounter. Mr. Bollea said the entire experience was “surreal.”

“Everything had gone to hell in a handbag,” Mr. Bollea said, describing a period in 2012 when the tape became public. “I still held out the hope that he had not done this to me.”

When he learned that his friend’s voice could be heard at the end of the tape suggesting to his wife that they would be able to retire on the money they might make from selling the video, Mr. Bollea said, “my hands just started shaking.”


“He made me believe that he was my best friend and that he would never lie to me,” said Mr. Bollea, who noted that he often had difficulty establishing close friendships.

Under cross-examination, Mr. Bollea acknowledged that when he was “in character” as Hulk Hogan, he would often strike a fictional pose and did not tell the truth, as when he asserted in television and radio interviews in 2012 that he had watched the video on Gawker. He now claims he has never seen it.

“I also said I body-slammed Moby Dick and pulled a bumper off a Cadillac,” he said. “It gives you artistic license to be a jerk.”
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Re: The Hulk Hogan trial that could redefine freedom of expr

Postby admin » Mon Mar 14, 2016 9:46 am

IN THE CIRCUIT COURT SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA

TERRY GENE BOLLEA, professionally known as HULK HOGAN, Plaintiff, vs. HEATHER CLEM; GAWKER MEDIA, LLC, a/k/a GAWKER MEDIA; GAWKER MEDIA GROUP, INC. a/k/a GAWKER MEDIA; GAWKER ENTERTAINMENT, LLC; GAWKER TECHNOLOGY, LLC; GAWKER SALES, LLC; NICK DENTON; A.J. DAULERIO; KATE BENNERT, and BLOGWIRE HUNGARY SZELLEMI ALKOTAST HASZNOSITO KFT a/k/a GAWKER MEDIA, Defendants.

CASE NO.: 12012447 CI-011

PROCEEDINGS: MOTION FOR TEMPORARY INJUNCTION

BEFORE: HONORABLE PAMELA A.M. CAMPBELL

DATE: April 24, 2013

PLACE: St. Petersburg Judicial Building
545 First Avenue North
St. Petersburg, Florida

REPORTED BY: Stacy D. Miller, Court Reporter
Notary Public
State of Florida at Large

APPEARANCES:

ON BEHALF OF THE DEFENDANT:

GREGG D. THOMAS, ESQUIRE
RACHEL FUGATE, ESQUIRE
Thomas & LoCicero
601 S. Boulevard
Tampa, FL 33606
(813)984-3066
gthomas@tlolawfirm.com
rfugate@tlolawfirm.com

ON BEHALF OF THE PLAINTIFF:

CHARLES J. HARDER, ESQUIRE
Harder Mirell & Abrams, LLP
1801 Avenue of the Stars, Suite 1120
Los Angeles, CA 90067
(424)203-1600
charder@hmafirm.com

CHRISTINA K. RAMIREZ, ESQUIRE
Bajo Cuva Cohen & Turkel, P.A.
100 North Tampa Street, Suite 1900
Tampa, FL 33602
(813)443-2199
cramirez@bajocuva.com

P R O C E E D I N G S

THE COURT: We are here on Case Number 12-012447, Terry Gene Bollea vs. Gawker Media and others. Christina Ramirez here representing the plaintiff. Charles Harder here representing the plaintiff, who as been ordered as pro hoc to appear today. Greg Thomas here representing Gawker and Rachel Fugate here representing Gawker.

We're here today for plaintiff's Motion for Temporary Injunction. I have reviewed both the plaintiff's and the defendant's responses that had been filed for this hearing.

First off, I would like to say one initial thing, and that is professionalism, civility, integrity. Anything less will not be tolerated. I would like to remind the parties that when they file pleadings, they are lawyers first. They are officers of the Court first. You write pleadings for legal proceedings, not for tabloid or  sensational effect.

 So, please, the next time any future filings  that are in this court file, please keep that in  mind. I think some of the language that was  used, especially in the response, is offensive. I think that it is unnecessary, that it is more  written for sensational issues. I will remind  you all that you are professionals and lawyers  first above anything else. So please keep that 5 in mind in the future in these kinds of filings.

 All right. So, Mr. Harder, are you making  the argument?

 MR. HARDER: I would like to, Your Honor.

 MR. THOMAS: Go ahead.

 THE COURT: Thank you.

1MR. HARDER: Your Honor, I'm going to try to  avoid repeating anything from the moving papers  because I assume you've read them and you don't  want to hear it again. I have read the response.  I was in route in an airport, and I read it on my  iPhone, but I got a sense of it.

 I did want to address the issue of the  collateral estoppel argument first. There are  several cases that say that a ruling on a  preliminary injunction is not collateral estoppel  because it is not a ruling on the merits of the  case, and it does not stop a second hearing on a  second motion for preliminary injunction.

 I can -- I would cite to the Abbott  Laboratories case, 473 F.3d 1196 from the Federal Circuit, 2007, which says that, "Rulings on  earlier preliminary injunction motions do not  have collateral estoppel effect in subsequent  preliminary injunction proceedings.

 In the 11th Circuit controlling here in  Florida, there's a case called David Vincent,  Inc. vs. Broward County, 200 F.3d 1325, 11th  Circuit, 2000. In that case, the Court held that  findings made on a prior motion for preliminary  injunction proceeding were not binding in 1subsequent proceedings and do not have collateral  estoppel and res judicata effect.

 I'm sure that there are lots more cases out  there. I just saw the opposition yesterday. So  we could provide additional cases.

 I think it's pretty clear that the ruling  that was in the Federal court was not on the  merits. We filed a temporary restraining order  immediately after we had been retained in the  case when this sex tape video was on the  internet. And we immediately filed because we  felt it was an emergency, and we wanted to stop  the spread of that tape. We wanted to put an end  to it right away.

 We filed initial papers. We expected that we would be able to file subsequent papers. We  were denied leave to file additional papers which  had a lot more authority.

 And so it was a hearing that took place very  quickly, and I know that there were other  requests made that were related to that, but that  was the only hearing that was ever -- that has  ever taken place on those issues.

 So we believe that the Federal court did a  rush job on that preliminary injunction motion 1and didn't really give it the full consideration  with all of the cases that we were prepared to  put before the Court. We also think that the  Court got it wrong, and we explained to some  extent why we think that. I'm not going to go  into that because it's in our papers.

 I do want to point out to the Court, Your  Honor, though, because there is this issue of  prior restraint of free speech. I think that's  one of the main arguments that the defendants are  relying upon. They are alleging that what we're  trying do is enjoin prior restraint of free  speech, that this is somehow protected  constitutional speech. And it is not, Your  Honor. The speech that is at issue, which is the sex tape, is not constitutional protected speech.

 There is a case that we came across when we  were doing some research on the opposition. We  came across it yesterday. It happens to be from  the California Supreme Court, but it cites  heavily to the United States Supreme Court. That  case is called Aguilar vs. Avis Rent-A-Car  System, Inc. The citation is 21 Cal.4th 121.  It's from 1999.

 And the -- I'm not going to get into the 1facts too much, but there was an employee at Avis  Rent-A-Car who was being subjected to racial  epithet. And the employee -- his co-worker who  was subjecting him to these, wouldn't stop and  Avis wouldn't put a stop to it. So he filed a  lawsuit and he sought an injunction to stop this  co-worker from using racial epithets towards him.

 The argument from the defense was that this  was an attempt at prior restraint of free speech.  It went all the way up to the California Supreme  Court. The California Supreme Court enjoined  this conduct and said it's not a prior restraint  because it's not constitutionally protected. And  the Court even went into a whole list of the  types of conduct and types of speech that's not constitutionally protected. They had quite a  list in the case, and there is additional case  law, which even adds to that list.

 Unlawful conduct is not constitutionally  protected. The Aguilar case has soliciting a  bribe. That's a crime. You can't protect speech  that's like that. Perjury is another example.  Making a terrorist threat is another example. In  other cases one example is child pornography.  That's not constitutionally protected. You can 1enjoin that in heartbeat. No one is going to say  you can't.

 Well, that's somewhat similar to what we  have here, which is a violation of the video  voyeurism law in Florida where somebody is taped  without their knowledge, without their  permission, in a state of undress. You can't  tape them. It's illegal. And you can't post it.  That's illegal. Illegal conduct. It's  criminally illegal, not just civilly illegal.  You can enjoin conduct that's like that. It  doesn't get constitutional protection.

 And the Supreme Court of California has a  great quote here. It says, "The State may  penalize threats, even those consisting of pure speech. The goal of the First Amendment is to  protect expression that engages in some fashion  in public dialogue, that is communication in  which the participants seek to persuade or are  persuaded, communication which is about changing  or maintaining beliefs, or taking or refusing to  take action on the basis of one's beliefs."

 The Court even goes into slander and  intentional infliction of emotional distress.  And it says to -- as to all of this whole list of 1types of speech, "Types of speech that produce  special harms distinct from their communicative  aspect, such practices are entitled to no  constitutional protection."

 And the Court concludes, "The foregoing high  court decision" -- it's referring to several U.S.  Supreme Court decisions -- "recognize that once a  Court has found the specific pattern of conduct  is unlawful, an injunction order prohibiting the  repetition, perpetuation, or continuation of that  practice is not a prohibited prior restraint of  speech."

 And here, Your Honor, we have a situation,  as you are aware, of one other area that's not  protected is copyright and trademark infringements. Courts are all the time enjoining  copyright infringements and trademark  infringements, particularly in California where  I'm from, where somebody will post either a TV  show or a movie or excerpts from it and the owner  of that will say, wait a second, you have to pay  for that. You have to get a license from me. I  get money when I put that on TV or I put that on  the internet. Courts enjoin that all the time.  Well, that's beyond prior restraint. That's not 1constitutionally protected.

 There is also the case that we cited,  Michaels -- the first Michaels case, Bret  Michaels, where it involved a celebrity sex tape.  The Court enjoined it. The Court said just  because you're a celebrity doesn't mean you gave  up your rights of privacy. In some ways you do,  but not in all ways, not when you're behind  closed doors in a bedroom or another private  place.

 And in preparing for this, Your Honor, I  went on the internet, and I just looked up video  voyeurism in Florida just to see what was --  what's the whole point of the video voyeurism  law. There were some articles about some of the recent prosecutions, and one was a fellow named  Michael Drey, D-R-E-Y. Last year the article  came out in the Orlando Sentinel in September of  last year.

 This was fellow who was an employee at a  Target store. He set up allegedly -- I guess I  have to say allegedly. He set up two cameras in  the changing rooms, filmed what was going on in  the changing rooms.

 And one of the victims, who was 26 years 1old, was mortified that she had changed into a  bikini, had no idea that she was being filmed.  And this individual, Michael Drey, was  prosecuted. He was facing a five-year prison  sentence, according to the article. I don't know  whatever happened to it.

 But it's -- it's -- the courts look at the  balancing of the public interests. And the  balancing of the public interests on the one hand  is the right to be -- have privacy in a private  place. And everybody has that right. Everybody  has that expectation, and they should if we're  going to be a civilized society. You just can't  burst in anywhere or surreptitiously video  someone when you don't have their permission. It's a very substantial interest.

 And the Michaels case talks about the  substantial interest that people have to privacy  in their private homes and private places.

 On the other hand, the counter balance is  the right of people to watch videos that they are  not supposed to watch. Well, there is no right.  There is no such right to watch a video of  somebody in a private bedroom naked or having sex  or in a changing stall when they are putting on a 1bikini. There is no such right.

 Now, the Gawker defendants try to tie in a  newsworthiness to this. They say, well, he's a  celebrity, so therefore, we can talk about it.  Well, the Michaels decision says, no, you  can't. You can't -- you can't just tie in a  newsworthy aspect to something that is a  violation of someone's rights.

 Now, the interesting thing is that in  Michaels, it wasn't a violation of the criminal  statute of video voyeurism. First it was in  California, and here we're in Florida where there  is such a statute. And, second, Pamela Anderson  and Bret Michaels created the film on their own.  The violation was that they created it for their personal usage and not for public usage.

 Here we have a different situation where Mr.  Bollea was filmed without his knowledge and  without his permission in a private place. That  was a violation. And it is equally a violation  to post that. So it's even more of a violation  of his privacy rights and of the law here in  Florida.

 Also, Florida has a two-person -- a statute  that requires two people to consent to the taping 1and recording of someone. That was violated, as  well.

 There is a famous case that involves a  celebrity outside of all of these cases that  we've cited. That's of Erin Andrews. She was an  ESPN reporter who was in a hotel room. A person  rented the hotel room next to her and somehow had  peep holes into her room, and he videoed her in  her hotel room.

 She was mortified, and she suffered extreme  emotional distress. It was a huge news story.  No one doubts that that was a big news story,  that there was a newsworthy aspect to that  incident.

 But that doesn't mean you get -- a news organization gets to post video of Erin Andrews  naked in a hotel room. It's not necessary to  post that to tell the news story. You can still  tell the five Ws of the story, the who, what,  where, when, why, how, without posting the actual  content.

 And here, Gawker defendants stepped over the  line. No one is disputing that they had a right  to write a legitimate news story. Even to have a  picture of Terry Bollea next to the news story 1saying, this is the guy that we're talking about.  You know him as Hulk Hogan.

 And then talking about he had an  extramarital affair. He was in a bedroom. It  was not his bedroom. It was not his wife, et  cetera. A tape was made allegedly. Someone is  trying to shop that tape. You can say all of  that in words. You don't have to post the  content.

 Can you imagine a world where every time  someone was surreptitiously videoed, and if there  was some news aspect of it, they got to post the  content? Erin Andrews or the situation with  Michael Drey at the Target store? Or news flash,  ladies and gentlemen, there is a Peeping Tom in your neighborhood. This is how he operates.  Here is some video that he took. That's crossing  the line.

 They crossed the line. We're asking for an  injunction to stop that. The Courts say you're  entitled to an injunction, a mandatory  injunction. Yes, they posted it up. We're  entitled to an injunction to take it down.

 The case that I was telling you about  earlier, Aguilar, the Supreme Court of California 1said you're entitled to a mandatory injunction  against this co-worker who was using racial  epithets because his speech is not  constitutionally protected and you can stop him.

 I think you need to look no further than the  Gawker story itself where they admit this isn't  about telling the news. They say it's not safe  for work. They say it reduces us all to voyeurs  and deviants. They say you're not supposed to  watch it.

 Well, they are not describing the front page  of the New York Times. The New York Times is  something -- is not something you're not supposed  to watch. It's not something that reduces you to  a voyeur or a deviant if you look at it. It's perfectly safe for work.

 If it was a legitimate news content -- I'm  talking about the sex tape. If that was  legitimate, they wouldn't be saying you're not  supposed to watch it.

 I think it's also telling that no other news  organizations in the world have this sex tape up.  There was one other instance where following  their lead, they posted the same content. And in  a Cease & Desist letter, it was taken down 1immediately.

 No other news organization has posted this  up. Hundreds, if not thousands, have written  about the story of the Hulk Hogan sex tape. It  became big news, but nobody has posted the  contents.

 I reserve for further. Thank you, Your  Honor.

 THE COURT: All right. Mr. Thomas.

 MR. THOMAS: Your Honor, can I approach?

 THE COURT: Yes.

 MR. THOMAS: Your Honor, there's a chart we  would like to talk to you about. Your Honor, I  would like for you to think for a second about  the reverse of what happened in this case. Let's assume Mr. Bollea comes to you firsthand and he  presents these arguments. Your Honor spends a  consider amount of judicial labor on those  arguments.

 And this is the same thing, Your Honor.  Mr. Hogan chose the court of first resort.  Didn't come to this court first. He came to the  United States District Court in Tampa, Florida  and filed this claim. He chose it. We didn't.

 He files a Motion for Temporary Restraining Order and Preliminary Injunction. The Court,  seven days later, denies the temporary  restraining order, but says you're going to have  your day in court. You're going to have a  hearing. You take as much time as you want.

 I argued. Ms. Ramirez's partner,  Mr. Turkel, argued. We were there for an hour  and a half. There is a lengthy transcript of  that hearing in Tampa, Your Honor.

 The Judge -- the same day we had that  hearing, they file an Amended Complaint that adds  a copyright claim. Copyright, as Mr. Harder  says, is exactly right. Copyright gives you an  entitlement to an injunction if you satisfy the  other criteria. So Judge Whittemore after that hearing,  three weeks, issues -- denies the preliminary  injunction. Lengthy order. We have a copy of it  right here for Your Honor.

 THE COURT: I have a copy. Thank you. I  have two copies, in fact, that were attached  to -- I believe it was Ms. Fugate's declaration,  and there was a copy of the Order dated  November 14, 2012. There is also an Order that  is dated December 21, 2012.

MR. THOMAS: Exactly, Your Honor. That  first Order is the Order -- the key Order about  the preliminary injunction. The Court spends a  considerable amount of time analyzing the four  criteria, talking about prior restraint, makes  the determination that it is a prior restraint to  enjoin this, looks at the four criteria that are  necessary for an injunction and makes a ruling.

 But then the Court goes on -- well, the next  day, Your Honor, the 15th, they appeal to the  11th Circuit Court of Appeals. They are on their  way to the 11th Circuit to the get relief there.

 And they come back to Judge Whittemore and  they say, "You need to stay this while we  consider the 11th Circuit Order." The Judge looks at that and he denies it.

 They file a motion, the same sort of motion,  in the 11th Circuit, and the 11th Circuit never  gets there. The Court then -- they file a  next -- a second Motion for Preliminary  Injunction, Your Honor, on the copyright claim.

 Then, again, Judge Whittemore denotes --  devotes judicial labor to that claim and, again,  denies the preliminary injunction.

 So they've had three bites at the apple; 1temporary restraining order, preliminary  injunction on the first claim, and preliminary  injunction on the second claim. So to say that  the Court in Tampa did not devote sufficient  labor to this matter, Your Honor, that's what  Judges like Your Honor do. You consider the  matter and you rule. Here, Judge Whittemore did  exactly that. He made a ruling.

 At some point they decide to abandon that  claim. They dismiss in trial court exactly the  same claims Your Honor is presented with today;  intrusion, private facts, video voyeurism, all  the same claims.

 And I would ask Mr. Harder to tell you on  rebuttal what's changed since then. You know, you can have a second injunction if the facts and  circumstances have changed.

 Your Honor, the collateral estoppel rule is  clear. You can't form shop. That's exactly  what's happening here. Considerable judicial  labor there followed by decisions on the merits.

 Your Honor, if we look at the -- what the --  what the standard is adopted by Florida and  Federal courts, if it's a Federal decision, the  Federal rules apply, will estoppel apply? 1Florida courts agree with that.

 The criteria are the issue the stake is  identical to the one involved in the prior  proceeding. The issues are identical, Your  Honor. The Complaint doesn't really change  between State court and Federal court.

 The issue was actually litigated in a prior  proceeding. Not only litigated, but we have a  decision. We have adjudication on the merits.

 The determination of the issue in prior  litigation had a critical and necessary part of  the judgment in the first action. That's exactly  what happened here. Judge Whittemore looked at  it and made a decision.

 The party against whom the collateral estoppel is asserted had a full and fair  opportunity for a hearing. Your Honor, fully  briefed, fully argued. A decision made by Judge  Whittemore.

 Your Honor, if we look at the merits, and we  really can look to what Judge Whittemore said  about prior restraints, since 1789, we've had a  non-English interpretation of the way the speech  works. If I said something in England, I would  be stopped and not allowed to proceed and then 1we'd have a trial.

 In the United States, it's just the reverse.  It's publish first, punish later. That's the  rule about speech. We're not saying that Mr.  Bollea may at some time in a trial be able to  recover damages for any loss that he suffered.  And we're not saying that at a subsequent point  Your Honor can't enjoin it, but not at this  status of the proceedings, Your Honor.

 Since 1789, we've had a Constitution that  honors speech. And I'm the last person here,  Your Honor, to tell you that this is the speech  of the highest quality or tenor, but the cases  seem to say Your Honor can't make that judgment.  You can't --

THE COURT: Let me ask you this. I'm sorry  for interrupting, but directly on that point.  This is the part that was irritating to me in the  lawyers' pleading, where they are describing  comments that are made allegedly during this  tape.

 So is that the speech that you are trying to  protect? The speech that was made during the  scope of this videotape between these two  consenting adults having sex in a private setting 1with allegedly no notice to the plaintiff? I'm  not sure what speech you're trying to protect.

 MR. THOMAS: Your Honor, I'm trying to  protect multiple parts of speech. The first part  is the printed version of the story. This is not  a sex tape by itself, Your Honor. There is a  printed version like in the Michaels case and a  sex tape that goes with it. It's not a sex tape  alone. Yes, Your Honor, I'm trying to protect  that speech. I'm also trying to protect the  speech that's there.

 THE COURT: How does that butt up against  the Florida Constitution, Article I, Section 23,  a right to privacy?

 MR. THOMAS: Well, Your Honor, I think Federalism would mandate that Article I, Section of the Florida Constitution is equally  significant. Your Honor, we're talking about the  First Amendment and Article I, Section 4.

 THE COURT: I'm thinking this injunction is  only about the tape.

 MR. THOMAS: Yes, Your Honor. I understand  that. But I also think, Your Honor, when we  think of the history of the First Amendment, we  think of the Pentagon papers, maybe because I'm a First Amendment lawyer.

 There a top secret document that was clearly  stolen that could have injured men in war in  Vietnam was considered by the United States  Supreme Court. And they said we're not going to  stop its publication. The analogy perhaps is not  appropriate.

 THE COURT: It doesn't even have any -- it's  apples and oranges, worse than that actually.

 MR. THOMAS: Well, Your Honor, I don't think  I'm out of order when I say speech is speech.  Your Honor is not permitted to make an editorial  judgment about which speech is permissible and  which speech is not permissible.

 THE COURT: I'm only talking about the tape.

MR. THOMAS: Your Honor, I'm talking about  the tape, too. Your Honor, I don't know if  you've taken the time to look at the tape.

 THE COURT: No. I'm not going to look at  the tape. I don't think at this point in time I  need to look at the tape.

 But I will tell you that I had case not too  recently that had to do with a man here in town  that was allegedly hiring bikini-clad women to go  beat up homeless men, and they were recording 1these sessions, and the men allegedly would  receive $50 at the end of 12 minutes.

 Well, it was a crime in beating up these  disabled people, so the man went to jail. The  case ultimately resolved, but there were  injunctions. He couldn't be posting those. He  was selling those videotapes. He couldn't be  selling those videotapes of this crime that was  occurring in his garage. And I liken that  similar to something that's here.

 MR. THOMAS: Your Honor, the Michaels case  that's talked about by Plaintiff, a sex tape  created and copyrighted, and then Michaels was  about the sale of that videotape. The Michaels  case comes along, it's a hard copy, which is a news television program, has a section of the  same videotape and text and discussion of the  videotape.

 And the Court, Federal Court, contrary to  Michaels 1, says that's permissible when you --  when you put speech together with writing, as in  the hard copy case and in this case. Your Honor,  there is a lengthy article about this that  appears in Gawker.

 Your Honor, the tape, as I understand it, is 101 seconds long --

THE COURT: That's what your motion says.  MR. THOMAS: -- out of 30 minutes. And in  that are about nine seconds of something that  could be deemed sexual conduct. Your Honor, I  think as Judge Whittemore said, that sort of  speech in our Constitution is entitled  protection.

 Mr. Bollea says he wants $100 million. In  our system, that's what you do. You litigate the  merits. And a jury in this courtroom can make  that, and that could remedy the wrong here, Your  Honor. The Constitution and prior restraint  simply does not permit Your Honor to do that.

 And here, given the fact that another Federal Judge -- or a Federal Judge has looked at  exactly the same issues and made a determination,  Your Honor, I think -- does everybody get a  second bite at the apple? I don't think so. I  think Your Honor would be -- what's the purpose  of us having a hearing here today if tomorrow we  could go into Federal court and raise the same  issues?

 THE COURT: Well, you know, this same case  was filed here on October 15, 2012. So it was filed.

 MR. THOMAS: Not with these defendants, Your  Honor.

 THE COURT: I don't know. There was a case  that was filed here with this same case number on  October 15, 2012. I'm not sure who were the  parties.

 MR. THOMAS: Not with these parties, Your  Honor, not with the Gawker defendants. The  Gawker defendants in Federal court, adjudicated  in Federal court. After they dismissed the case  in Federal court, Your Honor, they amended the  Complaint, I think, in December 25.

 THE COURT: It was filed December 28.

 MR. THOMAS: 28. Yeah. So adjudicated, lost, dismissed, amended here and came to Your  Honor.

 Your Honor, the principals of comity where  you give deference to other judicial labors I  think is critical here, Your Honor. The waste of  time and effort by Judge Whittemore would be  wasted. So do we all get two shots at the apple?

 Your Honor, I think when you consider the  elements, the four elements required for  injunctive relief, is this newsworthy? Hulk Hogan, Your Honor, I think we've mentioned, has  written books about his exploits. He is a major,  major person. When he does things, he writes  about it. When he divorced his wife, he wrote  about it. When he did other things, he wrote  about it.

 And now when something is intensely  embarrassing, does he get to shut the spicket on  news about that matter, that he has an affair  with his best friend's wife in the presence of  the same person? Your Honor, I think if he opens  the spicket in circumstances like this, he can't  close it as easily.

 Your Honor, we think you should deny the  Motion for Preliminary Injunction.

THE COURT: All right. Thank you.  Response, Mr. Harder?

 MR. HARDER: Thank you, Your Honor. Just  briefly. Judge, as I said before, Judge  Whittemore's ruling was not on the merits. And  Mr. Thomas says that you can't go into one court  and ask for injunction and go to another court  and ask for injunction. That's not true.

 I've cited to you cases where someone did go  into one court, was denied an injunction in State 1court, went to Federal court, and the Court did  not deny it based on collateral estoppel. The  Court in the second case did a full hearing. And  that's all we're asking for here, Your Honor, is  to -- just to be heard.

 What Judge Whittemore did is not a waste in  any sense because he wrote up an Order. And that  Order has case citations and an explanation as to  how he viewed the case and how he viewed the  issues.

 That doesn't mean that you have to be a  rubber stamp, Your Honor. You, as you are fully  aware, I'm sure, can make your own decisions, and  we assume that you will do so.

 Collateral estoppel, however, does not apply here. You are not forced to adopt Judge  Whittemore's ruling. You can rule how you see  fit.

 It's true that we can seek damages, and we  are seeking damages, but that's not what an  injunction is about. An injunction is about  putting a stop to wrongful, illegal criminal  conduct that is taking place today. A criminal  conduct that we're here about is occurring right  now at Gawker.com, this web page, where they will 1not take this video down.

 Just to clarify, it's about the video, and  it's about the quotations from that video that  are in print. If you're not supposed to ever  tape someone behind closed doors, you're also --  you shouldn't be quoting from what people are  saying or the descriptions of what so and so  looked like and that so and so's genitals were as  X, Y, Z, and I'm going to stop there. That's  what is on the website. They go into great  length about describing things.

 From our viewpoint, the description should  be taken down, the quotation should be taken  down, and definitely the video should be taken  down.

They talk about 101 seconds isn't very much  because the video is 30 minutes long supposedly,  although no one has ever seen the full 30  minutes.

 Let's say their encounter lasted three days.  Let's say it was a long weekend. Does that mean  you can have 30 minutes because the percentage is  small?

 101 seconds is a great deal of time when  you're looking at the types of things that we're 1looking at. There was oral sex. There's  intercourse. There's all kinds of -- there's  changing of positions. There's climaxing, excuse  me, Your Honor. There's all kind of things  within that 101 seconds.

 It's a highlight reel is what it is. They  make it sound like it's minor portions of the  video. It's a highlight reel. It's ladies and  gentlemen, this is all you ever need to see.  We've cut it all down to the best stuff.

 They're making money off of this. That's  why they are doing it. The owner of their  company -- we've provided the blog entries that  he wrote. He brags. He brags about how they  made 100 million views because people are going to watch the sex tape. Well, now it's up to  4 million because so much time has elapsed. It's  still about 5,000 people going every single week  to take a look at this.

 My clients can't move past this. That's why  they've asked me to continue this endeavor  because they can't move past this with their  lives as long as that tape is still showing Mr.  Bollea having sex with somebody and people are  still going to see it, and they comment about, 1oh, I just saw it, on Twitter and in interviews  and various other places. Once this thing is  down, they will begin the process of moving past  it, but they can't do that.

 And they've provided affidavits, Your Honor,  and you can read them. I don't want to put words  in their mouths, but I think that they are  articulate in how they describe what they're  having to go through and still having to go  through. That's why we're seeking the  injunction. If you have any questions, Your  Honor, I'm happy to address them.

 THE COURT: All right. Thank you.

 MR. THOMAS: Your Honor, briefly can I  respond?

THE COURT: Well, typically you have the  movant, the response, and the rebuttal, and  that's it. Is there something that you feel  really pressing that's also not in your papers?

 MR. THOMAS: Your Honor, just the video  voyeurism claim. It's not a private cause of  action in Florida. It's not permissible to bring  it as a private cause of action. In the Barnicki  (phonetic) case from the United States Supreme  Court --

1THE COURT: That was in his initial part.

 MR. THOMAS: Yes, Your Honor.

 THE COURT: Thank you. All right. The  Court is going to grant the temporary injunction,  finding that plaintiff will suffer irreparable  harm. There is no adequate remedy of law, the  likelihood of success on the merits, and that  public interest will definitely be served by  granting this public and temporary injunction.

 I'm ordering that the Gawker.com remove the  sex tape and all portions and content therein  from their websites, including Gawker.com.  Ordering to remove the written narrative  describing the private sexual encounter,  including the quotations from the private sexual encounter from websites and including Gawker.com.

 I would like to comment that -- perhaps  comments on the news aspect of it, I'm not  addressing the news aspect of it or the book that  Mr. Bollea wrote or any of those other aspects.  Simply the language that describes what's on the  tape, the tape itself, and the exact quotations  that are entailed during the course of the tape.

 I have more to go. Did you have a question?

 MR. THOMAS: Your Honor, I'm sorry. I'm 1just trying to be professional and stand when I'm  talking, but I'll wait until you finish.

 THE COURT: I didn't know if you had a  specific point on that particular issue.

 MR. THOMAS: No, Your Honor.

 THE COURT: Okay. Also enjoined from  posting, publishing, exhibiting, or broadcasting  the full length video recording, any portions,  clips, still images, audio, or transcripts of the  video recording.

 And ordering the turn over to Mr. Bollea's  attorneys all copies of the full length video  recording, any portions of any clips, still  images, audio, or transcripts of that video  recording; and that turn over is to be accomplished within the next 10 business days.  No bond will be required.

 And so, Mr. Thomas, did you want a  clarification?

 MR. THOMAS: Your Honor, they say that we've  made millions off of this, but you're not going  to require a bond?

 THE COURT: I think that it was really -- in  the paper there's millions that have been  watching it. I don't know how much money has been made on it.

 MR. THOMAS: But, Your Honor, you have to  protect us if the injunction is improperly  entered so that there is bond money there. I  mean, a bond -- if we're making millions off this  and you take it down, shouldn't we have some  monetary bond?

 MR. HARDER: Your Honor, we never said they  made millions of dollars. The quote is from Nick  Denton saying a million people have watched --  have gone to Gawker.com.

 THE COURT: Yeah, now 4.9 some million  people.

 MR. THOMAS: So, Your Honor, if you can  monetize it at . a piece, that's still a significant amount of money.

 THE COURT: I'm not going to require a bond.  Did you have anything else?

 MR. THOMAS: Yes, Your Honor. Can we have a  stay pending our time to go to the 2nd DCA to  seek appellate review of your decision?

 THE COURT: Do you know of any authority  that requires me to stay it?

 MR. THOMAS: No, Your Honor.

 THE COURT: Okay. No. Denied. Stay is denied.

 So, Mr. Harder, would you please prepare  that Order for me and send it to me. Do you know  how long it will take you to prepare that?

 MR. HARDER: I would expect that we would  get that in to you hopefully tomorrow or the next  day, as soon as we possibly can.

 THE COURT: Okay. Thank you. Anything else  for today?

 MR. THOMAS: Thank you, Your Honor.  

THE COURT: All right. Thank you very much.

 (Thereupon, a discussion was held off the  record.)

 THE COURT: Additionally on the record, Mr.  Keith Thomas had called our office, was not able to be here today. He represents Ms. Clem and has  no objection to the entry of an injunction. Thank you.

 (Thereupon, the proceedings were concluded.)

CERTIFICATE OF REPORTER

 STATE OF FLORIDA

COUNTY OF PASCO

 I, Stacy D. Miller, Court Reporter, certify that  I was authorized to and did stenographically report  the foregoing proceedings and that the transcript is a  true record thereof.

 I further certify that I am not a relative, employee, attorney, or counsel of any of the parties,  nor am I a relative or employee of any of the parties'  attorneys or counsel connected with the action, nor am  I financially interested in the action.

 DATED this 24 day of April, 2013.

 _______________________________
 STACY D. MILLER, Court Reporter  
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Re: The Hulk Hogan trial that could redefine freedom of expr

Postby admin » Mon Mar 14, 2016 10:02 am

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT

GAWKER MEDIA, LLC a/k/a Gawker Media, Appellant, v. TERRY GENE BOLLEA, professionally known as Hulk Hogan; HEATHER CLEM; GAWKER MEDIA GROUP, INC. a/k/a Gawker Media; GAWKER ENTERTAINMENT, LLC; GAWKER TECHNOLOGY, LLC; GAWKER SALES, LLC; NICK DENTON; A.J. DAULERIO; KATE BENNERT; and BLOGWIRE HUNGARY SZELLEMI ALKOTAST HASZNOSITO KFT a/k/a Gawker Media, Appellees.

Case No. 2D13-1951

Opinion filed January 17, 2014.

Appeal pursuant to Fla. R. App. 9.130 from the Circuit Court for Pinellas County; Pamela A.M. Campbell, Judge.


Gregg D. Thomas and Rachel E. Fugate of Thomas & LoCicero PL, Tampa; and Seth D. Berlin and Paul J. Safier of Levine Sullivan Koch & Schulz, LLP, Washington, DC, for Appellant.

Charles J. Harder of Harder Mirell & Abrams LLP; Kenneth G. Turkel and Christina K. Ramirez of Bajo Cuva Cohen & Turkel, P.A.; and David R. Houston of Law Office of David R. Houston, Reno, Nevada, for Appellee Terry Gene Bollea.

No appearance for remaining Appellees.

BLACK, Judge.

Terry Bollea sought to enjoin Gawker Media, LLC, from publishing and otherwise distributing the written report about his extramarital affair that includes video excerpts from the sexual encounter. The circuit court granted Mr. Bollea's motion for temporary injunction, though it did not articulate the reasons for doing so. On appeal, Gawker Media challenges the circuit court's order, asserting that Mr. Bollea is collaterally estopped from seeking the same relief previously sought and decisively denied in federal court, and should the doctrine of collateral estoppel be inapplicable, that such relief is an unconstitutional prior restraint. Because the temporary injunction is an unconstitutional prior restraint under the First Amendment, we reverse.

I. Background

In 2006, Mr. Bollea engaged in extramarital sexual relations with a woman in her home. Allegedly without Mr. Bollea's consent or knowledge, the sexual encounter was videotaped. On or about October 4, 2012, Gawker Media posted a written report about the extramarital affair on its website, including excerpts of the videotaped sexual encounter ("Sex Tape"). Mr. Bollea maintains that he never consented to the Sex Tape's release or publication. Gawker Media maintains that it was not responsible for creating the Sex Tape and that it received a copy of the Sex Tape from an anonymous source for no compensation.

On October 15, 2012, Mr. Bollea initiated an action in federal court by filing a multicount complaint against Gawker Media and others, asserting claims for invasion of privacy, publication of private facts, violation of the right of publicity, and infliction of emotional distress. See Bollea v. Gawker Media, LLC, No. 8:12-cv-02348-T-27TBM, 2012 WL 5509624, at *2 (M.D. Fla. Nov. 14, 2012) (Bollea I). Additionally, on October 16, 2012, Mr. Bollea filed a motion for preliminary injunction, seeking to enjoin the named defendants from publishing any portion of or any content from the Sex Tape. Following a hearing, the federal court issued an order on November 14, 2012, denying the motion for preliminary injunction. See id. at *3-5. The court found that the requested preliminary injunction would be an unconstitutional prior restraint under the First Amendment and that notwithstanding the First Amendment issue, Mr. Bollea otherwise failed to demonstrate that he was entitled to a preliminary injunction under the applicable injunction standard. Id. at *3-4.

On December 28, 2012, Mr. Bollea voluntarily dismissed the federal action. That same day, Mr. Bollea filed an amended complaint in state circuit court, asserting essentially the same claims that he asserted in federal court. Thereafter and as he did in federal court, Mr. Bollea filed a motion for temporary injunction seeking to enjoin Gawker Media and others not participating in this appeal [1] from publishing and otherwise distributing the video excerpts from the sexual encounter and complementary written report. Following a hearing, the circuit court issued an order on April 25, 2012, granting the motion for temporary injunction. The court did not make any findings at the hearing or in its written order to support its decision. [2] On May 15, 2013, this court stayed the order granting the motion for temporary injunction pending the resolution of this appeal.

II. Applicable Standards

"The primary purpose of a temporary injunction is to preserve the status quo while the merits of the underlying dispute are litigated." Manatee Cnty. v. 1187 Upper James of Fla., LLC, 104 So. 3d 1118, 1121 (Fla. 2d DCA 2012). In the context of the media, "the status quo . . . is to publish news promptly that editors decide to publish. A restraining order disturbs the status quo and impinges on the exercise of editorial discretion." In re Providence Journal Co., 820 F.2d 1342, 1351 (1st Cir. 1986), modified on other grounds on reh'g by 820 F.2d 1354 (1st Cir.), cert. dismissed, United States v. Providence Journal Co., 485 U.S. 693 (1988). A temporary injunction is an "extraordinary remedy" that should be granted "sparingly and only after the moving party has alleged and proved facts entitling [him] to relief." Liberty Fin. Mortg. Corp. v. Clampitt, 667 So. 2d 880, 881 (Fla. 2d DCA 1996) (citations omitted).

A temporary injunction aimed at speech, as it is here, "is a classic example of prior restraint on speech triggering First Amendment concerns," Vrasic v. Leibel, 106 So. 3d 485, 486 (Fla. 4th DCA 2013), and as such, it is prohibited in all but the most exceptional cases, Near v. Minn. ex rel. Olson, 283 U.S. 697, 716 (1931). Since "prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights," the moving party bears the "heavy burden" of establishing that there are no less extreme measures available to "mitigate the effects of the unrestrained . . . public[ation]" and that the restraint will indeed effectively accomplish its purpose. Neb. Press Ass'n v. Stuart, 427 U.S. 539, 558-59, 562 (1976). Furthermore, "[w]here . . . a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment." Neb. Press Ass'n v. Stuart, 423 U.S. 1327, 1329 (Blackmun, Circuit Justice, 1975). [3]

We generally review orders granting temporary injunctions for an abuse of discretion. Forrest v. Citi Residential Lending, Inc., 73 So. 3d 269, 275 (Fla. 2d DCA 2011). However, "[w]e apply a de novo standard of review to the determination of whether a temporary injunction constitutes an unconstitutional prior restraint on free speech." Id. (citation omitted). And though an injunction order generally comes to this court clothed with a presumption of correctness, orders restraining "protected speech must be considered presumptively invalid" and will only be permitted if there are no less restrictive means available. Romero v. Erik G. Abrahamson, P.A., 113 So. 3d 870, 872 (Fla. 2d DCA 2012); accord N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971).

III. First Amendment

It is not clear from the hearing transcript, and certainly not from the order, why the circuit court granted the motion for temporary injunction. Based upon the few interjections the court made during the hearing, it appears that the court believed Mr. Bollea's right to privacy was insurmountable and that publishing the content at issue was otherwise impermissible because it was founded upon illegal actions.

A. Privacy

"[W]here matters of purely private significance are at issue, First Amendment protections are often less rigorous." Snyder v. Phelps, 131 S. Ct. 1207, 1215 (2011) (citing Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988)). On the other hand, " '[s]peech on "matters of public concern" . . . is "at the heart of the First Amendment's protection." ' " Id. (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758-59 (1985) (plurality opinion)).

Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public. The arguably inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.


Id. at 1216 (citations omitted) (internal quotation marks omitted).

Mr. Bollea, better known by his ring name Hulk Hogan, enjoyed the spotlight as a professional wrestler, and he and his family were depicted in a reality television show detailing their personal lives. Mr. Bollea openly discussed an affair he had while married to Linda Bollea in his published autobiography
[4] and otherwise discussed his family, marriage, and sex life through various media outlets. Further, prior to the publication at issue in this appeal, there were numerous reports by various media outlets regarding the existence and dissemination of the Sex Tape, some including still shots therefrom. Despite Mr. Bollea's public persona, we do not suggest that every aspect of his private life is a subject of public concern. See generally Post-Newsweek Stations Orlando, Inc. v. Guetzloe, 968 So. 2d 608, 612 (Fla. 5th DCA 2007) (noting that appellant's status as a public figure does not mean that every aspect of his private life is of public concern but nonetheless holding that enjoining the broadcaster from publicly airing appellant's personal records and those of his family operated as an unconstitutional prior restraint under the First Amendment). However, the mere fact that the publication contains arguably inappropriate and otherwise sexually explicit content does not remove it from the realm of legitimate public interest. See Snyder, 131 S. Ct. at 1217; see also Fla. Star v. B.J.F., 491 U.S. 524, 525 (1989) (holding that a news article about a rape was a matter of public concern and that the newspaper was not liable for the publication of the victim's identity obtained from a police report released by law enforcement in violation of a Florida statute); Cape Publ'ns, Inc. v. Hitchner, 549 So. 2d 1374, 1377 (Fla. 1989) (holding that confidential information regarding a child abuse trial was a matter of legitimate public concern and that thus the newspaper's publication of such did not violate privacy interests). It is clear that as a result of the public controversy surrounding the affair and the Sex Tape, exacerbated in part by Mr. Bollea himself, [5] the report and the related video excerpts address matters of public concern. See Bartnicki v. Vopper, 532 U.S. 514, 534 (2001) ("[P]rivacy concerns give way when balanced against the interest in publishing matters of public importance. . . . One of the costs associated with participation in public affairs is an attendant loss of privacy."); Michaels v. Internet Entm't Grp., Inc., No. CV 98-0583 DDP (CWx), 1998 WL 882848, at *10 (C.D. Cal. Sept. 11, 1998) (Michaels II) ("[T]he private facts depicted in the [publication] ha[d] a substantial nexus to a matter of legitimate public interest," namely, a dispute over the dissemination of the sex tape, and the depiction of the sexual relations was "clearly part of the story."); see also Jones v. Turner, No. 94 Civ. 8603 (PKL), 1995 WL 106111, at *21 (S.D.N.Y. Feb. 7, 1995) (holding that the preliminary injunction was unjustifiable where nude pictures were related to the accompanying article and the article itself was a matter of public concern). But see City of San Diego, Cal. v. Roe, 543 U.S. 77, 84 (2004) (holding that the sexually explicit acts of the government employee, depicted in a video, did not address a matter of public concern where the acts "did nothing to inform the public about any aspect of the [employing agency's] functioning or operation"); Toffoloni v. LFP Publ'g Grp., LLC, 572 F.3d 1201, 1213 (11th Cir. 2009) (holding that the publication of nude photographs of a female professional wrestler taken twenty years prior was not protected speech because their publication was not related to the content of the reporting, namely, her murder).

In support of his contention that the report and video excerpts do not qualify as matters of public concern, Mr. Bollea relies on Michaels v. Internet Entertainment Group, Inc., 5 F. Supp. 2d 823 (C.D. Cal. 1998) (Michaels I), in which the court enjoined the commercial distribution of an entire sex tape that infringed the plaintiffs' copyrights. However, the court in Michaels I found the use of the sex tape to be purely commercial in nature. Specifically, the copyrighted tape was sold via the internet to paying subscribers, and the internet company displayed short segments of the tape as a means of advertisement to increase the number of subscriptions. Id. at 835. In contrast, Gawker Media has not attempted to sell the Sex Tape or any of the material creating the instant controversy, for that matter. [6] Rather, Gawker Media reported on Mr. Bollea's extramarital affair and complementary thereto posted excerpts from the video.

The court in Michaels I pointed out that although "[t]he plaintiffs are entitled to an injunction against uses of their names or likenesses to sell the [sex tape,] [t]he injunction may not reach the use of their names or likenesses to report or comment on matters of public interest." Id. at 838. In accord with this conclusion, the court held in the companion case that the publication of a news report and brief excerpts of the sex tape was not an invasion of privacy and was protected speech. Michaels II, 1998 WL 882848, at *7, *10 (distinguishing the dissemination of an entire sex tape with the use of excerpts from the tape); see also Bollea v. Gawker Media, LLC, 913 F. Supp. 2d 1325, 1331 n.6 (M.D. Fla. 2012) (Bollea II) ("[Gawker Media] did not simply post the entire [Sex Tape]—or substantial portions thereof, but rather posted a carefully edited excerpt consisting of less than two minutes of the thirty[-]minute video of which less than ten seconds depicted explicit sexual activity."). Here, the written report and video excerpts are linked to a matter of public concern—Mr. Bollea's extramarital affair and the video evidence of such—as there was ongoing public discussion about the affair and the Sex Tape, including by Mr. Bollea himself. Therefore, Mr. Bollea failed to meet the heavy burden to overcome the presumption that the temporary injunction is invalid as an unconstitutional prior restraint under the First Amendment. As such, it was within Gawker Media's editorial discretion to publish the written report and video excerpts. See Providence Journal, 820 F.2d at 1351; see also Doe v. Sarasota-Bradenton Fla. Television Co., 436 So. 2d 328, 331 (Fla. 2d DCA 1983) (noting that it is the primary function of the publisher to determine what is newsworthy and that the court should generally not substitute its judgment for that of the publisher).

B. Unlawful Interception

It appears that the circuit court may have been convinced by Mr. Bollea's argument that the speech at issue is not entitled to First Amendment protection because the Sex Tape was created in violation of the law. [7] However, there is no dispute that Gawker Media was not responsible for the creation of the Sex Tape. Nor has Mr. Bollea alleged that Gawker Media otherwise obtained it unlawfully. The Supreme Court in Bartnicki held that if a publisher lawfully obtains the information in question, the speech is protected by the First Amendment provided it is a matter of public concern, even if the source recorded it unlawfully. Bartnicki, 532 U.S. at 535; see also CBS Inc. v. Davis, 510 U.S. 1315, 1318 (Blackmun, Circuit Justice, 1994) ("Nor is the prior restraint doctrine inapplicable because the videotape was obtained through the 'calculated misdeeds' of CBS."); N.Y. Times Co. v. United States, 403 U.S. 713 (1971) (holding that notwithstanding the fact that a third party had stolen the information, the press had a constitutional right to publish the Pentagon Papers because they were of public concern). As the speech in question here is indeed a matter of legitimate public concern, the holding in Bartnicki applies. [8] As such, the temporary injunction acts as an unconstitutional prior restraint on Gawker Media's protected speech.

IV. Collateral Estoppel

Gawker Media asserts that the circuit court's order granting Mr. Bollea's motion for temporary injunction is barred by the doctrine of collateral estoppel because the same issue was decisively adjudicated in the Middle District of Florida on Mr. Bollea's motion for preliminary injunction. Collateral estoppel, referred to as issue preclusion in the federal courts, is a judicial doctrine that prevents relitigation of an issue that has been previously adjudicated. Sea Quest Int'l, Inc. v. Trident Shipworks, Inc., 958 So. 2d 1115, 1120 (Fla. 2d DCA 2007). Since the pertinent prior decision was issued by the federal court, the federal rules of preclusion apply. See id. at 1119. Thus, this court must follow the "analysis the federal courts would apply with respect to issue preclusion," the effect of which is to "assume hypothetically" that Mr. Bollea refiled his motion in federal court. See Amador v. Fla. Bd. of Regents ex rel. Fla. Int'l Univ., 830 So. 2d 120, 122 (Fla. 3d DCA 2002).

Whether or not collateral estoppel applies depends on whether the federal court's order denying Mr. Bollea's motion for a preliminary injunction constitutes judicial finality. See Christo v. Padgett, 223 F.3d 1324, 1339 (11th Cir. 2000) ("It is widely recognized that the finality requirement is less stringent for issue preclusion than for claim preclusion."); see also Miller Brewing Co. v. Jos. Schlitz Brewing Co., 605 F.2d 990, 995 (7th Cir. 1979) (stating that an interlocutory decision "will be given preclusive effect if it is necessarily based upon a determination that constitutes an insuperable obstacle to the plaintiff's success on the merits"). " '[F]or purposes of issue preclusion . . . , "final judgment" includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect.' " Christo, 223 F.3d at 1339 n.47 (quoting Restatement (Second) Judgments § 13 (1980)). Whether the resolution in the first proceeding is sufficiently firm to merit preclusive effect turns on a variety of factors:

"To claim the benefit of collateral estoppel the party relying on the doctrine must show that: (1) the issue at stake is identical to the one involved in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the determination of the issue in the prior litigation must have been 'a critical and necessary part' of the judgment in the first action; and (4) the party against whom collateral estoppel is asserted must have had a full and fair opportunity to litigate the issue in the prior proceeding."


Id. (quoting Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1359 (11th Cir. 1998)). Gawker Media contends that all four prongs have been satisfied and that the federal court's prior ruling is a final judgment on the merits of the issues presented by the preliminary injunction itself. [9]

This court has not addressed this exact collateral estoppel issue, nor has the Eleventh Circuit Court of Appeals. [10] And though Gawker Media's arguments are persuasive, we are not convinced that a ruling at such a provisional stage in the proceedings should have preclusive effect. The United States Court of Appeals for the Federal Circuit held "that decisions granting or denying preliminary injunctions may be sufficiently final to be given preclusive effect," but the court further held that in order for decisions to have such effect, they must be "based upon a determination that constitutes an 'insuperable obstacle' to the plaintiff's success on the merits." Abbott Labs. v. Andrx Pharm., Inc., 473 F.3d 1196, 1205 (Fed. Cir. 2007) (citations omitted). Said "insuperable obstacle" only exists where the prior decision is based on a decisive determination and not on the mere likelihood of success. Id. at 1206. In this case, the federal court did not draw any decisive conclusions on the merits, nor did the federal court even address the likelihood of success thereon; rather, the federal court found that Mr. Bollea was not entitled to injunctive relief at a preliminary stage in the proceedings. See Bollea I, 2012 WL 5509624, at *2-5. And though the federal court's order is unquestionably persuasive, based on the foregoing, we decline to give it preclusive effect.

V. Conclusion

The circuit court's order granting Mr. Bollea's motion for temporary injunction is reversed because it acts as an unconstitutional prior restraint under the First Amendment.

Reversed.

DAVIS, C.J., and ALTENBERND, J., Concur.

_______________

Notes:

1. In both the underlying action and in the motion for temporary injunction, Mr. Bollea named Gawker Media, LLC; Heather Clem; Gawker Media Group, Inc.; Gawker Entertainment, LLC; Gawker Technology, LLC; Gawker Sales, LLC; Nick Denton; A.J. Daulerio; Kate Bennert; and Blogwire Hungary Szellemi Alkotast Hasznosito KFT as defendants. However, only Gawker Media, LLC, chose to appeal the order; the remaining parties are appellees in this proceeding who have made no formal appearance.

2. The circuit court also failed to require Mr. Bollea to post a bond, a very basic and ministerial act. See Fla. R. Civ. P. 1.610(b); see also Fla. High Sch. Activities Ass'n v. Mander ex rel. Mander, 932 So. 2d 314, 315-16 (Fla. 2d DCA 2006) (holding that a trial court cannot waive the bond requirement nor can the bond amount be nominal); Cushman & Wakefield, Inc. v. Cozart, 561 So. 2d 368, 370 (Fla. 2d DCA 1990) ("A trial court must require the movant to post an injunction bond before it enters a temporary injunction."). Though the circuit court can determine the appropriate amount of the bond after hearing evidence from both parties, the circuit court is without discretion to determine whether to set bond in the first place. See Bellach v. Huggs of Naples, Inc., 704 So. 2d 679, 680 (Fla. 2d DCA 1997).

3. The Supreme Court assigns each Justice to a federal circuit. See 28 U.S.C. § 42 (2012). As a Circuit Justice, the Justice is responsible for handling matters arising in cases from state and federal courts within his or her circuit.

4. Hulk Hogan with Mark Dagostino, My Life Outside the Ring 187-88, 253 (2009).

5. We are hard-pressed to believe that Mr. Bollea truly desired the affair and Sex Tape to remain private or to otherwise be "swept under the rug." For example, in March 2012, Mr. Bollea called into TMZ Live, a celebrity and entertainment media outlet, and disclosed that he could not identify the woman in the Sex Tape because he had a number of "conquests" during the time it was filmed. Hulk Hogan – I Have NO IDEA Who My Sex Tape Partner Is, TMZ (March 7, 2012, 1:50 PM), http://www.tmz.com/2012/03/07/hulk-hoga ... r-tmz-live. Furthermore, in October 2012, Mr. Bollea appeared on The Howard Stern Show and professed that his good friend, Todd Alan Clem, known professionally as Bubba the Love Sponge, allowed Mr. Bollea to have sex with Mr. Clem's then-wife Heather Clem. Hulk Hogan – Yes, I Banged Bubba's Wife, TMZ (October 9, 2012, 6:08 AM), http://www.tmz.com/2012/10/09/hulk-hoga ... ward-stern. Mr. Bollea was certainly not shy about disclosing the explicit details of another affair he had while married to Linda Bollea in his autobiography. See My Life Outside the Ring at 187-88.

6. We are aware that Gawker Media is likely to profit indirectly from publishing the report with video excerpts to the extent that it increases traffic to Gawker Media's website. However, this is distinguishable from selling the Sex Tape purely for commercial purposes. Cf. Michaels I, 5 F. Supp. 2d 823.

7. Mr. Bollea cites to the offense of video voyeurism, section 810.145(2)(a), Florida Statutes (2006), and to the offense of interception and disclosure of electronic communications, section 934.03, Florida Statutes (2006), in support of his contention.

8. This opinion should not be construed as making a ruling regarding whether or not the information itself was intercepted unlawfully by Gawker Media's source.

9. Gawker Media cites to numerous published and unpublished opinions from various other courts in support of its contention. See, e.g., Bridal Expo, Inc. v. van Florestein, No. 4:08-cv-03777, 2009 WL 255862 (S.D. Tex. Feb. 3, 2009); Suarez Cestero v. Pagan Rosa, 198 F. Supp. 2d 73 (D.P.R. 2002); Hayes v. Ridge, 946 F. Supp. 354 (E.D. Pa. 1996); Lyon Ford, Inc. v. Ford Mktg. Corp., 337 F. Supp. 691 (E.D.N.Y. 1971).

10. Mr. Bollea relies heavily on David Vincent, Inc. v. Broward County, Florida, 200 F.3d 1325 (11th Cir. 2000), in support of his contention that the litigation of an action for a preliminary injunction does not have preclusive effect. However, the Eleventh Circuit, applying Florida collateral estoppel law, actually held that the state court's denial of a temporary injunction does not preclude plaintiffs from later pursuing a permanent injunction. Id. at 1331.
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Re: The Hulk Hogan trial that could redefine freedom of expr

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IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA

TERRY GENE BOLLEA professionally known as HULK HOGAN, Plaintiff, v. HEATHER CLEM; GA WKER MEDIA, LLC aka GAWKER MEDIA; GAWKER MEDIA GROUP, INC. aka GAWKER MEDIA; GAWKER ENTERTAINMENT, LLC; GAWKER TECHNOLOGY, LLC; GAWKER SALES, LLC; NICK DENTON; A.J. DAULERIO; KATE BENNERT, and BLOGWIRE HUNGARY SZELLEMI ALKOTAST HASZNOSITO KFT aka GAWKER MEDIA, Defendants.

Case No. 12012447-CI-011

FILED CIVIL COURT RECORDS DEPARTMENT DEC 28 2012
KEN BURKE
CLERK CIRCUIT COUNTY COURT

FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff Terry Gene Bollea ("Plaintiff' or "Mr. Bollea"), professionally known as "Hulk Hogan," sues defendants Heather Clem aka Heather Cole ("Clem"), Gawker Media, LLC aka Gawker Media, Gawker Media Group, Inc. aka Gawker Media, Gawker Entertainment, LLC, Gawker Technology, LLC, Gawker Sales, LLC, Nick Denton, A.J. Daulerio, Kate Bennert, Blogwire Hungary Szellemi Alkotast Hasznosito KFT aka Gawker Media (collectively, the "Gawker Defendants") (collectively with Clem, "Defendants"), and alleges as follows:

NATURE OF THIS ACTION

1. Defendants have engaged in outrageous, irresponsible and despicable conduct that should be punished to the maximum extent under the law. Defendant Clem caused Mr. Bollea to be secretly videotaped in or about 2006, without his knowledge or consent, while he was engaged in private consensual sexual relations with her in a private bedroom. On or about October 4,2012, the Gawker Defendants posted to the Internet a one-minute and forty-second "highlight reel" of the secretly-taped video and audio footage depicting Mr. Bollea naked and engaged in private consensual sexual relations with Clem in a private bedroom (the "Video"). The Gawker Defendants also posted~ with the Video, a graphic narrative that describes the sexual activity in the Video in lurid detail (the ''Narrative''). The Gawker Defendants posted the Video and Narrative at their website www.Gawker.com (the "Gawker Site"). The Gawker Defendants posted the Video and Narrative for the public to view, for the purpose of obtaining tremendous financial benefit for themselves, including without limitation (a) the sale of advertisements at the Gawker Site to viewers of the webpage with a link to the Video and Narrative, and (b) attracting new viewers to the Gawker Site for the long-term financial benefit of the Gawker Defendants and their numerous affiliated websites, and additional revenues from the substantial new viewers brought to the Gawker Site and its affiliated web sites by the Video and Narrative.

2. Mr. Bollea had no knowledge that the intimate activity depicted in the Video was being recorded. To the contrary, Mr. Bollea believed that such activity was completely private, and he had a reasonable expectation of his privacy in the private bedroom, and he reasonably believed that his privacy was safe and protected at all relevant times.

3. Both Clem's secret recording of Mr. Bollea naked and engaged in private consensual sexual activity, and the Gawker Defendants' posting of the Video and Narrative at the Gawker Site, constitutes a shameful and outrageous invasion of Mr. Bollea's right of privacy by a group of loathsome Defendants who have no regard for human dignity and care only about maximizing their revenues and profits at the expense of all others.

4. Mr. Bollea is informed and believes that the activities by both Clem, and the Gawker Defendants, constitutes a criminal violation of Florida's Video Voyeurism law codified at Section 810.145 of the Florida Statutes.

5. This lawsuit was necessitated by Defendants' blatant violations of Mr. Bollea's right of privacy and other rights as discussed herein. Clem violated Mr. Bollea's rights by participating in the secret recording of Mr. Bollea naked and engaged in private sexual activity in a private bedroom. The Gawker Defendants violated Mr. Bollea's rights by their wrongful disclosure of the private acts depicted in the Video; their unauthorized commercial exploitation of Plaintiff' s name, image, identity and persona; their refusal to remove the Video and Narrative when Plaintiff repeatedly requested and demanded its removal from the Gawker Site; and other calculated wrongful and tortious conduct as described herein.

6. Defendants' malicious conduct violates Plaintiff's constitutional and common law privacy rights and publicity rights, and exceeds all bounds of human decency. Defendants' gross and egregious intrusion into Plaintiff s privacy must be stopped, and must be punished to the maximum extent of the law.

JURISDICTION

7. This Court has jurisdiction because Plaintiff seeks relief in an amount greater than $15,000, exclusive of interest, costs and attorneys' fees.

8. This Court has personal jurisdiction over the Defendants as follows:

a. Defendants committed tortious acts within the State of Florida thereby satisfying Florida's long-arm statute, section 48.193, Florida Statutes;

b. Defendants have committed intentional torts expressly aimed at Plaintiff, the effects of which were suffered in this circuit. Defendants' intentional conduct was calculated to cause injury to Plaintiff in Florida. Based on their intentional torts, Defendants should have reasonably anticipated being haled into this Court and due process is satisfied.

9. Venue is proper in this Court pursuant to section 47.011, Florida Statutes, because, among other things, the claims at issue accrued within this circuit.

PARTIES

10. Plaintiff Terry Gene Bollea is a resident and citizen of the State of Florida, and resident of Pinellas County.

11. Defendant Heather Clem aka Heather Cole is a resident of the State of Florida, believed to reside in Hillsborough County.

12. At all relevant times, defendant Gawker Media, LLC aka Gawker Media, was and is a limited liability company organized and operating under the laws of the State of Delaware, with its principal place of business in New York.

13. At all relevant times, defendant Gawker Media Group, Inc. aka Gawker Media, was and is a Cayman Islands corporation.

14. At all relevant times, defendant Gawker Entertainment, LLC, was and is a New York limited liability company. Thus, defendant Gawker Entertainment, LLC was and is a citizen of New York.

15. At all relevant times, defendant Gawker Technology, LLC was an is a New York limited liability company.

16. At all relevant times, defendant Gawker Sales, LLC was an is a New York limited liability company.

17. Plaintiff is informed and believes and based thereon alleges that defendants Gawker Media, LLC, Gawker Entertainment, LLC, Gawker Technology, LLC, and Gawker Sales, LLC were and are all under the control of defendant Gawker Media Group, Inc. based in the Cayman Islands.

18. At all relevant times, defendant Blogwire Hungary Szellemi Alkotast Hasznosito KFT aka.Gawker Media ("Blogwire Hungary") was and is a Hungarian off-shore company, and owns the Internet domain name GAWKER.COM.

19. Defendants Gawker Media, LLC, Gawker Entertainment, LLC, Gawker Technology, LLC, Gawker Sales, LLC, Gawker Media Group, Inc., and Blogwire Hungary are collectively referred to herein as "Gawker Media".

20. Gawker Media owns, operates, controls and publishes several Internet web sites, including the Gawker Site, which disseminate information worldwide via the Internet.

21. At all relevant times, defendant Nick Denton ("Denton") was and is a citizen of Hungary and the United Kingdom, and is a resident and domiciliary of the State of New York. Defendant Denton is the founder of Gawker Media and currently owns all of, or a controlling or substantial interest in, Gawker Media.

22. At all relevant times, defendant A.J. Daulerio ("Daulerio") was and is a citizen, resident and domiciliary of the State of New York. Plaintiff is informed and believes and based thereon alleges that defendant Daulerio is the Editor in Chief of the Gawker Site and Gawker Media.

23. Plaintiff is informed and believes that defendant Kate Bennert ("Bennert") is a citizen, resident and domiciliary of the State of New York and is employed by Gawker Media.

24. Plaintiff is informed and believes and based thereon alleges that the Gawker Defendants, and each of them, were and are the agents, licensees, employees, partners, joint-venturers, co-conspirators, owners, principals, and employers of the remaining Gawker Defendants, and each of them are, and at all times herein mentioned were, acting within the course and scope of that agency, license, partnership, employment, conspiracy, ownership, or joint venture. Plaintiff further is informed and believes and based thereon alleges that the acts and conduct herein alleged of each of the Gawker Defendants were known to, authorized by, and/or ratified by the other Gawker Defendants, and each of them.

FACTS GIVING RISE TO THE CLAIMS

25. Plaintiff is a professional wrestler, motion picture actor, and television personality who. has enjoyed mainstream popularity as the character "Hulk Hogan." Plaintiff is a twelve-time world wrestling champion.

26. In or about 2006, Mr. Bollea engaged in private sexual relations with defendant Heather Clem, in Clem's private bedroom. Unbeknownst to. Mr. Bollea, and without his knowledge or consent, Mr. Bollea was filmed naked and engaged in private sexual relations with Clem. Plaintiff is informed and believes and on that basis alleges that Clem was involved in filming the private consensual sexual encounter between Mr. Bollea and Clem. Mr. Bollea understood, believed and expected that the sexual· activities in which he and Clem engaged in her private bedroom were completely private and would not be viewed by any other persons. Had Mr. Bollea known that his private sexual activities were being secretly filmed, Mr. Bollea would net have engaged in any such activities.

27.· Plaintiff is informed and believes and thereon alleges that the Gawker Defendants, based on the actions of Clem and others, obtained a copy of the secretly-filmed recording depicting Mr. Bellea naked and engaged in sexual relations with Clem. The recording was edited by the Gawker Defendants into. a one-minute and forty-second "highlight reel" depicting Mr. Bollea fully naked; showing his sex partner, Clem, performing oral sex en him; and showing him engaged in sexual intercourse with her. The footage was not blocked, blurred or obscured in any way by the Gawker Defendants, who created the edited "highlight reel" and also added English subtitles to the Video to ensure that viewers did not miss a word of their private encounter. The Gawker Defendants also prepared the Narrative describing the sexual encounter in lurid detail.

28. On or about October 4, 2012, the Gawker Defendants published at the Gawker Site the Video depicting Plaintiff having private consensual sexual relations with an anonymous woman in a private bedroom, and the Narrative graphically describing the actions taking place in the Video in lurid detail. Defendant Bennert, with the help or under the direction of defendants Denton and Daulerio, edited the secretly-filmed recording into the Video without Plaintiffs knowledge or consent. The Narrative was written and edited by defendants Daulerio, Denton· and Bennert. Plaintiff made numerous and repeated demands to the Gawker Defendants, including directly to defendant Denton, to remove the Video from the Gawker Site. However, the Gawker Defendants failed and refused to do so.

29. At no time prior to, during, or after the private consensual sexual encounter between Mr. Bollea and Clem did Mr. Bollea ever authorize or consent to any person or entity recording the private, intimate acts depicted in the Video, or the storage of the Video, or the editing of the Video, the dissemination, publishing or exploitation of the Video in any way or manner whatsoever, or the creation of the Narrative or other work based on the Video. On the contrary, Plaintiff finds the secret recording of his private sexual activity by Ms. Clem and the publishing of the Video and Narrative by the Gawker Defendants to be outrageous and egregious. The Video and Narrative have never been authorized by Plaintiff for any purpose whatsoever, including any form of disclosure to the public whatsoever.

30. 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. As a natural and foreseeable consequence, massive numbers of individuals were drawn to the Gawker Site, for which the Gawker Defendants have reaped tremendous revenues and profits, and have been unjustly enriched therefrom, based on both the short term web traffic of millions of people who have viewed the Video and Narrative and advertisements displayed thereat, and the long term increase in viewership to the Gawker Site and the Gawker Defendants' other affiliated sites, and the revenues and profits associated therewith for a prolonged period of time. Such tremendous benefits are a direct result of the tremendous fame and goodwill of Plaintiff.

31. As a natural and foreseeable consequence of Defendants' actions, Plaintiff has suffered, and continues to suffer, tremendous emotional distress. His life was "turned upside down" by the unlawful actions of the Defendants, including the continued display of the Video and Narrative at the Gawker Site, and Plaintiff continues to suffer from substantial emotional distress, on a daily basis, as a result. In particular, Plaintiff has suffered, and continues to suffer, substantial embarrassment, humiliation and hurt feelings as a result. Moreover, Plaintiff's goodwill, commercial value, and brand have been substantially harmed as a result as well.

32. Plaintiff has devoted a tremendous amount of his time and effort to developing his career as a professional champion wrestler, motion picture actor, and television personality, and to developing his universal goodwill, reputation and brand. Such efforts have created considerable commercial value in his name, image, identity and persona.

33. The commercial value of Plaintiff's name, image, identity and persona has been, and continues to be, substantially diminished by Defendants' actions, including the secret taping of Plaintiff naked and having sex; the unauthorized transmission of that recording to the Gawker Defendants; and the unauthorized posting, publishing, distribution and dissemination of the Video and Narrative, which is perceived unfavorably by the public and by the negative portrayal of Plaintiff in the Video and Narrative to the general public.

34. Defendants' conduct manifests a depraved disregard for Plaintiffs privacy rights and an unauthorized commercial exploitation of his publicity rights.

35. Plaintiff is informed and believes and alleges thereon that unless enjoined and restrained, the Gawker Defendants will continue to post, publish, distribute, disseminate and exploit the Video and Narrative, despite Plaintiffs numerous and repeated demands that the Gawker Defendants cease and desist. Such infringement and violation of Plaintiff s rights will continue to cause Plaintiff severe emotional distress and damage, for which there is no adequate remedy at law, if the Video and/or Narrative continue to be posted, published, distributed, disseminated and exploited by the Gawker Defendants. Such conduct and activity has caused and will continue to cause Plaintiff to suffer irreparable harm for which there is no adequate remedy at law.

36. All conditions precedent to the bringing and maintenance of this action and the granting of the relief requested have been performed, have occurred, or have been waived.

FIRST CAUSE OF ACTION

(Invasion of Privacy by Intrusion Upon Seclusion Against Defendant Heather Clem).

37. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive; as though fully set forth herein.

38. Clem, without Plaintiffs knowledge or consent, has grossly invaded Plaintiff's protected rights of privacy as recognized under the United States Constitution, Florida Constitution, and the common law, by filming Plaintiff in or about 2006 engaged in private consensual intimate sexual relations with Ms. Clem in a private bedroom. Plaintiff recently learned of the existence of this secretly-filmed video, and brought this lawsuit promptly thereafter.

39. Clem further violated Plaintiff's rights of privacy by disclosing the secretly filmed video to third parties, which then resulted in excerpts of the secretly-filmed video being posted on the Gawker Site.

40. The videotaping of Plaintiff engaging in consensual sexual relations in private quarters was not carried out for reasonable or legitimate purposes. Plaintiff had a reasonable expectation of privacy at all relevant times, and did not know about, nor consent to, the taping of the activity depicted in the secretly-filmed video.

41. The unauthorized taking and dissemination of the secretly-filmed video is highly offensive and objectionable to Plaintiff and to any reasonable person of ordinary sensibilities, and is not of legitimate public concern.

42. Clem knew or should have known that the secretly-filmed video contained private and confidential information, that Plaintiff had a reasonable expectation of privacy, that her conduct would cause private and personal things about Plaintiff to be revealed which Clem had no right to disseminate or disclose, and that the publication of these private facts constitute a clear and substantial violation of Plaintiff's right of privacy.

43. Clem violated Plaintiff's fundamental privacy rights by the conduct alleged herein, including the outrageous intrusion into Plaintiff s privacy and the publication, and dissemination of the secretly-filmed video in an unprivileged manner in conscious disregard of Plaintiff's rights.

44. Plaintiff is informed and believes and thereon alleges that Clem acted with actual malice and reckless disregard of Plaintiff's right of privacy.

45. Unless and until enjoined and restrained by order of this Court, Clem's continued acts will cause Plaintiff severe and irreparable injury which cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the secretly filmed video and all portions and content thereof and all copies thereof, and mandating the delivery of same to Plaintiff and transferring to Plaintiff all right, title and interest in the secretly filmed video and all portions and content thereof and all copies thereof.

46. Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the secretly-filmed video, and any portions and content thereof; mandating the delivery of all reproductions and copies of the secretly-filmed video and all portions and content thereof; and transferring to Plaintiff all right, title and interest in and to the secretly-filmed video and all portions and content thereof.

47. Unless and until enjoined and restrained by order of this Court, Defendants' continued acts will cause Plaintiff severe and irreparable injury which cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the secretly-filmed video and all portions and content thereof and all copies thereof, and mandating the delivery of same to Plaintiff and transferring to Plaintiff all right, title and interest in the secretly-filmed video and all portions and content thereof and all copies thereof.

48. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of Clem were done intentionally or with a conscious and/or reckless disregard of Plaintiff's rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

SECOND CAUSE OF ACTION

(publication of Private Facts Against Defendant Heather Clem)

49. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive, as though fully set forth herein.

50. Clem disclosed or caused to be disclosed to third parties the contents of the secretly-filmed video depicting Plaintiff in or about 2006 engaged in private consensual sexual relations between with Ms. Clem in a private bedroom. Clem knew, or should have known, that the secretly-filmed video contained private and confidential information; that Plaintiff had a reasonable expectation of privacy in engaging in the activity depicted in the secretly-filmed video; that the secretly-filmed video was taken without Plaintiff's knowledge, consent, or approval and would reveal private and personal things about Plaintiff if disclosed to third parties which Clem had no right to disseminate or disclose; and that this publication of these private facts would be offensive and objectionable to a reasonable person of ordinary sensibilities, and would have the natural tendency of causing substantial damages to Plaintiff.

51. Clem's actions served no legitimate public interest.

52. Plaintiff is informed and believes and thereon alleges that Clem, acted with actual malice and reckless disregard of Plaintiff' s right to privacy.

53. Unless and until enjoined and restrained by order of this Court, Defendants' continued acts will cause Plaintiff severe and irreparable injury which cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the secretly-filmed video and all portions and content thereof and all copies thereof, and mandating the delivery of same to Plaintiff and transferring to Plaintiff all right, title and interest in the secretly-filmed video and all portions and content thereof and all copies thereof.

54. As a direct and proximate result of the aforementioned acts by Defendants, Plaintiff has suffered substantial injury, damage, loss, harm, anxiety, embarrassment, humiliation and shame. As a direct and proximate result of the aforementioned acts by Defendants, Plaintiff has been damaged and will be damaged, in an amount subject to proof.

55. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of Defendants were done intentionally or with a conscious and! or reckless disregard of Plaintiffs rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

THIRD CAUSE OF ACTION

(publication of Private Facts as Against the Gawker Defendants)

56. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive, as though fully set forth herein.

57. The Gawker Defendants disclosed to the public the contents of the confidential Video depicting Plaintiff fully naked and engaged in private consensual sexual relations with Clem in a private bedroom. The Gawker Defendants knew or should have known that the Video contained private and confidential information, and that Plaintiff had a reasonable expectation of privacy in being fully naked and engaged in consensual sexual relations in a private bedroom, and that the Video, taken without Plaintiff s knowledge or consent, would reveal private and personal things about Plaintiff which the Gawker Defendants had no right to disseminate, disclose or exploit, and that the publication of these private facts would be offensive and objectionable to a reasonable person of ordinary sensibilities.

58. The Gawker Defendants' posting, publishing, distributing, disseminating and exploiting of Plaintiff engaged in sexual relations in private quarters was not carried out for reasonable or legitimate purposes. Plaintiff had a reasonable expectation of privacy in being fully naked and having private consensual sexual relations with Clem in a private bedroom, and had no knowledge of, and did not consent to, the recording of such private sexual activity.

59. The unauthorized publication by the Gawker Defendants of the Video, Narrative and any portions or content thereof, is offensive and objectionable to Plaintiff, as well as to any reasonable person of ordinary sensibilities, and is not of legitimate public concern. Plaintiff did not consent to any use, distribution or exploitation by Defendants, or any other persons or entities, of the Video, Narrative or any portions or content thereof, whatsoever.

60. The Gawker Defendants knew or should have known that the Video, Narrative and/or any portions or content thereof, contained private and confidential information, and that Plaintiff had a reasonable expectation of privacy in the sexual activities depicted therein, and that the Gawker Defendants' conduct would reveal private and personal things about Plaintiff which the Gawker Defendants had no right to disseminate, disclose or exploit, and that the publication of these private facts would constitute a clear and egregious violation of Plaintiffs right of privacy.

61. The Gawker Defendants violated Plaintiff s fundamental privacy rights by the conduct alleged herein, including the outrageous intrusion into Plaintiff s privacy and the publication, dissemination, exploitation of the Video, Narrative and/or any portions or content thereof, in an unprivileged manner calculated to financial capitalize therefrom and gamer publicity throughout the world, to unjustly enrich the Gawker Defendants and in conscious disregard of Plaintiffs right of privacy.

62. Plaintiff is informed and believes and thereon alleges that the Gawker Defendants acted with actual malice and reckless disregard for Plaintiff s right of privacy.

63. The Gawker Defendants have continued to invade Plaintiffs right of privacy by continuing to disseminate and post the Video and Narrative. Unless and until enjoined and restrained by order of this Court, the Gawker Defendants' continued acts will cause Plaintiff to continue to incur severe and irreparable injury that cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to a temporary restraining order and preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the Video and all portions and content therefrom, including without limitation all still images thereof, and the Narrative.

64. As a direct and proximate result of the aforementioned acts by the Gawker Defendants, Plaintiff has suffered injury, damage, loss, harm, anxiety, embarrassment, humiliation, shame, and severe emotional distress in an amount subject to proof.

65. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of the Gawker Defendants were done intentionally or with a conscious and/or reckless disregard of Plaintiffs rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

FOURTH CAUSE OF ACTION

(Invasion of Privacy by Intrusion Upon Seclusion Against the Gawker Defendants)

66. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive, as though fully set forth herein.

67. The Gawker Defendants, without Plaintiffs consent and against Plaintiffs will, have grossly invaded Plaintiff s protected rights of privacy as recognized under the United States Constitution, Florida Constitution, and applicable common law, by obtaining, watching and editing the secretly recorded video and audio footage involving Plaintiff Clem and by posting and publicly disclosing the Video depicting Plaintiff fully naked and engaged in private intimate consensual sexual relations with Clem in a private bedroom, and by describing, in graphic, lurid detail, the private activities that occurred in private quarters. In doing so, the Gawker . Defendants "peered into the private bedroom" and enabled the general public to "peer into the private bedroom" and watch Plaintiff when he was fully naked and engaged in private sexual activity, without Plaintiff's knowledge, authorization or consent.

68. The Gawker Defendants' acquiring, viewing, editing, posting, publishing, distributing, disseminating and exploiting of Plaintiff fully naked and engaged in sexual relations in private quarters was not carried out for reasonable or legitimate purposes, but rather to reap substantial revenues and profits at the expense of Plaintiff and others. Plaintiff had a reasonable expectation of privacy in having private consensual sexual relations with Clem in a private bedroom, and had no knowledge of, and did not consent to, the recording or dissemination of such private sexual activity.

69. The actions by the Gawker Defendants are offensive and objectionable to Plaintiff, and would be offensive and objectionable any reasonable person of ordinary sensibilities, and is not of legitimate public concern.

70. The Gawker Defendants knew or should have known that the private video and audio footage, depicting Plaintiff naked and engaged in consensual sexual activity in a private bedroom, contained private and confidential information and content, and that Plaintiff had a reasonable expectation of privacy in the activities depicted therein, and that the Gawker Defendants' conduct would reveal private and personal things about Plaintiff which Defendants had no right to disseminate, disclose or exploit, and that the publication of these private facts would constitute a clear and egregious violation of Plaintiffs right of privacy.

71. The Gawker Defendants violated Plaintiffs fundamental privacy rights by the conduct alleged herein, including the outrageous intrusion into Plaintiffs privacy and the publication, dissemination, and exploitation of the Video and Narrative in an unprivileged manner calculated to financially capitalize therefrom, to garner publicity throughout the world, and to unjustly enrich the Gawker Defendants in conscious disregard of Plaintiff s right of privacy.

72. Plaintiff is informed and believes and thereon alleges that the Gawker Defendants acted with actual malice and reckless disregard of Plaintiffs right of privacy.

73. The Gawker Defendants have continued their invasion of Plaintiffs right of privacy by continuing to disseminate and post the Video and Narrative. Unless and until enjoined and restrained by order of this Court, the Gawker Defendants' continued acts will cause Plaintiff to continue to incur severe and irreparable injury that cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to a temporary restraining order and preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the Video and all portions and content therefrom, including without limitation all still images thereof, and the Narrative.

74. As a direct and proximate result of the aforementioned acts by the Gawker Defendants, Plaintiff has suffered injury; damage, loss, harm, anxiety, embarrassment, humiliation, shame and severe emotional distress. As a direct and proximate result of the aforementioned acts by the Gawker Defendants, Plaintiff has been damaged and will be damaged, in an amount subject to proof.

75. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of Defendants were done intentionally or with a conscious and/or reckless disregard of Plaintiffs rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

FIFTH CAUSE OF ACTION

(Violation of Florida Common Law Right of Publicity Against the Gawker Defendants)

76. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive as though fully set forth herein.

77. Plaintiff is a professional wrestler, motion picture actor, and television personality who has enjoyed mainstream popularity as the character "Hulk Hogan." Plaintiff is a twelve time world wrestling champion. Plaintiff has devoted a tremendous amount of time and effort developing his career and developing his universal goodwill, reputation and brand. Such efforts have created considerable commercial value in his name, image, identity and persona.

78. The Gawker Defendants' unauthorized use of Plaintiffs name, image, identity and persona in connection with the Video and Narrative constitutes a violation and misappropriation of Plaintiff s right of publicity in that the Gawker Defendants misappropriated Plaintiff s name, likeness, image, identity and persona by using the Video and Narrative for the purpose of commercial gain, without Plaintiff s consent.

79. The misappropriation of Plaintiffs publicity rights was for the Gawker Defendants' advantage in that Plaintiffs name, likeness, image, identity and persona were used and intended to create and enhance the Gawker Defendants' pecuniary gain and profit.

80. The Gawker Defendants have continued to use Plaintiffs publicity rights continuing to disseminate the Video and Narrative at the Gawker Site, notwithstanding Plaintiff s numerous and repeated requests to Gawker Media and defendant Denton that they cease and desist immediately and permanently. Unless and until enjoined and restrained by Order of this Court, the Gawker Defendants' continued acts will cause Plaintiff severe and irreparable injury which cannot be adequately compensated by monetary damages. Plaintiff is entitled to a temporary restraining order and preliminary and permanent injunctive relief enjoining the publication, distribution, dissemination and use of the Video and all portions and content therefrom, including without limitation all still images thereof, and the Narrative.

81. As a direct and proximate result of the aforementioned acts by the Gawker Defendants, the Gawker Defendants have earned profits attributable to this unauthorized commercial use and exploitation of Plaintiffs name, image and likeness. The amount of such ill-gotten gains had yet to be ascertained. Plaintiff is entitled to recover all said unjust enrichment, including all profits earned by the Gawker Defendants as a

82. Moreover, Plaintiff is entitled to seek and hereby does seek the market value of the use of his publicity rights in the manner in which they were commercially exploited, without Plaintiffs permission and against his strenuous objections and legal demands.

83. As a direct and proximate result of the aforementioned acts by the Gawker Defendants, Plaintiff has suffered injury, damage, loss, harm, anxiety, embarrassment, humiliation, shame, and severe emotional distress in an amount subject to proof.

84. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of the Gawker Defendants were done intentionally or with a conscious and/or reckless disregard of Plaintiffs rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

SIXTH CAUSE OF ACTION

(Intentional Infliction of Emotional Distress Against All Defendants)

85. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive as though fully set forth herein.

86. At all times herein, Clem acted intentionally and unreasonably in creating the secretly-filmed video and audio footage and causing it to be disseminated to third parties when she knew or should have known that Plaintiffs emotional distress would likely result. The Gawker Defendants acted intentionally and unreasonably in acquiring, viewing, editing, publishing, distributing and disseminating the Video, and creating and publishing the Narrative, when they knew or should have known that emotional distress would likely result. Notwithstanding Plaintiffs repeated requests that Defendants cease and desist immediately from their posting and publishing of the Video and Narrative, the Gawker Defendants failed and refused to do so.

87. Defendants' conduct was intentional and malicious and done for the purpose of causing, or was known by Defendants to likely cause, Plaintiff humiliation, mental anguish and severe emotional distress and was done with the wanton and reckless disregard of the consequences to Plaintiff.

88. As such, in doing the acts alleged hereinabove, Defendants acted outrageously and beyond all reasonable bounds of decency, and intentionally inflicted severe emotional distress upon Plaintiff, to his detriment.

89. As a proximate result of the aforementioned wrongful conduct, Plaintiff has suffered substantial monetary damages, including damages to his personal and professional reputation and Career, and substantial emotional distress, anxiety and worry.

90. Plaintiff is informed and believes and thereon alleges that Defendants acted with actual malice and reckless disregard of Plaintiff' s right of privacy.

91. Unless and until enjoined and restrained by order of this Court, Defendants' continued acts will cause Plaintiff severe and irreparable injury which cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the Video and all portions and content thereof and all copies thereof, and mandating the delivery of same to Plaintiff and transferring to Plaintiff all right, title and interest in the Video and all portions and content thereof and all copies thereof, and the Narrative.

92. As a direct and proximate result of the aforementioned acts by Defendants, Plaintiff has suffered substantial monetary damages, including damages to his personal and professional reputation and career, and substantial injury damage, loss, harm, anxiety, embarrassment, humiliation, shame, and severe emotional distress in an amount that has not yet been fully ascertained. As a direct and proximate result of the aforementioned acts by Defendants, Plaintiff has been damaged and will be damaged, in an amount subject to proof.

93. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of Defendants were done intentionally or with a conscious and/or reckless disregard of Plaintiff's rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

SEVENTH CAUSE OF ACTION

(Negligent Infliction of Emotional Distress Against All Defendants)

94. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive as though fully set forth herein.

95. At all times herein, Defendants acted negligently and unreasonably in creating the Video and causing it to be disseminated to third parties. In doing so, Defendants acted beyond all reasonable bounds of decency, and negligently inflicted emotional distress upon Plaintiff, to his detriment.

96. Defendants' conduct was negligent and proximately caused Plaintiff to suffer substantial humiliation, mental anguish and severe emotional distress and was done with the wanton and reckless disregard of the consequences to Plaintiff.

97. As a proximate result of the aforementioned wrongful conduct, Plaintiff has suffered substantial emotional distress, anxiety and worry.

98. Plaintiff is informed and believes and thereon alleges that Defendants acted with actual malice and reckless disregard of Plaintiffs right to privacy.

99. Unless and until enjoined and restrained by order of this Court, Defendants' continued acts will cause Plaintiff severe and irreparable injury which cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the Video and all portions and content thereof and all copies thereof, and mandating the delivery of same to Plaintiff and transferring to Plaintiff all right, title and interest in the Video and all portions and content thereof and all copies thereof.

EIGHTH CAUSE OF ACTION

(Violation of section 934.10, Florida Statutes Against All Defendants)

100. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive as though fully set forth herein.

101. Plaintiff had a reasonable expectation of privacy in engaging in private consensual sexual relations in a private bedroom at all relevant times, and did not know about, nor consent to, the taping of the activity depicted in the secretly-filmed video, or its publication or dissemination.

102. Defendants violated Plaintiff s fundamental privacy rights by the conduct alleged herein, including the outrageous intrusion into Plaintiffs privacy and the publication, and dissemination of the secretly-filmed. Video in an unprivileged manner in conscious disregard of Plaintiff s rights.

103. Defendants disclosed or caused to be disclosed to third parties the contents of the secretly-filmed video depicting Plaintiff in or about 2006 engaged in private consensual sexual relations between with Clem in a private bedroom. Defendants knew, or should have known, that the Video contained private and confidential information; that Plaintiff had a reasonable expectation of privacy in engaging in the activity depicted in the Video; that the Video was taken without Plaintiff s knowledge, consent, or approval and would reveal private and personal things about Plaintiff if disclosed to third parties which Defendants had no right to disseminate or disclose; and that this publication of these private facts would be offensive and objectionable to a reasonable person of ordinary sensibilities, and would have the natural tendency of causing substantial damages to Plaintiff.

104. Defendants' actions have not served any legitimate public interest.

105. Plaintiff is informed and believes and thereon alleges that Defendants have acted with actual malice and reckless disregard of Plaintiffs rights, including his right to privacy.

106. Unless and until enjoined and restrained by order of this Court, Defendants' continued acts will cause Plaintiff severe and irreparable injury which cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the Video and all portions and content thereof and all copies thereof, and mandating the delivery of same to Plaintiff and transferring to Plaintiff all right, title and interest in the Video and all portions and content thereof and all copies thereof.

107. As a direct and proximate result of the aforementioned acts by Defendants, Plaintiff has suffered substantial injury, damage, loss, harm, anxiety, embarrassment, humiliation, shame, and severe emotional distress. As a direct and proximate result of the aforementioned acts by Defendants, Plaintiff has been damaged and will be damaged, in an amount subject to proof.

108. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of Defendants were done intentionally or with a conscious and/or reckless disregard of Plaintiffs rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

PRAYER FOR RELIEF

WHEREFORE, plaintiff Terry Gene Bollea prays for judgment against defendants Heather Clem aka Heather Cole, Gawker Media, LLC aka Gawker Media, Gawker Media Group, Inc. aka Gawker Media, Gawker Entertainment, LLC, Gawker Technology, LLC, Gawker Sales, LLC, Nick Denton, A.J. Daulerio, Kate Bennert, Blogwire Hungary Szellemi Alkotast Hasznosito KFT aka Gawker Media as follows:

1. For an award of general and special damages in an amount in excess of the minimum jurisdictional limits of this Court in accordance with proof at trial together with interest thereon at the maximum legal rate;

2. For costs of suit incurred herein;

3. For an Order and Judgment transferring to Plaintiff all of Defendants' right, title and interest in and to the secretly-recorded video and audio footage depicting Plaintiff s sexual encounter with Clem, and all portions and content thereof, and all copies and reproductions thereof contained in all media;

4. For an Order and Judgment requiring the delivery to Plaintiff of all copies of the secretly-recorded video and audio footage depicting Plaintiffs sexual encounter with Clem, and all portions and content thereof, in all formats and all forms of media, including electronic and physical media, within Defendants' possession, custody or control, including without limitation turning over to Plaintiff any and all storage devices (such as CDs, DVDs, hard drives, flash drives, tapes, and disks) containing same;

5. For preliminary and permanent injunction against Defendants and all persons acting under their control, from any and all activity that would cause the distributing, disseminating, publishing, displaying, posting for view or access on or through the Internet or any other manner or media outlet, broadcasting, transferring, licensing, selling, offering to sell or license, or otherwise using, exploiting or attempting to exploit, the secretly-recorded video and audio footage depicting Plaintiff s sexual encounter with Clem, or any portions or content thereof or any copies thereof, in any and all formats and media, including all electronic and physical media;

6. For an Order and Judgment requiring Defendants to turn over to Plaintiff all information pertaining to the secretly-recorded video and audio footage depicting Plaintiffs sexual encounter with Clem, including without limitation, all activity by all persons and entities related to the creation, storage, transportation, editing, distributing, disseminating, publishing, displaying, posting for view or access on or through the Internet or any other manner or media outlet, broadcasting, transferring, licensing, selling, offering to sell or license, or otherwise using, exploiting or attempting to exploit, such footage or any portions or content thereof or any copies thereof, in any and all formats and media, including all electronic and physical media;

7. For a constructive trust to be placed upon Defendants and all persons acting on their behalf or under their direction or control, as to all revenues and profits received by any and all such individuals, including Defendants, to be held for the benefit of Plaintiff, and to be disgorged in their entirety to Plaintiff, in connection with the secretly-recorded video and audio footage depicting Plaintiff s sexual encounter with Clem, including the publishing of the Video and Narrative;

8. For such other and further relief as to this court may deem and proper.

DEMAND FOR JURY TRIAL

Plaintiff Terry Gene Bollea hereby demands a trial by jury on all issues so triable.

Respectfully Submitted,

DATED: December 28, 2012

Kenneth G. Turkel, Esq.
Florida Bar No. 867233
kturkel@bajocuva.com
Christina K. Ramirez
Florida Bar No. 0954497
cramirez@bajocuva.com
BAJO CUV A COHEN & TURKEL, P.A.
100 N. Tampa Street, Suite 1900
Tampa, FL 33602
Telephone: (813) 443-2199
Facsimile: (813) 443-2193

DATED: December 28, 2012

Charles J. Harder, Esq.
California Bar No. 184593
(Pro Hac Vice application to be filed)
charder@HMAfinn.com
HARDER MIRELL & ABRAMS LLP
1801 Avenue of the Stars, Suite 1120
Los Angeles, CA 90067
Telephone: (424)203-1600
Facsimile: (424) 203-1601

Attorneys for Plaintiff Terry Gene Bollea
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

TERRY GENE BOLLEA, Plaintiff, vs. HEATHER CLEM et al., Defendants.

Case No.: 8:13-cv-00001-T-27AEP

ORDER

BEFORE THE COURT is Plaintiffs Motion for Remand (Dkt. 20). Defendant Gawker Media, LLC responded in opposition (Dkt. 24), and Plaintiff replied in support of the motion (Dkt. 28) after leave of court (Dkt. 27). [1] Upon consideration, the motion (Dkt. 20) is GRANTED.

I. INTRODUCTION

In 2006, Terry Gene Bollea was secretly videotaped while engaged in private sexual conduct with Heather Clem (Dkt. 2 ~ 1 ). This video was eventually leaked to third-parties and obtained by the Gawker Defendants (id ~ 27). In 2012, the Gawker Defendants published excerpts of the video and a narrative describing the taped activity on its website (id. ~ 28). Upon discovering the video, Bollea sued Clem and her ex-husband, Todd Alan Clem, in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida (Dkt. 1-1). On December 28, 2012, Bollea filed a First Amended Complaint dropping Todd Alan Clem as a defendant and adding the Gawker Defendants (Dkt. 2). Gawker Media, LLC promptly removed the case, premising jurisdiction on the fraudulent misjoinder of Heather Clem and federal questions arising under the United States Constitution and the United States Copyright Act (Dkt. 1 ). Bollea now seeks to remand the case back to state court (Dkt. 20).

II. STANDARD

Removal jurisdiction is determined "based on the plaintiffs pleadings at the time of removal." Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997). The removing party bears the burden of proof regarding the existence of federal subject matter jurisdiction, City of Vestavia Hills v. Gen. Fidelity Ins. Co., 676 F.3d 1310, 1313 n.l (11th Cir. 2012), and the plaintiffs factual allegations are taken in the light most favorable to the plaintiff. Stillwell v. Allstate Ins. Co., 663 F .3d 1329, 1333 (11th Cir. 2011 ). If removal is based on diversity of citizenship, the defendant has the burden of demonstrating complete diversity. See 28 U.S.C. § 1332(a); Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010).

"Because removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly." Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999). All doubts about jurisdiction are resolved in favor of remand, Miedema v. Maytag Corp., 450 F .3d 1322, 1328 (11th Cir. 2006), and any uncertainties about state substantive law are resolved in the plaintiffs favor. Stillwell, 663 F.3d at 1333.

III. DISCUSSION

A. The Court Does Not Have Diversity Jurisdiction Because Heather Clem Is Not Fraudulently Joined.


Federal district courts have original jurisdiction over all civil actions where the matter in controversy exceeds $75,000 and the case is between citizens of different states. 28 U.S.C. § 1332(a)(l). An action filed in state court meeting this criteria may be removed to federal court on the basis of diversity jurisdiction. 28 U.S.C. § 1441(a). After a diversity case is removed, it must be remanded to state court ifthere is not complete diversity of citizenship among the parties. Stillwell, 663 F.3d at 1332. However, when a plaintiff names a non-diverse defendant solely in order to defeat diversity jurisdiction, the non-diverse defendant is fraudulently joined and the district court must "ignore the presence of the non-diverse defendant and deny any motion to remand the matter back to state court." Henderson v. Wash. Nat'/ Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006).

Although Bollea and Heather Clem are both Florida citizens, Gawker removed this case based on Bollea' s allegedly fraudulent joinder of Heather Clem in this action. To establish fraudulent joinder, Gawker has the "heavy" burden of "proving by clear and convincing evidence" that ( 1) there is no possibility that Bollea can establish a cause of action against Heather Clem, (2) Bollea has fraudulently pled jurisdictional facts to bring Heather Clem into state court, or (3) Bollea's misjoinder of Heather Clem and Gawker is "so egregious as to constitute fraudulent joinder." Stillwell, 663 F.3d at 1332; Tapscott v. MS. Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996), overruled on other ground Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000).

1. Bollea States a Cause of Action Against Heather Clem.

Gawker first argues that there is no possibility that Bollea can establish a cause of action against Heather Clem because the applicable statutes of limitations bar all of Bollea's claims. If successful, this argument would establish fraudulent joinder, and the motion to remand would be denied. See Brown v. Jevic, 575 F.3d 322, 327 (3d Cir. 2009) ("[A] statute of limitations defense is properly considered in connection with a fraudulent joinder inquiry."); LeBlang Motors, Ltd. v. Subaru of Am., Inc., 148 F.3d 680, 690 (7th Cir. 1998) ("If the time to bring the cause of action had expired, then the district court was correct in dismissing Wright and Knight as fraudulently joined.").

Bollea asserts five causes of action against Heather Clem: ( 1) invasion of privacy by intrusion upon seclusion, (2) publication of private facts, (3) intentional infliction of emotional distress, (4) negligent infliction of emotional distress, and (5) violation of Section 934.10, Florida Statutes. [2] If one of Bollea's claims withstands the statute of limitations inquiry, then Gawker' s first argument for fraudulent joinder fails.

Gawker argues that Bollea's claims against Heather Clem "arise almost entirely out of her alleged recording of the Video and are therefore time barred" (Dkt. 24 at 3). The First Amended Complaint, however, plainly asserts a claim against Heather Clem for publication of the video, as well (see Dkt. 2 ~~ 39, 50). While the date of recording appears on the face of the First Amended Complaint, there are no allegations concerning the date of Heather Clem's alleged publication that would enable an evaluation of the statute of limitations at this stage. See Brotherhood of Locomotive Engineers & Trainmen Gen. Comm. of Adjustment CSXTransp. N. Lines v. CSX Transp., Inc., 522 F.3d 1190, 1194 (11th Cir. 2008) (dismissal based on a statute of limitations is appropriate only if it is "apparent from the face of the complaint that the claim is time-barred").

At a minimum, therefore, Bollea's publication claim against Heather Clem is not barred by the applicable statute of limitations, and Gawker's argument that Bollea cannot establish a cause of action against Heather Clem fails. See also Stillwell, 663 F.3d at 1333 ("If there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court." (quotation omitted)).

2. Heather Clem Is Not Fraudulently Misjoined.

Gawker also argues that removal is appropriate and diversity jurisdiction exists because Bollea's joinder of Heather Clem is "so egregious as to constitute fraudulent joinder." Tapscott, 77 F.3d at 1360. This category of fraudulent joinder is often labeled "fraudulent misjoinder." See Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1289 (11th Cir. 1998). The doctrine of fraudulent misjoinder applies "where a diverse defendant is joined with a nondiverse defendant as to whom there is no joint, several or alternative liability and where the claim against the diverse defendant has no real connection to the claim against the nondiverse defendant." Id at 1287. In other words, if Heather Clem has no joint, several, or alternative liability with Gawker, and the claim against her has no real connection to the claim against Gawker, then she has been fraudulently misjoined and remand is improper.

Under Triggs, if a plaintiffs joinder of defendants satisfies the permissive joinder requirements of Federal Rule of Civil Procedure 20(a)(2), then the parties are not fraudulently misjoined. Id at 1289. Rule 20(a)(2) allows defendants to be joined if "any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences," and "any question of law or fact common to all defendants will arise in the action." Fed. R. Civ. P. 20(a)(2)(A)-(B). To determine whether claims arise from the same "series of transactions or occurrences" under Rule 20(a)(2), courts in the Eleventh Circuit apply the "logical relationship" test. See Smith v. Trans-Siberian Orchestra, 728 F. Supp. 2d 1315, 1319 (M.D. Fla. 2010 (citing Republic Health Corp. v. Life mark Hasps. of Fla., 755 F.2d 1453, 1455 (11th Cir. 1985)). "Under this test, a logical relationship exists if the claims rest on the same set of facts or the facts, on which one claim rests, activate additional legal rights supporting the other claim." Id (citing Republic Health, 755 F.2d at 1455). In other words, "there is a logical relationship when 'the same operative facts serve as the basis of both claims."' Republic Health, 755 F.2d at 1455 (quoting Plant v. Blazer Fin. Servs., Inc., 598 F.2d 1357, 1361 (5th Cir. 1979)). "[O]nly claims that do not arise from common operative facts are not logically related." Montgomery Ward Dev. Corp. v. Juster, 932F.2d 1378,1381 n.1 (llthCir.1991). The logical relationship standard is a "loose" one that "permits a broad realistic interpretation in the interest of avoiding a multiplicity of suits." Plant, 598 F .2d at 1361 (internal quotations omitted). Joinder rules, including Rule 20(a)(2), are construed generously towards "entertaining the broadest possible scope of action consistent with fairness of the parties." United Mine Workers v. Gibbs, 383 U.S. 715,724 (1966).

The claims against Heather Clem and Gawker are "logically related" and rest on the same set of operative facts- namely, the recording and publication of the video. To find otherwise would be to ignore the Eleventh Circuit's directive to interpret Rule 20 "broad[ly]" to "avoid[] a multiplicity of suits." Plant, 598 F.2d at 1361. Moreover, questions of law and fact common to Heather Clem and Gawker will undoubtedly arise in this case, including questions concerning the video's chain of custody, Bollea's privacy rights, the applicability and interpretation of Florida's privacy torts, and the Defendants' constitutional defenses. Because Bollea's claims against Heather Clem and Gawker are logically related, they satisfy Rule 20(a)(2), and Gawker has not shown that Bollea's joinder of the Defendants was "egregious."

B. The First Amended Complaint Does Not Give Rise to Federal Question Jurisdiction.

Unable to establish diversity jurisdiction by fraudulent joinder, Gawker must prove that federal question jurisdiction exists under 28 U.S. C. § 13 31. In its notice of removal, Gawker asserts two bases for federal question jurisdiction. First, Gawker argues that Bollea's claims of invasion of privacy by intrusion upon seclusion "aris[ e] under the United States Constitution" (Dkt. 1 ¶ 40). Second, Gawker asserts that Bollea' s request for an order "transferring to Plaintiff all of Defendants' right, title and interest in and to the" video (Dkt. 2 at 24 ¶ 3) is governed exclusively by the United States Copyright Act (Dkt. 1 ¶ 41). [3] Reading Gawker's Notice of Removal broadly, the second basis contends that Bollea' s claims are completely preempted by the Copyright Act, and that jurisdiction is proper under 28 U.S.C. §§ 1338 and 1454.

1. Federal Questions Arising Under the United States Constitution Do Not Appear on the Face of the Complaint.

Congress has authorized the federal district courts to exercise original jurisdiction in "all civil actions arising under the Constitution, laws, or treaties of the United States." § 1331. The federal question at issue "must appear on the face of the plaintiffs well-pleaded complaint." Cmty. State Bank v. Strong, 651 F.3d 1241, 1251 (11th Cir. 2011). When only state-law claims are asserted in a complaint, a claim "aris[es] under" federal law if it "necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities." Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308,314 (2005). That is, "federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and ( 4) capable of resolution in the federal court without disrupting the federal-state balance approved by Congress." Gunn v. Minton, 133 S.Ct. 1059, 1065 (2013).

a. No federal law issues are "necessarily raised" by the First Amended Complaint.

In Gunn v. Minton, the Supreme Court applied this four-factor analysis to determine whether a state-law legal malpractice claim arose under federal law for the purpose of federal question jurisdiction. Beginning with the first factor, the Court held that the federal issue was "necessarily raised" because adjudication of the affirmative claim of legal malpractice required the application of federal patent law. 133 S. Ct. at 1065. Here, however, adjudication of Bollea's privacy claims do not require the application or interpretation of federal law. A claim for publication of private facts requires proof of "1) the publication, 2) of private facts, 3) that are offensive, and 4) are not of public concern." Spilfogel v. Fox Broadcasting Co., 433 Fed. Appx. 724, 725 (11th Cir. 2011) (citing Cape Publ'ns, Inc. v. Hitchner, 549 So. 2d 1374, 1377 (Fla. 1989) ). [4] And intrusion upon seclusion requires the plaintiff to prove the defendant "physically or electronically intrud[ed] into one's private quarters." Id at 726 (quoting Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156, 162 (Fla. 2003)). [5] Neither of these torts requires the application of federal law. A federal issue is therefore not "necessarily raised" by the First Amended Complaint.

Gawker's arguments for a contrary conclusion are unpersuasive. It first cites Country Club Estates, L.L.C. v. Town of Loma Linda, 213 F.3d 1001 (8th Cir. 2000), to demonstrate that Bollea's "complaint quite clearly allege[ d] a violation of the federal Constitution at several points," giving rise to federal question jurisdiction.

In Loma Linda, landowners brought an action in quo warranto against the town, alleging that the court order establishing the town of Lorna Linda was invalid because the landowners were not given proper notice in violation of their due process rights under the federal and state constitutions. Id. at 1003. The Eighth Circuit held that federal question jurisdiction was appropriate because the plaintiffs' reference to the United States Constitution was "unequivocal." ld "If the Due Process Clause of the Fourteenth Amendment is given one construction, the claim will prevail; if it is given another, the claim will fail." Id This was, the court said, a "paradigm case for arising-under jurisdiction." ld

As opposed to the unequivocal reference to the Constitution in Loma Linda, Bollea's references to constitutional privacy are made in passing. His claims do not rise and fall on interpretations of the First, Fifth, or Fourteenth Amendments. Rather, the success of his claims depends on the application of state common law applicable to invasion of privacy torts. The First Amended Complaint, when read as a whole, makes only state law claims. Bollea' s passing references to his right to privacy do not "necessarily rais[e]" provisions of the United States Constitution. See Diaz v. Sheppard, 85 F .3d 1502, 1505 (11th Cir. 1996) (remand to state court is appropriate in a case alleging malpractice, negligence, and breach of contract, even though the plaintiff invoked Eighth Amendment standards in his complaint); Warthman v. Genoa Township Bd. of Trustees, 549 F.3d 1055, 1064 (6th Cir. 2008) ("A reference to the U.S. Constitution in a complaint should be read in the context of the entire complaint to fairly ascertain whether the reference states a federal cause of action or ... simply supports an element of a state claim."); Avitts v. Amoco Production Co., 53 F.3d 690, 694 (5th Cir. 1995) ("[S]ubject matter jurisdiction cannot be created by simple reference to federal law.").

Gawker also points to Bollea's assertions in previous litigation as evidence that Bollea's claims arise under the First, Fifth, and Fourteenth Amendments. The basis for a federal court's jurisdiction, however, must appear on the face of the complaint. Strong, 651 F .3d at 1251. Bollea' s pleadings in previous litigation and other papers in this litigation are therefore irrelevant. See Ehlen Floor Covering, Inc. v. Lamb, 660 F.3d 1283, 1287 (11th Cir. 2011) ("Jurisdiction is determined by looking to the face of the plaintiffs' well-pleaded complaint .... "). [6] Bollea's claims simply do not necessarily raise a federal question.

b. Any federal issues arising out of Bollea's state-law claims are not "substantial."

Even if the First Amended Complaint necessarily raises federal issues, federal question jurisdiction is still defeated because the federal issues referenced in the First Amended Complaint are not "substantial." Substantiality is evaluated by looking to the importance of the issue to the federal system as a whole. Gunn, 133 S. Ct. at 1067. Issues that will "change the real-world result" for future cases and future litigants are substantial. ld The two paradigmatic examples of "substantial" federal issues cited in Gunn involved the United States Government's "direct interest in the availability of a federal forum to vindicate its own administrative action," and the "constitutional validity of an act of Congress which is directly drawn in question." Grable, 545 U.S. at 315; Smith v. Kansas City Title & Trust Co., 255 U.S. 180,201 (1921); see Gunn, 133 S. Ct. at 1066. Those issues of law were "substantial" because they "could be settled once and for all and thereafter would govern numerous" cases. Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 700 (2006).

The analysis of substantiality in Gunn makes it clear that any federal issues arising from the First Amended Complaint are not "substantial." The federal issues referenced by Bollea do not impact the Government's interest in vindicating its actions or enforcing its laws. Any decision regarding the application of federal law to Bollea's claims will be backward-looking in nature and, while important to Bollea, Clem, and Gawker, will not affect the ability to vindicate crucial constitutional rights in the future or settle issues that would govern numerous cases in the future. See Gunn, 133 S. Ct. at 1066 ("Again, the relevant point was not the importance of the question to the parties alone but rather the importance more generally of a determination that the Government securities were issued under an unconstitutional law, and hence of no validity." (internal quotations omitted)). Ultimately, this case "is 'poles apart from Grable,' in which a state court's resolution of the federal question 'would be controlling in numerous other cases."' /d. at 1 067 (quoting Empire Healthchoice, 547 U.S. at 700). Even if this case raises novel First Amendment issues and claims, that fact is insufficient to confer federal question jurisdiction because another federal court will, at some point, have a chance to decide the issue. See id. Allowing Florida state courts to resolve this case will not "undermine 'the development of a uniform body of [federal] law."' /d. (quoting Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 162 (1989)).

In summary, federal issues do not appear on the face of Bollea's First Amended Complaint. Those federal issues that are implied by passing reference to the United States Constitution are not "necessarily raised" or "substantial" and therefore do not confer federal question jurisdiction. There are no federal causes of action asserted, and Bollea's state law privacy torts do not give rise to a federal question jurisdiction. See Vurimindi v. Wyeth Pharms., 447 Fed. Appx. 426 (3d Cir. 2011) (affirming dismissal of state law claims, including invasion of privacy, for lack of federal question jurisdiction). [7] Bollea is the "master of the claim" and is entitled to "avoid federal jurisdiction by exclusive reliance on state law." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).

2. Bollea 's Claims Are Not Completely Preempted by the Copyright Act.

"If a federal question does not appear on the face of the complaint, then the plaintiffs claim arises under federal law only if it 'falls within the special category of federal question jurisdiction created by the doctrine of complete preemption."' Strong, 651 F .3d at 1251 (quoting Cotton v. Mass. Mut. Life Ins. Co., 402 F.3d 1267, 1281 (11th Cir. 2005)). The Eleventh Circuit has yet to decide whether the Copyright Act completely preempts related state law claims, although at least four other circuits have held that it does. Stuart Weitzman, LLC v. Microcomputer Resources, Inc., 542 F.3d 859,864 (11th Cir. 2008); see Santa-Rosa v. Combo Records, 471 F.3d 224,226-27 (1st Cir. 2006); Ritchie v. Williams, 395 F.3d 283,285-87 (6th Cir. 2005); Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 303-05 (2d Cir. 2004); Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 230-33 (4th Cir. 1993); see also Dunlap v. G&L Holding Group, Inc., 381 F.3d 1285, 1289-91, 1293-98 (11th Cir. 2004) (suggesting that the Copyright Act might have complete preemptive effect in some circumstances); Foley v. Luster, 249 F.3d 1281, 1287-88 (11th Cir. 2001) (same).

The cases applying the complete preemption doctrine to the Copyright Act ask "(1) whether the particular work falls within the type of works protected by the Copyright Act under 17 U.S.C. §§ 102 and 103 (the subject matter requirement); and (2) whether the claim seeks to vindicate rights that are equivalent to one of the bundle of exclusive rights of a copyright holder protected by 17 U.S.C. § 106 (the general scope requirement)." Stuart Weitzman, 542 F.3d at 864 n.5. To satisfy the general scope requirement, the state law claim must involve acts "of reproduction, adaptation, performance, distribution or display." Briarpatch, 3 73 F .3d at 305. The state law claim may not have any "extra elements that make it qualitatively different from a copyright infringement claim." !d. To determine whether a claim is qualitatively different, courts look to "what [the] plaintiff seeks to protect, the theories in which the matter is thought to be protected and the rights sought to be enforced." !d. at 306 (quoting Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693,716 (2d Cir. 1992)).

In this case, Counts I and II of the First Amended Complaint are qualitatively different than a copyright infringement claim. Even though Bollea seeks to regulate and control the distribution and display of the video, his claims for intrusion upon seclusion and publication of private facts necessarily require proof of separate elements of privacy. Intrusion upon seclusion requires proving the qualitatively different element of "intru[sion] into one's private quarters," and publication of private facts requires a plaintiff to prove the qualitatively different elements of "private facts" and "public concern." Spilfogel, 4 3 3 Fed. Appx. at 725-26. Copyright infringement actions do not require these additional inquiries, and Bollea's state law claims are therefore qualitatively different from a copyright infringement action. See Laws v. Sony Music Entm't, 448 F .3d 1134, 1145 (9th Cir. 2006) ("To be clear, we recognize that not every right of publicity claim is preempted by the Copyright Act. Our holding does not extinguish common law or statutory rights of privacy, publicity, and trade secrets ... , so long as those causes of action do not concern the subject matter of copyright and contain qualitatively different elements than those contained in a copyright infringement suit."). Cf Computer Assocs., 982 F .2d at 71 7 (claim is qualitatively different if it requires proof of a breach of fiduciary duty); Harper & Row, Publishers, Inc. v. Nation Enters., 723 F.2d 195,201 (2d Cir. 1983) (claim is qualitatively different if it requires proof of possession and control of chattels), rev 'd on other grounds 4 71 U.S. 53 9 ( 1985). Gawker' s argument for complete preemption therefore fails.

3. Removal Is Not Appropriate under 28 U.S. C. §§ 1338 and 1454.

Title 28, Section 1338(a), of the United States Code grants district courts "original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks." Section 1454 specifies that claims arising under any Act of Congress relating to copyrights may be removed "by any party." Courts interpret the phrase "arising under" in sections 13 31 and 13 3 8( a) identically and "apply the same test to determine whether a case arises under§ 1338(a) as under§ 1331." Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830 (2002); see Gunn, 133 S. Ct. at 1064. Where a well-pleaded complaint does not assert any claims under federal law, neither§ 1331 nor§ 1338(a) confers jurisdiction. See Holmes Group, 535 U.S. at 830. It has already been determined that the First Amended Complaint does not assert any claims under federal law and there is no federal question jurisdiction under§ 1331. See supra Section III(B)(l). Accordingly, jurisdiction is also lacking under§ 1338. [8]

CONCLUSION

Removal provisions are to be construed strictly and all doubts resolved in favor of remand. Miedema, 450 F.3d at 1328. Gawker has not satisfied its burden of proving that subject-matter jurisdiction exists over the First Amended Complaint, whether based on diversity or federal question jurisdiction. Under the Eleventh Circuit's "loose" joinder standards, Heather Clem is not fraudulently joined. Moreover, no federal questions appear on the face of the First Amended Complaint. Bollea's claims do not arise under the laws of the United States, and his passing references to the United States Constitution are insufficient to confer subject-matter jurisdiction. Nor are his claims preempted by the Copyright Act because they are qualitatively different than claims for copyright infringement. Accordingly,

1) Plaintiffs Motion for Remand (Dkt. 20) is GRANTED.

2) This case is REMANDED to the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida.

3) The Clerk is directed to SEND a certified copy of this order to the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida, to TERMINATE all pending motions, and to CLOSE the file.

DONE AND ORDERED this 27th day of March, 2013.

JAMES D. WHITTEMORE
United States District Judge

Copies to:
Counsel of Record

_______________

Notes:

1. Gawker's response (Dkt. 24) inexcusably contains extensive substantive footnotes in an apparent effort to circumvent the page limits prescribed by the Local Rules for the Middle District of Florida. Plaintiffs reply also contains multiple substantive footnotes (see Dkt. 28 at 2, 5, 8) in violation of the Court order that the reply "shall not contain substantive footnotes" (Dkt. 27).

2. Section 934.10(1) provides "[a]ny person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of ss. 934.03-934.09 shall have a civil cause of action against any person or entity who intercepts, discloses, or uses, or procures any other person or entity to intercept, disclose, or use, such communications ..."

3. Any other basis for federal question jurisdiction asserted in Gawker's response (Dkt. 24) but not in the Notice of Removal may not be addressed. See Campbell v. Am. Tours Int'l, LLC, 2013 WL 894797, at* 2 (N.D. Cal. Mar. 8, 2013) (citing Willingham v. Morgan, 395 U.S. 402, 408 (1969)); Wright & Miller, Fed. Practice & Procedure: Jurisdiction § 3 733 at 358 (3d ed. )(When the basis for jurisdiction is not raised in the notice of removal, "[c]ompletely new grounds for removal jurisdiction may not be added and missing allegations may not be furnished.").

4. See Rest. (2d) Torts§ 652D (1976) ("One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public."). The Second Restatement of Tort's formulation of the tort of publication of private facts has been cited approvingly by Florida courts. See, e.g., Williams v. City of Minneola, 575 So. 2d 683, 689 n.5 (Fla. 5th DCA 1991).

5. See Rest. (2 d) Torts § 6528 ( 1976) ("One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.").

6. Gawker also argues that federal jurisdiction is supported by Bollea's previous "argument that Toffoloni establishes a federal constitutional privacy right standing on equal footing with the First Amendment" (Dkt. 24 at 14). This argument does not appear on the face of the First Amended Complaint and therefore may not be considered in removal proceedings. In any event, any such argument by Bollea would be in response to a First Amendment defense asserted by Gawker, which, as a matter of law, cannot give rise to a federal question. See Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 765 (11th Cir. 2010) (a defense that presents a federal question cannot create removal jurisdiction, even if that defense is valid).

7. See also Tortora v. City of Shelton Bd of Fire Comm 'rs, No. 3:12-cv-951 (SRU), 2012 WL 4854694, at *2 (D. Conn. Oct. 11, 2012) (complaint stating claims for (1) defamation; (2) intrusion upon seclusion; (3) false light publicity; (4) intentional infliction of emotional distress; (5) tortious interference with a business relationship; and (6) civil conspiracy did not present a basis for federal question jurisdiction); Santos v. Knight-Ridder, Inc., No. Civ.A.3 :04- CV-275-H, 2004 WL 3127629 (W.D. Ky. Dec. 15, 2004) (refusing to exercise federal question jurisdiction over claims for libel, invasion of privacy, and intentional infliction of emotional distress); Doev. TCF Bank Ill. FSB, No. 96 C 4146, 1997 WL 158297 (N.D. Ill. Mar. 31, 1997) (refusing to exercise pendant jurisdiction over claims for public disclosure of private facts and intrusion into seclusion); Thompson v. Johnson Cnty. Cmty. Coll., 930 F. Supp. 501, 508 (D. Kan. 1996) (refusing to exercise supplemental jurisdiction over plaintiff's pendant state Jaw claim for intrusion upon seclusion).

8. Because there is no federal question upon which to premise jurisdiction, it need not be determined whether Clem's consent to removal was necessary, and if so, whether she properly consented.
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Re: The Hulk Hogan trial that could redefine freedom of expr

Postby admin » Tue Mar 15, 2016 6:52 am

Ex-Gawker Editor Backs Off Testimony in Hulk Hogan Case
By LES NEUHAUS
MARCH 14, 2016

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.


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Albert J. Daulerio, former editor in chief of Gawker Media. Credit Pool photo by Steve Nesius

ST. PETERSBURG, Fla. — The former editor in chief of the website Gawker testified on Monday that he was not being sincere when he said in a videotaped deposition that children over the age of 4 were fair game for sex tapes to be published online.

The former editor, Albert J. Daulerio, sought to clarify his comments under questioning from Gawker’s lawyer, Michael Sullivan. The deposition was played last Wednesday, in a court where a $100 million suit brought by the former wrestler Hulk Hogan, claiming invasion of privacy, is being tried.

In that testimony, Mr. Daulerio was asked by the plaintiff’s lawyer if he could imagine a situation in which a celebrity sex tape would not be newsworthy.

“If they were a child,” Mr. Daulerio replied.

“Under what age?” the lawyer asked.

“Four.”

Gawker issued a statement later that day saying Mr. Daulerio was being flippant. On Monday, he told Gawker’s lawyer that he was not being serious when he made the comments.

In cross-examination, the legal team for Hulk Hogan, whose legal name is Terry G. Bollea, attacked Mr. Daulerio for his seeming insensitivity.

“You think that’s a funny topic to joke about?” asked Shane Vogt, one of the lawyers for the former wrestler.

“No, I don’t,” Mr. Daulerio replied.

A few exchanges later, Mr. Vogt asked Mr. Daulerio, “You were joking about child pornography, were you not?”

Mr. Daulerio deflected the question, saying that he was being sarcastic, but that he regretted the response in the video deposition.

But Mr. Vogt was dogged, showing both Mr. Daulerio’s video deposition on the subject and then introducing a piece of evidence with Mr. Daulerio’s signature, confirming his testimony in the videotaped deposition.

Mr. Vogt persisted, asking if he hadn’t changed his testimony.

Mr. Daulerio said he had not, though he could have.

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Nick Denton, left, founder of Gawker, and a former editor, Albert J. Daulerio, are defendants in the Hulk Hogan case. Credit Pool photo by Stephen Yang

At that point, Mr. Sullivan jumped up, asking if both sides could approach the bench of Judge Pamela M. Campbell. When the proceedings continued, the questioning by Mr. Vogt shifted gears, focusing on Mr. Daulerio’s excitement in posting the video online.

Mr. Daulerio said under questioning that he never sought the permission of Nick Denton, founder of Gawker Media, to publish the video. Mr. Denton, who was sitting in the courtroom on Monday, is a defendant in the case, along with Gawker and Mr. Daulerio. Mr. Bollea testified last week that he had been “completely humiliated” by Gawker’s posting of a video that showed him having sex with the wife of his former best friend.

Mr. Vogt then guided Mr. Daulerio into some of the more lurid details of the process in which he and others at Gawker edited the video and drafted a story to accompany it, complete with several hyperlinks to posts involving other celebrity sex tapes.

The existence of other sex tapes online was brought up by the defense in the morning as a way to show that Gawker was not alone in posting such videos. Mr. Daulerio noted in testimony that Gawker had posted the video of Mr. Bollea several months after TMZ and TheDirty.com had broken the story and posted stills from the video.

Pressed by Mr. Vogt, Mr. Daulerio admitted there was little news value to showing certain portions of the video, like lewd nudity, but that over all the newsworthiness justified posting it.

At the core of the case is whether Mr. Bollea’s celebrity, and his candid public statements about his sex life, outweigh his right to privacy, and whether Gawker’s First Amendment rights trump his claim to confidentiality. If the jury finds for Mr. Bollea and awards him substantial monetary compensation, it could damage Gawker journalistically and financially, though to what extent will not be clear until the case concludes.

Lawyers for Gawker will most likely appeal any decision against them. If Gawker wins, it could set a powerful precedent for the online publishing world.

Late Monday afternoon, the defense called Mr. Denton to the stand, as well as Emma Carmichael, the editor in chief of Jezebel, a Gawker-owned website dedicated to feminist issues.

Mr. Denton’s testimony on Monday ranged from the mundane issues of his background in journalism to his management style at Gawker. A onetime Financial Times foreign correspondent who covered the fall of communism in eastern bloc countries in the late 1980s, he later reported on the banking industry in Britain and the United States before starting Gawker.

Mr. Bollea’s legal team is set to cross-examine Mr. Denton on Tuesday.

The jury is also expected to be shown the one-minute, 41-second video that was posted on Gawker’s website in October 2012. It showed Mr. Bollea having sex with Heather Clem, the wife at the time of Mr. Bollea’s friend Todd Clem, a Florida shock-radio host now known as Bubba the Love Sponge. Mr. Clem may still be called to testify in court, according to both legal teams and the judge.

Gawker’s legal team has maintained that Mr. Bollea has consistently made his sex life a public matter, bragging about his conquests and his penis size on various radio shows, including with Howard Stern and Mr. Clem.
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Re: The Hulk Hogan trial that could redefine freedom of expr

Postby admin » Thu Mar 31, 2016 1:50 am

Hulk Hogan Gets $115M Verdict Against Gawker at Sex Tape Trial
by Eriq Gardner
MARCH 18, 2016

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.


Image

The outcome comes after two weeks of testimony in a first-of-its-kind case where discussions of newsworthiness and decency dominated.

Weighing free speech against privacy, a Florida jury has decided to uphold the sanctity of the latter by turning in a $115 million verdict against Gawker over its 2012 posting of a Hulk Hogan sex tape.

Hogan brought the case three years ago after Gawker, a 13-year-old digital news site founded by Nick Denton, an entrepreneur with an allergy to celebrity privacy, published a video the wrestler claimed was secretly recorded. The sex tape was sensational, showing Hogan — whose real name is Terry Bollea — engaged in sexual intercourse with Heather Cole, the then-wife of his best friend, Tampa-area radio shock jock Bubba the Love Sponge (real name: Todd Alan Clem). Gawker's posting of the Hogan sex tape was accompanied by an essay from then–editor-in-chief A.J. Daulerio about celebrity sex and a vivid play-by-play of the encounter between Hogan and Cole.

In an era when digital networks have reshaped culture, raising tough questions about sharing and prying in society, the jury got to hear two weeks of testimony in a first-of-its-kind sex tape case where discussions of newsworthiness and decency dominated.

Hogan, the first to take the witness stand, attempted to separate his public persona from his true and private self. "It's turned my world upside down," he testified about Gawker's posting. His many interviews with press outlets, some addressing his sexual boasts and endeavors, became the subject of a heated cross-examination. "The person sitting here under oath is Terry Bollea, and I don't lie under oath," said Hogan.

His attorneys also played depositions conducted with Denton and Gawker staffers, who had to explain tasteless jokes and their boundary-pushing philosophies on what's appropriate to publish. "I believe in total freedom and information transparency," said Denton. "I'm an extremist when it comes to that." Many of those same Gawker hands later took the witness stand to put their journalism in a more flattering light, although Daulerio admitted Hulk Hogan's penis isn't newsworthy.

The trial also featured less salacious elements, with experts delving into the media business through discussion of digital marketing and web analytics. One of Hogan's experts testified the benefit to Gawker from the sex tape was $15 million, while another, on behalf of the defendant, told the jury it was just $11,000.

The mysterious background of the sex tape was explored by Gawker: Who knew a taping was happening? Was it a publicity stunt? But Gawker couldn't get Clem, whom they desperately wanted, on the witness stand to address conflicting accounts of who knew about the taping. Nor could they discuss many of the racist comments that Hogan had made during his sexual encounter with Cole to set up a possible argument that Hogan had an ulterior motive for the lawsuit.

A Florida appeals court ordered the unsealing of court records — including text messages between Hogan and Bubba, Bubba's deposition testimony, what the FBI was told during its investigation, and a $5,000 settlement agreement between Hogan and Bubba — but none of that made it into the trial thanks to Florida Circuit Judge Pamela Campbell's pretrial rulings that strongly favored Hogan. No part of the actual sex tape itself — including the excerpts published by Gawker — was shown to the jurors.

Nevertheless, the trial, which resembled the Scopes trial insofar as the amount of publicity attracted by a case centered on free speech and concerns about morality, provoked a discussion of ethics and boundaries in media like no other. One journalism professor, acting as an expert for Hogan, introduced his "Cheerios test" — whether readers could digest their breakfast while reading — with Hogan's attorneys bringing up Caitlyn Jenner, Madonna, Magic Johnson and others to probe whether it mattered if a celebrity injects their personal life into the public arena. Even Thomas Jefferson's name came up, with that same witness, Mike Foley, agreeing that it was good that the media speaks in different voices. "That was the original concept by Thomas Jefferson," said Foley, referring to the First Amendment.

Ultimately, the case became a battle, at least indirectly, between the First Amendment, guaranteeing free speech and a free press, and the Fourteenth Amendment, where courts have determined that a right to privacy derives under equal protection of life, liberty and property. Like many states, Florida has enacted statutes that guard against intrusions on seclusion and privacy of communications. Hogan also won on his right of publicity claim.

"Do you think the media can do whatever they want?" asked Hogan's attorney Ken Turkel in closing arguments.

"We don't need the First Amendment to protect what's popular," responded Gawker attorney Michael Sullivan in his own closing. "We need a First Amendment to protect what's controversial."

"This is not about political speech," rebutted Turkel to the jury. "This case is unique. … You're not going to condemn someone's right to engage in speech. You're balancing the right to make the speech versus privacy rights."

In reaching its verdict, the jury tipped that scale toward privacy. Hogan sobbed, and after the outcome became clear, appeared relieved more than happy. The court will reconvene next week when the judge could decide to award punitive damages to Hogan.

A stunned-looking Nick Denton watched from the gallery and took a deep breath. Gawker already has indicated it will appeal. The focus of the coming proceedings likely will be whether the First Amendment should have precluded claims and whether Gawker got a fair trial.

Denton delivered a statement in response to 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. "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."

Hogan's legal team hailed the outcome: "We're exceptionally happy with the verdict. We think it represents a statement as to the public's disgust with the invasion of privacy disguised as journalism. The verdict says no more."
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Re: The Hulk Hogan trial that could redefine freedom of expr

Postby admin » Thu Mar 31, 2016 1:52 am

Gawker Trial: Editor Admits Hulk Hogan's Penis Isn't Newsworthy
by Eriq Gardner
MARCH 14, 2016

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.


A.J. Daulerio, who wrote the story about Hogan's sex tape, testifies that he was "amused" by it, and faces a tough cross-examination.

Having been posed as the big, bad news organization that skirts privacy rights by posting scandalous material that steps over the line of human decency, Gawker is now presenting its defense in Hulk Hogan's $100 million trial in Florida.

Last week, Hogan's attorneys trotted out taped depositions from Gawker staffers faced with questions about crude jokes made and a lack of consideration about the plaintiff's feelings in the October 2012 publishing of Hogan's sex tape. That included A.J. Daulerio, the former Gawker editor-in-chief who wrote the essay that accompanied the controversial sex tape. Daulerio said during his own deposition he would only draw the line on running sex tapes for those featuring children under the age of 4. The flippant remark garnered enough media buzz that Hogan's lawyers showed it to the jury twice.

On Monday, Daulerio was the first person called to the witness stand by Gawker in a seeming effort to establish that great care was taken before posting the video. He was also asked about his young children remark. Daulerio says he wasn't being serious. "[The deposition] was a very long day," he said. "Yes, 100 percent [Hogan's attorneys knew I was being sarcastic]. That's not my view."

Facing blistering questions on cross-examination from Hogan's attorney Shane Vogt, Daulerio acknowledged that child pornography wasn't a proper subject to joke about, that he was testifying under oath, and had three lawyers present with him. "If I had the opportunity to insert that I was joking, I should have," said Daulerio, who admitted that he signed a transcript of his deposition as accurate.

Daulerio's appearance at trial became most heated toward the end of his testimony when Vogt fired off a series of rapid questions seemingly intended to get under Daulerio's skin. Vogt asked the editor about smirking during his deposition upon a discussion of the First Amendment, why his recollection of events didn't match Gawker owner Nick Denton's and whether he understood that there are kids out there who were interested in Hogan and would search for the video. After Daulerio acknowledged that he had told other Gawker staffers that Hogan's penis should be shown in the video, Vogt zeroed in on the topic.

"Mr. Bollea's penis had no news value, right?" asked Vogt.

"No," responded Daulerio.

"It wasn't newsworthy, right?"

"No."

"There was no news value to showing them having sex?"

"No, not necessarily."

Daulerio says he was making a social commentary on celebrity sex videos, and during direct examination from Gawker attorney Mike Sullivan, he defended the posting and a viewpoint that there are limitations on celebrity privacy.

"Sometimes you can come across as callous," said Daulerio. "But that's my job as a journalist. It's to put something out there that's fair and accurate. … Public figures live a different life."

"They do say," Mr. Adams said to Old Man Warner, who stood next to him, "that over in the north village they're talking of giving up the lottery."

Old Man Warner snorted. "Pack of crazy fools," he said. "Listening to the young folks, nothing's good enough for them. Next thing you know, they'll be wanting to go back to living in caves, nobody work any more, live that way for a while. Used to be a saying about 'Lottery in June, corn be heavy soon.' First thing you know, we'd all be eating stewed chickweed and acorns. There's always been a lottery," he added petulantly. "Bad enough to see young Joe Summers up there joking with everybody."

"Some places have already quit lotteries," Mrs. Adams said.

"Nothing but trouble in that," Old Man Warner said stoutly. "Pack of young fools."

-- The Lottery, by Shirley Jackson


Daulerio testified that after TMZ reported about the existence of the sex tape in March 2012, he received an email from Tony Burton, a manager representing various radio personalities, who wanted to send along the sex tape for review. Burton didn't demand money, says Daulerio. The package came when Daulerio was on vacation. When he returned to the office and took a look at what was sent to him, he saw Hogan having sex with Heather Clem, the wife of Tampa radio shock jock Bubba the Love Sponge. According to Daulerio, Bubba's voice can be heard saying, "You guys go have fun now."

"I was amused by it," says Daulerio. "I grew up watching Hulk Hogan and knew him as a character for most of his life. This was not a situation I ever expected to watch him in."

Daulerio added it was "strange" to see Hogan sleeping with his friend Bubba's wife, seemingly with Bubba's permission. He told a subordinate to take the 30-minute tape and cut it down to some excerpts. Daulerio said he wanted the more "innocuous" discussions between Hogan and Clem to be shown given what he was going to write about celebrity sex tapes as well as the sexual acts themselves. Ultimately, one-minute, 47 seconds of the sex tape — nine seconds of actual sex — was published with subtitles. "I really wanted to focus on the things being said in the sex tape," said Daulerio, who also explained why he labeled it "NSFW" (not safe for work), provided links to other celebrity sex tapes, and acted facetiously by headlining the story, "Even For A Minute, Watching Hulk Hogan Have Sex In A Canopy Bed Is Not Safe For Work But Watch It Anyway."

The former Gawker editor told the jury that a bump in traffic happened after Hogan went on a publicity tour, especially when the wrestler appeared on Howard Stern's radio show. Another traffic spike occurred when Hogan filed his lawsuit.

"It was an extremely popular story," said Daulerio. "I was pleasantly surprised by that."

Daulerio also explained why he didn't contact Hogan's camp for their opinion of the sex tape. "They had already commented on the sex tape," says Daulerio, referring to Hogan's media interviews. "I was satisfied with everything I saw on the tape. I needed no clarification."

On cross-examination, Daulerio was asked whether Nick Denton was a "rule-breaker" and whether he had a discussion with his boss about the sex tape prior to posting. Daulerio said there wasn't any such conversation, but after being shown Denton's own statements that portrayed Daulerio as being excited about the sex tape, Daulerio said, "I think [Denton] was confusing two different conversations."

Daulerio mostly kept his cool throughout his appearance on the witness stand, only flashing a tinge of sarcasm when telling the jury he showed Hogan's penis "because that’s sometimes what happens when people have sex" and, "No, I was not surprised there was more than one person who was visiting the site to see the sex tape."

Vogt read some of the things that Daulerio had written in his October 2012 post — how Hogan's penis was "the size of a thermos you'd find in a child's lunchbox" and how "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."

"You could have commented without showing the tape?" Vogt asked.

"I could have," said Daulerio.

"You believed publishing the sex tape would bring traffic to the site, right?"

"Again, the whole point of publishing is to bring traffic. This is the way I chose to present the story."

"You didn't care whether it emotionally distressed him, right?"

"That's not my job."


Tina Dalgleish cobbled together a story from what had effectively been a non-event, and two days before it appeared in the paper, she phoned Mr. Lewis, as was customary, to inform him that it would be in the next edition of the paper.

That Sunday morning Arnold Lewis's body was found in his car. He had killed himself by inhaling exhaust fumes. He was 52.

At the inquest, counsel read Mr. Lewis's suicide note, and asked Dalgleish, "Does that not upset you?"

"No not really. I can see that it might upset his wife, but it doesn't upset me."

-- Suicide of Arnold Lewis: Excerpt From "News of the World?: Fake Shiekhs and Royal Trappings", by Peter Burden, Julia Dillon


"It didn't matter that it was a morbid and sensation-prying, did it?"

"No it didn't."


Ben, the chef, cried when Mazher told him his little "sexy mini-break" was being featured in the News of the World. Then he rang the editor, Patsy Chapman, to tell her that he was divorced, and that if the story were published, he would be barred from ever seeing his children again. If that happened, he would kill himself.

He pleaded with her, but hard-nosed Patsy told him if she listened to every sob-story about why she shouldn't run a story, nothing would ever get printed.

Within a fortnight the man had hanged himself in his French house.

The photographer, Steve Grayson, was horrified, and felt directly responsible for what had happened -- his big, revealing, semi-naked shot of Roxanne had been a major part of the story.

Mazher Mahmood, on the other hand, told Steve that as far as he was concerned, the man was a fool to have been so indiscreet and he'd got what was coming to him.

-- Suicide of Ben Stronge: Excerpt From "News of the World?: Fake Shiekhs and Royal Trappings", by Peter Burden, Julia Dillon
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Re: The Hulk Hogan trial that could redefine freedom of expr

Postby admin » Thu Mar 31, 2016 3:06 am

Gawker Trial: Hulk Hogan Awarded $25 Million More in Punitive Damages
by Eriq Gardner
MARCH 21, 2016

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.


A Florida jury awards $25 million to punish the news site for posting a sex tape (on top of an earlier $115 million verdict).
A Florida jury has awarded Hulk Hogan just over $25 million in punitive damages in his sex tape lawsuit against Gawker Media. That's $15 million from Gawker, $10 million from Gawker owner Nick Denton and $100,000 from former Gawker editor-inchief A.J. Daulerio.

The decision brings the total verdict to $140.1 million, counting the $115 million in compensatory damages that came after the end of a two-week trial from which Hogan emerged victorious on his claims of privacy intrusion, publicity rights violation and infliction of emotional distress.

The huge award is meant to punish Gawker for its October 2012 posting of a sex tape video featuring Hogan, whose real name is Terry Bollea. Gawker argued that the use of the video in its story was newsworthy and should be protected by the First Amendment, but the defendant couldn't overcome Hogan's argument that privacy outweighed free speech in this case.

The jury was instructed that they should award punitive damages to deter defendants and others similarly situated and shouldn't award an amount that would financially destroy Gawker nor make it unreasonably large in relation to compensatory damages. The parties stipulated that Gawker's pre-judgment value was $83 million, that the news company's revenue last year was $48.7 million, and that Denton's assets from his ownership in various companies was worth $276 million. As for Daulerio, both sides acknowledged that he was still in debt from student loans.

"You send a message," said Hogan attorney Ken Turkel to the jury before the punitive damages award was announced. "You make a statement. You draw a line when it comes to a recording in a private bedroom."

"$115 million is punishment enough," said Gawker attorney Mike Berry. "The amount you have rendered in your verdict is already far beyond their means … that amount is debilitating … my clients have heard your decision."

Berry added that the decision would "send a chill" through news reporters everywhere and would have "far-reaching ramifications."


Florida judge Pamela Campbell will likely be asked to trim the awards. Regardless of what she decides, Gawker has indicated that it intends to appeal the verdict.

After the announcement of punitive damages, Gawker general counsel Heather Dietrick said, "There is so much this jury deserved to know and, fortunately, that the appeals court does indeed know. So we are confident we will win this case ultimately based on not only on the law but also on the truth."

Hogan's legal team hopes the verdict sends a message.

"We are extremely happy with the verdict and Mr. Bollea feels vindicated," they said in a statement. "Our victory will also deter others from victimizing innocent people. This verdict now requires those organizations to respect privacy and if not pay the price for failing to do so."
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