Hulk Hogan v. Gawker: A Fight Between Privacy and Free Speech

ST PETERSBURG, FL - MARCH 08:  NY POST OUT  Terry Bollea, aka Hulk Hogan, testifies in court during his trial against Gawker
ST PETERSBURG, FL - MARCH 08: NY POST OUT Terry Bollea, aka Hulk Hogan, testifies in court during his trial against Gawker Media at the Pinellas County Courthouse on March 8, 2016 in St Petersburg, Florida. Bollea is taking legal action against Gawker in a USD 100 million lawsuit for releasing a video of him having sex with his best friends wife. (Photo by John Pendygraft-Pool/Getty Images)

You probably know that former pro wrestler Hulk Hogan is suing Gawker for $100 million for posting a video that included a brief snippet of him having sex with a friend's wife. And the fact that you probably know this helps explain why this is an important case and why Hulk Hogan has no claim.

Most civil trials are not very intriguing and they do not receive much media attention. The cases that draw the greatest public interest tend to be criminal, like the notorious O.J. Simpson murder trial. We understand why: a lot is at stake in most criminal cases.

That the media and public have little interest in civil cases became clear to me in the 1990s, when I served on a local advisory committee to an experimental program that allowed cameras into federal courtrooms. The program yielded few media requests to bring cameras into trials for a simple reason: it was limited to civil cases. It turned out that the media had no burning desire to monitor litigation about patents, social security claims, or the Railway Labor Act.

But Hulk Hogan's lawsuit is different. As of the writing of this op-ed the New York Times has published more than half-a-dozen articles about the trial. Every major media entity appears to be covering it, many quite closely.

Why the difference? Because the trial is about Hulk Hogan, a champion not only of throws and chokeholds but of providing us with too much information about his sex life. For example, Hogan has chatted with Howard Stern about such matters--with all the subtlety and nuance you might expect in that context.

Now, here's where things get metaphysical. For purposes of this lawsuit, Hogan claims that he is not the guy who said those things. Rather, he argues, the guy who said those things is the character he portrays.

Or, to put it differently, Hogan wants to persuade the jury that he is not the loud, boastful, flamboyant, over-the-top character that the public came to know and love and laugh with. No, he is just some guy who slept with his friend's wife.

In most instances this would be an unusual way to try to claim the moral high ground. But Hogan's case depends upon this strategy. After all, it is hard--if not impossible--for someone who has spent time inviting the public into his bedroom to say that it has no business there. Hogan's best shot is therefore to contend that he isn't the person who did the inviting.

This seems like a tough sell. Indeed, one of the striking things about the Stern interview is that Hogan is decidedly not "in character." He's not some wrestler geared up in a costume, waving his arms around madly, screaming at the top of his lungs. He's a guy in a t-shirt and jeans talking about his back injury and his personal finances--and his sexual practices.

This does not mean that celebrities can never have invasion of privacy claims; they can. It does not even mean that Hulk Hogan cannot have one; surely, like all of us, he has things he has kept to himself. But, having effectively invited the public to become voyeurs of this part of his life, it seems oddly disingenuous for him to express outrage that Gawker looked through the window.

We could dismiss the case as an odd and unimportant one-off curiosity but for two deeply unsettling concerns that it raises.

First, the magnitude of Hogan's $100 million damage claim could have a serious chilling effect on all media who report on public figures and their lifestyles. As the Supreme Court has recognized, the threat of large tort verdicts against the media can inhibit free speech every bit as effectively as government censorship.

Second, and in my view more importantly, Hogan's case could create a dangerous precedent within privacy law. If he is successful, his case could inspire a strategy of privacy-bait-and-switch, where a celebrity lures the media into reporting on a presumptively private topic and then ambushes them with a lawsuit seeking millions of dollars when they do so.

In the contest between privacy and free speech interests, that's not a fair fight. It's a grabbed-from-behind body slam.

And it could leave the First Amendment gravely--perhaps irretrievably--injured.

Len Niehoff is a professor at the University of Michigan Law School, where he teaches courses in media law.