Filing # 29588636 E-Filed 07/13/2015 05:17:21 PM IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA TERRY GENE BOLLEA professionally known as HULK HOGAN, Case No. 12012447 CI-011 Plaintiff, vs. HEATHER CLEM; GAWKER MEDIA, LLC aka GAWKER MEDIA, et al., Defendants. ______________________________________/ EMERGENCY MOTION FOR CLARIFICATION AND CONFIRMATION THAT AGREED PROTECTIVE ORDER AND STIPULATED PROTOCOL GOVERN ALL DOCUMENTS, RECORDS AND MATERIALS PRODUCED IN RESPONSE TO FOIA REQUEST OF GAWKER MEDIA, LLC AND ITS ATTORNEYS AND REQUEST FOR STATUS CONFERENCE Plaintiff Terry Gene Bollea, professionally known as Hulk Hogan (―Mr. Bollea‖), by and through his undersigned counsel, hereby moves for an order clarifying and confirming that the July 25, 2013 Agreed Protective Order Governing Confidentiality (―Protective Order‖) and the October 20, 2014 Stipulated Report and Recommendation of the Special Discovery Magistrate (the ―Stipulated Protocol‖) apply to and govern all documents, records and materials produced by the United States Government (the FBI and the Executive Office of the United States Attorney) to counsel for Defendants Gawker Media, LLC (―Gawker‖), Nick Denton, and A.J. Daulerio (collectively the ―Gawker Defendants‖) in response to any Freedom of Information Act (―FOIA‖) Request. Mr. Bollea states in support as follows: 1. On May 19, 2015, Gawker and its counsel, Gregg Thomas, brought an action in the U.S. District Court for the Middle District of Florida seeking a court order directing the United 1 States Government to produce its investigative files related to the FBI investigation of an extortion attempt against Mr. Bollea (the ―FOIA Lawsuit‖). 2. Gawker and Thomas initiated the FOIA Lawsuit solely for the purpose of discovery in this state court case by Mr. Bollea against Gawker Defendants. 3. All discovery in this case is governed by this Court’s July 25, 2013 Protective Order. 4. Gawker and Thomas sought the United States Government’s investigative files under FOIA. However, due to Mr. Bollea’s privacy rights, the United States Government would not produce its files without authorization. 5. As part of the discovery process in this case, Gawker moved to compel Mr. Bollea and his counsel to provide Certificates of Identity and Authorization to Release Information to Another Person (the ―Authorizations‖) under FOIA. 6. The Court granted Gawker’s motion and ordered Mr. Bollea and his attorneys to provide Authorizations on February 26, 2014. 7. On October 14, 2014, the parties executed a Stipulated Protocol for the FOIA request, a copy of which is attached as Exhibit A, providing that: a) any responsive documents would be provided from the government to Gawker’s counsel and treated as ―Highly Confidential – Attorney’s Eyes Only‖ under this Court’s Protective Order; and b) any videos would be produced by the government directly to Judge James Case (Ret.). 8. On November 7, 2014, Gawker and Thomas sent new FOIA requests to the United States Government under the Stipulated Protocol. 2 9. The United States Government again refused to provide its investigative files, citing the law enforcement privilege. The FOIA Lawsuit ensued. 10. On June 24, 2015 and July 2, 2015, the Honorable Susan Bucklew issued certain orders in the FOIA Lawsuit requiring the United States Government to produce certain records, as well as audio and video recordings. The video recordings, contained on three DVDs, were handdelivered to this Court by attorneys from the law firms of Bajo Cuva Cohel & Turkel, and Thomas & LoCicero, on Monday, June 29, 2015, at approximately 11:30 a.m., and the Court had six attorneys (three from each side) watch the video recordings contained on the three DVDs on Tuesday, June 30, 2015, at approximately 2:00 p.m. The remaining materials, however, which include approximately two audio CDs and hundreds of pages of documents, were produced or are being produced by the United States Government directly to Gawker’s counsel. 11. Mr. Bollea intervened in the FOIA Lawsuit to ensure that this Court’s Protective Order and the Stipulated Protocol were being followed. To this end, Mr. Bollea filed a motion for Protective Order in the FOIA Lawsuit. 12. In a written order dated July 1, 2015, and at a hearing in court on July 2, 2015, Judge Bucklew stated that Mr. Bollea must seek relief from this Court to enforce any confidentiality stipulations or orders governing the records produced in the FOIA Lawsuit, including documents and audio and video recordings produced by the United States Government. 13. Counsel of record for the government, Erik Kenneth Stegeby, has also stated that he cannot provide any documents to Mr. Bollea or his counsel absent a court order, and that Mr. Bollea should seek relief from this Court with respect to the United States Government’s records, including to receive a copy of the documents and audio recordings produced to counsel for Gawker Defendants. 3 14. The records produced by the United States Government include extremely sensitive information that implicate the privacy rights of Mr. Bollea and third parties. 15. Mr. Bollea’s Authorization to release these documents under FOIA is limited solely to this Court and Gawker’s counsel for the exclusive purpose of discovery in this case—and therefore subject to the Protective Order and the Stipulated Protocol. 16. Records produced by the United States Government to date include information regarding Mr. Bollea’s private sex life, the private sex life of Heather Cole and Bubba Clem, and sensitive law enforcement information regarding the extortion investigation. Thus, it is crucial that the parties’ Stipulated Protocol and the Protective Order with respect to the confidentiality of this information and all associated United States Government records be confirmed in an Order, and followed. 17. Pursuant to Judge Case’s October 20, 2014 Report and Recommendation based on the Stipulated Protocol, any and all documents, records and materials produced by the United States Government in response to the FOIA request of Gawker and/or their counsel are automatically designated as ―Highly Confidential – Attorney’s Eyes Only.‖ 18. Accordingly, Mr. Bollea requests that this Court enter an Order confirming that the parties’ Stipulated Protocol and the Protective Order apply to any and all records, documents, recordings and other materials produced by the United States Government. Mr. Bollea also requests that the following definition for the term ―Highly Confidential – Attorney’s Eyes Only‖ be applied to such materials: such material may only be received or viewed by: (a) attorneys of record for the parties in this litigation, and staff of such attorneys to whom it is necessary that the material be shown for purposes of this litigation; (b) the Court and its staff, and any mediator, provided they are filed under seal or otherwise provided to the Court or mediator outside of the public docket; and 4 (c) any other person designated by the Court after notice to all parties and an opportunity to be heard. 19. Mr. Bollea further requests that all DVDs provided by the United States Government to this Court be kept under seal, and that the Order specifically rule that all other records, documents and materials that have been or will be produced by the United States Government are designated ―Highly Confidential – Attorney’s Eyes Only‖ and that counsel for Gawker Defendants provide to Mr. Bollea’s counsel a copy of all records, documents and materials produced by the United States Government pursuant to the terms of the Stipulated Protocol. 20. Mr. Bollea further requests that the Court specifically rule that the Authorizations provided pursuant to this Court’s Order are applicable solely to Gregg Thomas, Esq. (as stated in the Authorizations), and solely with respect to discovery in this lawsuit. This Court’s intention in ordering Mr. Bollea to provide the Authorizations was not to allow anyone other than Gawker’s Defendants’ counsel (Mr. Thomas) to be provided with the United States Government’s records concerning the investigation into the extortion of Mr. Bollea. 21. Mr. Bollea further requests that the Court schedule a status conference as expeditiously as possible (preferably on July 17, 2015) to discuss the status of the United States Government’s production to Gawker and its counsel, and procedures for handling these sensitive documents and materials. CERTIFICATION OF NECESSITY OF REQUEST FOR EMERGENCY HEARING I HEREBY CERTIFY that just cause exists to request a consideration of this motion on an emergency basis based upon the following: A. In an article titled ―Hulk v. Gawker, the story so far‖ posted by Nick Denton on July 10, 2015 (a copy of which is attached as Exhibit B), Mr. Denton states: 5 There will be a third act which we believe will center on the real story: the additional recordings held by the FBI, the information in them that is Hulk Hogan’s real secret, and irregularities in the recordings which indicate some sort of cover-up. This statement raises serious concerns that the protections applicable to the United States Government’s records have already been and/or will be violated. B. The FBI served Notice in the FOIA Lawsuit on July 10, 2015, a copy of which is attached as Exhibit C, indicating that it is producing re-processed video footage to this Court. WHEREFORE, Plaintiff Terry Bollea respectfully requests that this Court enter an order on the Special Discovery Magistrate’s October 20, 2014 Report and Recommendation, Stipulated Protocol and Protective Order, which also contains the clarifications discussed herein, and that the Court set a status conference (preferably on July 17, 2015) to discuss the status of the United States Government’s production to Gawker and its counsel, and procedures for handling these sensitive documents and materials. Dated: July 13, 2015. Respectfully submitted, /s/ Kenneth G. Turkel Kenneth G. Turkel, Esq. Florida Bar No. 867233 Shane B. Vogt Florida Bar No. 0257620 BAJO CUVA COHEN TURKEL 100 North Tampa Street, Suite 1900 Tampa, Florida 33602 Tel: (813) 443-2199 Fax: (813) 443-2193 Email: kturkel@bajocuva.com Email: svogt@bajocuva.com -and- Charles J. Harder, Esq. PHV No. 102333 Jennifer J. McGrath, Esq. PHV No. 114890 HARDER MIRELL & ABRAMS LLP 6 1925 Century Park East, Suite 800 Los Angeles, CA 90067 Tel: (424) 203-1600 Fax: (424) 203-1601 Email: charder@hmafirm.com Email: jmcgrath@hmafirm.com Counsel for Plaintiff 7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by EMail via the e-portal system this 13th day of July, 2015 to the following: Barry A. Cohen, Esquire Michael W. Gaines, Esquire The Cohen Law Group 201 E. Kennedy Blvd., Suite 1950 Tampa, Florida 33602 bcohen@tampalawfirm.com mgaines@tampalawfirm.com jhalle@tampalawfirm.com mwalsh@tampalawfirm.com Counsel for Heather Clem Gregg D. Thomas, Esquire Rachel E. Fugate, Esquire Thomas & LoCicero PL 601 S. Boulevard Tampa, Florida 33606 gthomas@tlolawfirm.com rfugate@tlolawfirm.com kbrown@tlolawfirm.com abeene@tlolawfirm.com Counsel for Gawker Defendants David R. Houston, Esquire Law Office of David R. Houston 432 Court Street Reno, NV 89501 dhouston@houstonatlaw.com Seth D. Berlin, Esquire Paul J. Safier, Esquire Alia L. Smith, Esquire Michael D. Sullivan, Esquire Levine Sullivan Koch & Schulz, LLP 1899 L. Street, NW, Suite 200 Washington, DC 20036 sberlin@lskslaw.com psafier@lskslaw.com asmith@lskslaw.com msullivan@lskslaw.com Pro Hac Vice Counsel for Gawker Defendants krosser@houstonatlaw.com Michael Berry, Esquire Levine Sullivan Koch & Schultz, LLP 1760 Market Street, Suite 1001 Philadelphia, PA 19103 mberry@lskslaw.com Pro Hac Vice Counsel for Gawker Defendants Kirk S. Davis, Esquire Shawn M. Goodwin, Esquire Akerman LLP 401 E. Jackson Street, Suite 1700 Tampa, Florida 33602 kirk.davis@akerman.com shawn.goodwin@akerman.com Co-Counsel for Gawker Defendants Timothy J. Conner Holland & Knight LLP 50 North Laura Street, Suite 3900 Jacksonville, FL 32202 timothy.conner@hklaw.com Charles D. Tobin Holland & Knight LLP 800 17th Street N.W., Suite 1100 Washington, D.C. 20006 charles.tobin@hklaw.com Attorneys for Intervenors, First Look Media, Inc., WFTS-TV and WPTV-TV, Scripps Media, Inc., WFTX-TV, Journal Broadcast Group, Vox Media, Inc., WFLA-TV, Media General Operations, Inc., Cable News Network, Inc., Buzzfeed and The Associated Press. 8 Allison M. Steele Rahdert, Steele, Reynolds & Driscoll, P.L. 535 Central Avenue St. Petersburg, FL 33701 amnestee@aol.com asteele@rahdertlaw.com ncampbell@rahdertlaw.com Attorneys for Intervenor Times Publishing Company /s/ Kenneth G. Turkel Attorney 9 Filing 29588636 E?Filed 07/13/2015 05:17:21 PM EXHIBIT A to Plaintiff?s Emergency Motion for Clari?cation and Con?rmation that Agreed Protective Order and Stipulated Protocol Govern All Documents, Records and Materials Produced in Response to OIA Request of Gawker Media, LLC and its Attorneys and Request for Status Conference OCT 22 2011, IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA TERRY GENE BOLLEA professionally known as HULK HOGAN, Plaintiff, Case No. 12012447c1-01 1 HEATHER CLEM, et al., Defendants. STIPULATED REPORT RECOMMENDATION Plaintiff Terry Gene Bollea and Defendant Gawker Media, LLC jointly stipulate to the protocol for the Freedom of Information Act request to be made by Gawker?s counsel as outlined in the correspondence attached hereto as Exhibit 1. Dated: October 1% 2014 Respectfully submitted, HARDER MIRELL ABRAMS LLP THOMAS LOCICERO Z7 Bx?/ . By: Charles J. Harder Gregg D. Thomas Pro Hac Vice Number: 102333 Florida Bar No.: 223913 Douglas Mirell Rachel E. Fugate Pro I-lac Vice Number: 109885 Florida Bar No.: 0 M4029 HARDER MIRELL ABRAMS LLP 601 South Boulevard 1925 Century Park East, Suite 800 PO. Box 2602 (33601) Los Angeles, CA 90067 Tampa, FL 33606 Telephone: (424) 203?1600 Telephone: (813) 984-3060 Fax: (424) 203?1601 Facsimile: (813) 984-3070 and and Kenneth G. Turkel, Esq. Seth D. Ber ?11 Florida Bar No. 867233 Pro Hac Vice Number: l03440 Christina K. Ramirez, Esq. MiChael Sullivan Florida Bar No. 954497 Pro Hac Vice Number: 53347 BAJO CUVA COHEN TURKEL Michael Berry 100 North Tampa Street, Suite 1900 Tampa, FL 33602 Telephone: (813) 443~2199 Fax: (813) 443-2193 kmrkel@bajocuva.com cramirez@bajocuva.com Counsel Plainn? eriy Gene Bollea Copies furnished to: Counsel of Record Pro Mac Vice Number: 108191 Alia L. Smith Pro Hae Vice Number: 104249 Paul J. Sa?er Pro Hac Vice Number: 103437 Julie B. Ehrlich Pro Hac Vice Number: 108190 LEVINE SULLIVAN KOCH SCHULZ, LLP 1899 Street, NW, Suite 200 Washington, DC 20036 Telephone: (202) 508-1 122 Facsimile: (202) 861~9888 asmilh@iskslaw.com Counsel for Defendant vaker Media, LLC so go. 313%? ?James R. Case Special Discovery Magistrate CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 5 day of October, 2014, I caused a true and correct copy of the foregoing to be served electronically upon the following counsel of record at their respective email addresses via the Florida Courts E-Filing Portal: Kenneth G. 'l?urkel, Esq. David Houston, Esq. kturkel@BajoCuva.com Law Of?ce of David Houston Christina K. Ramirez, Esq. dhouston@houstonatlaw.com cramirez@BajoCuva.com 432 Court Street Bajo Cuva Cohen Turkel, P.A. Reno, NV 89501 100 N. Tampa Street, Suite 1900 Tel: (775) 786-4188 Tampa, FL 33602 Tel: (813) 443-2199 Fax: (813) 443-2193 Charles J. Harder, Esq. Douglas E. Mirell, Esq. Harder Mirell Abrams LLP 1925 Century Park East, Suite 800 Los Angeles, CA 90067 Tel: (424) 203-1600 Fax: (424) 203~l 601 Attorneysfor Plaintiff Barry A. Cohen, Esq. Michael W. Gaines Barry A. Cohen Law Group 201 East Kennedy Boulevard, Suite 1000 Tampa, FL 33602 Tel: (813) 225-1655 Fax: (813) 225-1921 Attorneysfar Defendant Heather Clem Gregg 7710mm Attorney LEVINE SULLIVAN KOCH LLP 1760 Market Street Suite 1001 Philadelphia. PA 19103 (215) 988-9778 I Phone (215) 988-9750 Fax Michael Berry (215) 9889773 September 29, 2014 VIA E-MAIL Charles J. Harder, Esq. Harder irell Abrams LLP I925 Century Park East, Suite 800 Los Angeles. CA 90067 Re: Bollea v. Clem, er No. 12012447-Cl-Oll (Fla. Cir. Ct.) Dear Charles: I write to follow up our conversations about a mutually agreeable protocol for our Freedom of Information Act request seeking records concerning the federal govemment?s investigation relating to the sex tape(s) involving plaintiff. As Seth, you, and I discussed, we understand that plaintiff ?nnly believes that these records are not relevant and that our request for this information is not reasonably calculated to lead to the discovery of admissible evidence. We, in turn, disagree with plaintiffs beliefabout the records? relevance and his position that Gawker and its counsel should not be able to review certain materials that might be in the govemment?s ?les without the Court reviewing them first. Nevertheless, both sides recognize that the Court has issued rulings that bear on these issues, and. in the spirit of compromise and in an effort to move the process along, we have agreed to establish a protocol for facilitating the FOIA request and subsequent review ol?any records provided by the government, without intending to waive our respective positions in connection with earlier rulings by the Court. Based on our discussion, I set out below what I understand we agreed to in principle. Both sides understand that this agreement is intended only to address the procedure with respect to the FOIA request. Each party is preserving its rights and positions concerning the discoverability, relevance, or admissibility of any material the government produces in response to the FOIA request, and each party is preserving its right to challenge Judge Case?s rulings. including any rulings on a party?s con?dentiality designations: EXHIBIT Now Viv-t Pumrh-Lm Damn-r LEVINE SULLIVAN LSKS Charles J. Harder. Esq. September 29, 2014 Page 2 Counsel for the Gawker defendants, along with counsel for plainti??, will call the US. Attorney?s of?ce and/or FBI before Gawker?s counsel makes the FOIA request to explain our agreed upon protocol and seek their guidance on how best to ensure the govemment?s assistance in complying with it. Plaintiff and his counsel will provide signed authorizations for the release of records to the Gawker defendants. Gawker will treat the Social Security numbers on the authorizations as ?Highly Con?dential - Attorney?s Eyes Only? and will not disseminate them to anyone other than in submitting the FOIA request to the government. . Counsel for the Gawker defendants will make the FOIA request, copying plaintiffs counsel. The request will note that plaintiff believes that records relating to the investigation are not relevant to this litigation, but he and his counsel have provided signed FOIA waivers based on a court order. We will provide a dra? of the request to you before submitting it to the government, for you to review and revise as it pertains to plaintiff?s position. Alternatively, if plaintiff prefers, we will include a separate letter from you stating plaintiffs position. Responsive Documents: Any documents that Gawker?s counsel receives from the government will be treated as ?Highly Con?dential - Attomey?s Eyes Only? pending plaintiffs review of the documents. Gawker?s counsel will FedEx copies of the documents to plaintiffs counsel within two business days of receiving them. Plaintiff then will have 30 days from the date of receipt to review the documents and decide whether to designate any of them as ?Con?dential? under the Protective Order or ?Highly Con?dential Attorney?s Eyes Only? under Judge Campbell?s April 23, 2014 ruling. DVDs or Other Video Footage: In the call with the government and in the FOIA request itself, counsel for Gawker will ask the government to provide any videos that the government agrees to produce in response to the request in a separate sealed envelope addressed to Judge James Case who will personally pick up the videos in Tampa. If the government inadvertently sends any video to Gawker?s counsel, counsel will not open any sealed envel0pe containing videos and will not review any videos provided by the government, except as provided below. Gawker?s counsel will send any videos to Judge Case within two business days of receiving them. 3 LEVINE SULLIVAN LSKS Charles J. Harder, Esq. September 29, 2014 Page 3 Prior to reviewing any video, Judge Case will provide the parties? counsel with an index of what he has received, describing the number of videos, their form DVD, tape, etc.), and any title that is on the video. Judge Case will preserve the videos until the ?nal disposition of this case, including any appeals. Judge Case will review any videos provided to him, in their entirety, to determine if they contain any nudity, or any sexual content, or any material covered by the protective order plaintiff sought during the July 18, 2014 hearing (any and all of which is referred to herein as ?Nudity, Sexual Content, or Protective Order Material?). If any videos do not contain any Nudity, Sexual Content, or Protective Order Material, then Judge Case will provide such videos to Gawker?s counsel, and Gawker?s counsel will then provide copies to plaintiff?s counsel and will treat them as ?Highly Con?dential Attorney?s Eyes Only" until plaintiff counsel has had 30 days to review them and make any con?dentiality designations. With respect to videos that contain any Nudity, Sexual Content, or Protective Order Material, Judge Case will review them to determine whether the videos or any portions of the videos are relevant or reasonably calculated to lead to the discovery of admissible evidence. In connection with Judge Case?s conducting that review and making his recommendations, Gawker might request of Judge Case to make a con?dential, ex parte proffer to Judge Case about Gawker?s theories on why content that might be on the recordings should be deemed to be relevant or reasonably calculated to lead to the discovery of admissible evidence. (Plaintiff opposes any ex parte communications between Gawker and Judge Case, or any protocol contemplating any such ex pane communications.) If Judge Case permits any ex parte proffer by Gawker?s counsel: Judge Case will not provide Gawker?s counsel with any information about the contents of any videos, except as provided below; any such proffer by Gawker will be treated as con?dential and not shared with plaintiff or his counsel; and any such proffer will be made on the record and transcribed by a court reporter, in case it is needed for further review of Judge Case?s recommendations concerning his review of the videos. If Judge Case recommends that any portion of the videos is not relevant or reasonably calculated to lead to the discovery of admissible evidence, he will provide the parties with something akin to a privilege log, generally describing any footage being withheld and the basis for withholding it, providing sufficient detail so that his recommendations could, if needed, be subject to further review, but while respecting the privacy interests of the plaintiff. LEVINE SULLIVAN 3 LSKS Charles J. Harder, Esq. September 29, 20 4 Page 4 If Judge Case determines that any statements re?ected on the videos containing Nudity, Sexual Content, or Protective Order Material or any portion thereof are relevant or reasonably calculated to lead to the discovery of admissible evidence, then he will arrange for a court reporter to transcribe those statements (at Gawker?s expense). Each side retains the right to seek from Judge Case any portions of the videos, including any portions of the audio, that he finds to be relevant or reasonably calculated to lead to the discovery of admissible evidence in which there is no Nudity, Sexual Content, or Protective Order Material. Any transcript, audio recording, or video will be treated as ?Highly Con?dential Attorney?s Eyes Only? until plaintiff has had 30 days to review them and make any con?dentiality designations. 0 Prior to Gawker?s counsel making the FOIA request, the parties will inform Judge Case of the agreed-upon protocol and provide him with a stipulation and proposed recommendation memorializing the proposed procedure for his receipt, review, and ruling on any videos. Please con?rm that plaintiff agrees to this protocol or let us know if he proposes any revisions. If you have any questions or would like to discuss the protocol, please call me or Seth. if this is otherwise agreeable, please provide us with the signed authorizations as directed by the Court. CC: We appreciate your working with us to develop a mutually agreeable procedure. Very truly yours, LEVINE SULLIVAN KOCH SCHULZ, LLP By' Michael Barr Seth D. Berlin, Esq. Filing 29588636 E?Filed 07/13/2015 05:17:21 PM EXHIBIT to Plaintiff?s Emergency Motion for Clari?cation and Con?rmation that Agreed Protective Order and Stipulated Protocol Govern All Documents, Records and Materials Produced in Response to OIA Request of GaWker Media, LLC and its Attorneys and Request for Status Conference Nick Denton Hulk v. Gawker, the story so far Nick Denton 7/10/1510:00am I was supposed to be on the stand this week, down in St Petersburg, Florida, giving testimony in a dispute with a local and global celebrity, the wrestler and reality star, Hulk Hogan. The trial is delayed, while Gawker?s lawyers pursue a lead about a suspicious audio track. More on that later, but this unexpected interlude provides the opportunity to take stock of the story and the case so far. The initial story by A.J. Daulerio on Gawker in 2012 introduced a recording of an evening including Hulk, a shock jock called Bubba The Love Sponge who was the host of the evening in question, and Bubba?s wife Heather, who had ?relentlessly? pursued the wrestling star. The second act, which has just concluded, has revealed the arguments on both sides: Hulk?s team maintains his rights of privacy and publicity were violated; Gawker that the wrestling and reality star had himself made the tape newsworthy. be a .thirdra?t which webelieve the real the additienal? res?rdingshEId the FBI,the Hogan?s real; secret, 7331161 the?reerdings {if 111 go, more interesting it?g?ts. (A side-note: this prediction is based on court ?lings, existing press reports and publicly available information. Our external lawyers and in?house counsel are severely limited in what they can tell me.) In the meantime, during this interval between the second and third acts, here?s an account conveyed through quotes from journalists, legal experts and protagonists in the dispute. I?ve tried to include some commentary too from habitual critics of Gawker, and Hulk?s lawyers and surrogates, for at least some balance. Headlines are mine. Gawker?s editorial mission Tommy Craggs, Executive Editor of Gawker Media, speaking to Vice ?There?s a learned passivity in the media surrounding anything that might find its way into If a reporter thinks [something] is true, and there is evidence to support that to the reporter?s satisfaction, then there is no reason why it shouldn?t be out there. That is the entire philosophy of this company.? Profile of Heather Dietrick in Above The Law Dietrick has been at Gawker for a little more than two years. She had the wonderfully well?rounded r?sume? you?d expect from the GC of a company like Gawker: she previously worked in?house at Hearst, clerked in the Eastern District of New York, and practiced intellectual?property and media law at two ?rms (Goodwin Procter and Heller Ehrman). She holds both a JD and an MBA from the University of Michigan and it?s good that she has some business background, because in a company reorganization last December, Denton promoted Dietrick to serve as president as well as GC of Gawker. She now divides her time between legal and non?legal matters. When I spoke with her last week, though, Dietrick did not seem stressed. Sporting an elegant black blouse and impressively full, white A?line skirt, which she smoothed over her crossed legs from time to time during our conversation, she seemed calm and believe in this story,? she said. ?At Gawker, we stand by our stories when we believe in them. That?s fundamental to what journalists do. There are lots of stories based on information that someone doesn?t want out there but that it?s important to have it out there.? According to Dietrick, who describes herself on the Gawker website as ?a fast walker and a ?erce defender of the First Amendment,? this mission is what makes Gawker so great. Nick Denton on Gawker?s modus operandi (NYT) ?We?re talking about a central issue of our time, which is the proliferation of marketing. We are being bombarded by marketing all of the time marketing and self-promoters, people who wake up in the morning and get into character, whether they are Captain America or Hulk Hogan. If you want to be in the marketing haze, then be in the haze. But the Internet does give you the ability right now to go to Gawker and to ?nd out what really happened.? Gawker has evolved since its early days as tormentor of the Manhattan media elite. But Mr. Denton sees a thread through the years, and across Gawker?s disparate network of blogs. ?Whatever information we have, whatever insight we have, whatever knowledge we have, our impulse is to share it as quickly as possible, and sometimes with as little thought as possible,? he told me after we had settled into a small conference room. ?Before you can think about it too much, just put it out there, just share it out there. I think that?s the essence of who we are.? Gawker Media CEO Nick Denton discusses Hulk Hogan?s sex tape, their pending trial, and more on Reliable Sources There are too many people in the media who make calculations. I can understand what they do, but they make cautious, conservative ?nancial and reputational calculations that often result in good stories not seeing the light of day. And they settle cases. They settle cases like this one, even when they know that they?re in the right. We are independently owned, and we can a?ord to stand up for the principles of good We can a?ord to bear the risks. We have a higher tolerance for risk than most organizations. Being independently owned, we can make those calls. And as far as business goes, to have a reputation for putting out the real story, despite the risks, that is a rare, that is a rare thing in the modern world, in the modern media world. So I ?m con?dent that this reputation that we have built, and that we continue to build, will pay o? in the longer term. Taking responsibility (Hollywood Reporter) As Denton prepares to defend a brand of journalism that he believes is free of corporate in?uence and the spin of publicists, he?s speaking out about how celebrities should know better. Asked what would happen if he had the chance to sit down with Hogan, Denton says he?d tell his nemesis, take no pleasure in your embarrassment, but this was a story we had to write: It was true and it was interesting. You let the genie out of the bottle; you boasted about your sexual conquests endlessly. And you took up a celebrity perk an invitation to have sex with a fan?s wife without thinking through the consequences. We take responsibility for our journalists? words and actions; take responsibility for yours.? A changing media culture (Amanda Hess in Slate) Over the past several years, Gawker?s journalists have largely absorbed the societal shift in regards to celebrity skin, no court order necessary. They even deserve some credit for precipitating the change. When a sex tape featuring Playmate Kendra Wilkinson was released against her will in 2010, Gawker?s women?s site Jezebel had her back. As Gawker?s bloggers evolved into reporters, their proximity to the underbelly of the Internet helped them break important stories about online sexual exploitation and harassment. And when the 2014 celebrity hack broke, Gawker didn?t publish a pic. Instead, Deadspin launched an investigation into who was responsible for the hack, Valleywag demysti?ed Apple?s security failures, and Jezebel critically analyzed the incident as a massive act of bullying against a group of women publicly humiliated for their success. A blog network that earned notoriety in part for exalting in leaked nudes had become the Internet?s conscience. It kind of always has been: Every time Gawker found a strange new artifact from some corner of the Internet and threw it on the site, it forced the rest of us to begin to consider which elements of this new online culture felt fair and which smelled foul, until something like values emerged. Now they have. Which is why we can feel icky that the Hogan tape landed on the Internet, and just a little bit grateful that Gawker was free to put it there. Despite Hulk of a lawsuit, ?nancials show Gawker making money, moves. (New York Observer) ?With the possibility of an initial judgment against Gawker Media at the forthcoming trial in Florida, there?s been interest in the company?s underlying ?nancial health,? Mr. Denton said in a statement. ?Our journalists and I stand for open discussion of true and interesting stories, and our ?nances have become part of the story. So we intend to be open about them, both in the media and in the St. Petersburg courtroom. I am as proud of our business track record as I am of our writers? reputation for journalistic boldness.? Gawker dodges potentially deadly Hulk Hogan lawsuit for now (New York Post) Although the trial is delayed, Denton?s lawyers, it was learned, were trying to quash that the company is incorporated in the well?known tax haven of the Cayman Islands. His lawyers worried that such information would be used to in?ame the Florida jury about foreign owners. Denton defends the incorporation status. ?There is no reason, as a small?sized company, that we should not take advantage of the same laws as large companies so we are not taxed doubly,? he said. His lawyers also did not want the jury to hear that he had set up o?ices in Hungary as well. Denton explained that his mother?s family is Hungarian. t?s a very natural place for us to do business,? he maintained. He said about 40 of Gawker?s 268 employees are there. Jeff John Roberts in Fortune The case is important not only because Hogan wants $100 million, which could ruin Gawker, but also because it highlights how Gawker is alone among new media companies in waging the sort of public interest legal ?ghts that were once second nature for traditional media. The legal background is complicated, but the gist of it is that Gawker would likely win the case?but for the fact the trial is taking place in Hogan?s hometown, and in front of jurors who are unlikely to look kindly on New York?based Gawker and its Oxford?educated founder, Nick Denton. Denton?s doughty attitude to legal threats (which Gawker also showed while exposing the crack-smoking mayor of Toronto) is similar to what newspapers and traditional media have long displayed. As Adam Liptak has explained, these older media companies ?nanced many of the major free speech ?ghts of the 20th century; they saw paying for litigation as part of their business model, and as a public duty. All of this is why Gawker?s ?ght with Hulk Hogan, despite the sleazy subject matter, should attract the support of media companies and free speech advocates everywhere. Gawker is the only one among a new generation of media companies that appears ready to stand its ground in the face of legal threats; if it loses, there may soon be no one else who is willing to do so. Gawker?s moment of truth [Denton] has probably done more than any individual to loosen up the mainstream media. His various websites have stood for nothing if not the proposition that decorum should never stand in the way of entertaining readers. By Gawker?s de?nition, if it?s interesting, it?s news. As Mr. Denton himself has put it, what journalists put in their stories is inherently less interesting than what they say after work. I t?s surprising that the suit has gone this far, given the wide berth that judges have historically granted the news media when it comes to covering the lives of public ?gures. People at Gawker tend to talk about ?the Hogan case? in apocalyptic terms, suggesting that it could very well bring down Mr. Denton?s entire empire. Of course, hyperbole is baked into the company?s identity. The goal has always been to draw notice, which means framing everything in the most extreme manner possible. Even when the subject is the future of Gawker. It?s an especially pertinent issue for Gawker, a company whose identity is bound up in a particular voice and worldview. You can call it an unwavering commitment to truth-telling or, less generously, a relentless cynicism. Either way, the Gawker sensibility that helped set the tone for an earlier generation of Internet journalism no longer really squares with the prevailing spirit of positivity on social media networks like Facebook. The Gawker writer Tom Scocca called this ethos ?smarm? in a withering essay in late 2013: ?Smarm aspires to smother opposition or criticism, to cover everything over with an arti?cial, oily gloss.? Gawker?s Nick Denton: ?We are not part of your PR marketing machine? (Jane Martinson profile in The Guardian) When we ?rst met as young reporters on the Financial Times, he had already won a reputation for being a brilliant if somewhat unforgiving journalist the subs dubbed him the ?mad Magyar? when he came back from being a stringer in Hungary. He was possibly the last person anyone would have picked as the ?tture head of a site which outs celebrities and publishes sex tapes involving a 62-year?old wrestler. And yet Denton always loved gossipy details, as with his obvious joy at discovering that Barings rogue trader Nick Leeson used superman as his computer password. ?Gawker is a re?ection of part of me, he says now. ?Gossip is the ?rst draft of news.? Or, as he said when he ?rst set up Gawker, journalists tell the best stories in the bar after work rather than in the paper. Friend and former FT colleague John Gapper compares him to Rupert Murdoch: ?At heart he?s a great traditionalist. Like Murdoch, he loves a great story.? The media debate Eriq Gardner in Hollywood Reporter on the battle over coverage between entertainment stars and the journalists that cover them Hogan?s battle represents the latest strife in the escalating tension between the media and celebrities. As news outlets expand their reach through social media, public ?gures are ?nding it more dif?cult to escape the sometimes un?attering spotlight. More than 2.5 million people watched the Hogan sex video online. Gawker?s story was published alongside an essay about why everyone likes to watch celebrities have sex, which Denton believes adds to its newsworthiness. But Hogan?s team is preparing to call a professor of journalism at the University of Florida to testin that the video itself didn?t need to be posted and fails the ?Cheerios test,? playing badly for readers eating breakfast. Maria Bustillos on the original story by AJ Daulerio, then EIC of Gawker Daulerio?s commentary on the original ?highlights reel? is witty and entertaining, and worth reading most of all for his penetrating observations on the ordinariness and vulnerability of celebrities. The excerpted video is the springboard for a broader examination of our complicatedly voyeuristic celebrity?obsessed society. The newsworthiness of the story (Capital New York) The case has its roots in an Oct. 4, 2012 post written by Gawker?s then?editorAJ. Daulerio about Hogan?s 2006 sex tape. By the time Daulerio published the post, it had been seven months since TMZ broke the news about the existence of the sex tape and more than ?ve months since gossip website The Dirty had published grainy screenshots from the video. Hogan is certainly a very public person, having written two memoirs and starred in the reality show, ?Hogan Knows Best.? He has been particularly open about his sex life. During various appearances on both Bubba?s radio show and Howard Stern?s radio show, he has discussed: his erection, the size of his penis, where he prefers to ejaculate during sex, how he uses his mustache during sex, the way his wife pleasures him in the car, his penchant for rough sex, and more. With the sex tape, though, Gawker did expose some lies. After the video had been recorded in 2006, but before Gawker published its post in 2012, Hogan had said in an interview that he would never sleep with Clem. Once screenshots of the video were published in early 2012, many speculated online that Bubba had set up the cameras in order to catch Hogan and Clem cheating. Gawker?s publication of excerpts of the sex tape, which revealed that Bubba had encouraged Hogan and Clem to have sex, refuted both of these false narratives. Hogan?s original lie about sex with Bubba?s wife (CNN) During a 2011 interview with Stern, Hogan said ?atly that he would never have sex with Heather Clem. ?Man law, brother,? Hogan told Stern. ?Even if they were divorced for 10 years.? In the same interview, Hogan opened up about the sexual chemistry with his wife. Disproves a public lie (Farhad Manjoo of NYT on Twitter) This really seems like an obvious basis for publication. It?s news, it disproves a public lie. Hogan had regularly discussed his sex life and this incident in particular. Seems worthy of celebrity journalism to point out a clear lie. Hulk Hogan All?American Liar (Vice) Hulk Hogan lies. All pro wrestlers lie, of course, and pro wrestling is a lie, but Hulk Hogan is a liar?s liar. He?s said he was nearly Metallica?s bassist and that he had to shoot on (read: beat up for real) Japanese wrestler Tatsumi Fujinami to save the WWE title. His re?telling of his iconic match with Andre the Giant at Wrestlemania is rife with obvious, gratuitous, easily disproved lies?Andre was 600 pounds, Hogan didn?t know if Andre would let him win, Andre died days later. Gawker makes no moral judgment, says Heather Dietrick (FOX News) ?Here is this tape of this guy having sex with another man?s wife, with his blessings. No judgment from doesn?t care what you do in regard to that. But people should be able to know and make their own decisions as to what is going on in the whole worl Quotes from Danielle Citron, University of Malyland law professor and author of the book Hate Crimes in Cyberspace (Fusion) ?Of course, journalists can write that it was made but the video itself isn?t newsworthy. We don?t need to see the video. It?s a sacred invasion of privacy and humiliating and was a big mistake and [Gawker is] sticking by it because they made it.? Do you need to see to believe? (Mashable) ?Seeing the video tape of someone having sex is very di?erent from journalists writing about Gawker success?illy argues that publishing the video was necessary, then Citron says the ?end implication? is that ?there?s no privacy in anything, which I don?t think we?re prepared as a society to say.? Gawker could counter by essentially saying that ?seeing is believing,? Eric Goldman, an Internet law professor at Santa Clara University, told Mashable. Without the video, Gawker could argue that readers would say the outlet misinterpreted its contents, or that it was making up details. A rare statement from David Houston, Hogan?s closest attorney and adviser (Hollywood Reporter) For Denton, who founded Gawker in 2003, the trial represents perhaps the most significant risk to his company. He settled a suit over an Eric Dane?Rebecca Gayheart sex tape that Gawker posted, but he says he found Hogan?s demands unreasonable. (Neither side will say what Hogan wanted.) Now, the fate of his company could be in the hands of Florida jurors who will be told that Google searches for ?Gawker? reached a historic high around the time of the Hogan sex tape story. ?It is time to put an end to the immoral bullies who use the First Amendment as a means to destroy privacy and decency,? says David Houston, a Hogan attorney. Gawker should pay for free speech (Michael Wolff in USA Today) Until, that is, the Internet, which is able to operate without responsibility or costs. Neither Google nor Facebook, regarded as more like telephone lines than publishers, are legally accountable for their invasions and defamations. And the cruelest and vilest words are usually uttered by people who don?t have enough money to make it worth suing them. But Gawker Media, with its ?agship site Gawker, the news, gossip and bile blog, has made quite a success out of gratuitous and ad hominem attacks. And now it is in tenacious litigation with wrestler and reality TV personality Hulk Hogan for violating his privacy over a sex tape that Gawker edited and posted. While this suit is the kind that will likely be defeated on constitutional grounds, it is also true that you need to be richer than Gawker to adequately defend against a plainti?like Hogan, who is righteous enough and stubborn enough not to settle. Still, if Hulk Hogan were to win his suit before the Florida jury, demonstrating the ?nancial risks of indiscriminate speech, and that decision is eventually reversed by a higher court, rea?irming the ultimate principle of free expression, that might o?er a sort of balance, albeit sacri?cing Gawker, but to the regret of few. Most great stories are based on unauthorized disclosure of information (Heather Dietrick to CNN) ?It?s dif?cult to think of a huge news story about a celebrity or a politician or someone people care about that didn?t involve some information that that person did not want the job of a journalist.? The gap between reality and perception, that?s where the interest lies (Heather Dietrick to Business Insider) ?We think that a jury will understand that it?s the journalist?s role to clarify when misinformation exists about a widely reported topic and to close the gap between a celebrity?s marketed version of a story and reality.? Gawker Argues Publishing Hulk Hogan?s Sex Tape Was Simply ?Good Journalism? (Michael Calderone in Huffington Post) It?s easy to get bogged down in the salaciousness of the content. But Benton and Gawker?s defense team want jurors to conclude that publishing an edited clip of the 30-minute sex tape falls in line with what journalists do every day: provide veri?able information in response to rumors and reveal contradictions related to a celebrity?s public ?Others used screenshots, and in that muck and confusion, lies and rumors and speculation wrote a story which did not simply add another rumor to an already large pile of rumors, but actually sorted through those rumors and tried to establish some truth. That is the de?nition of good journalism, whatever you think about the subject matter.? Talk and let talk (Nick Denton to Reason) ?Hulk and Bubba have aired the wrestler?s sex life on talk he way they talk about women seems disrespectful, but it?s a free country. But?especially when revealing information leaks out?Gawker writers and readers also have a right to their own conversation on the same subject.? What would I do if sex pics leaked? I already had an exercise in that kind of crisis management! (Nick Denton to Buzzfeed) ?In the modern world, if you?re in the public and you?ve opened the door yourself, and I?ve opened the door myself to pretty much any discussion of my life, really, you have to own have with as much grace as you can. Just don?t ?ght (Hulk Hogan) wants to talk about his sex life but no one else is allowed to. You don?t get to do that in this country.? Dude, you?re a celebrity (Nick Denton in The Daily Beast) Putting aside any First Amendment arguments, the common-sense arguments are pretty clear. ?Dude, you?re a celebrity. That?s comes with a price. And part of that price is you?ve got to be discreet. Generally it?s good to be discreet if you?re fucking around, but especially if you?re a celebrity.? Citing public comments, many of them graphic, that Hogan has made about his sex life during media appearances, Denton continues: ?If you can?t even remember if you slept with Heather Clem [Hogan?s video sex partner] or not because there were so many brunettes that year, in the InternetAge you might once in a while have something come out if you?re going to be that indiscriminate in the pursuit of your celebrity perks.? Taiwanese animators get hold of the story The legal issues: a free press v. advocates of internet privacy Ed Krayewski in Reason Magazine If successful, Hogan?s suit could be ?nancially ruinous to Gawker. But the case has larger implications for free speech as well. Indeed, it could have serious chilling e?ects on other news outlets that report unfavorany on celebrities and pseudo? celebrities obsessed with image management while setting a poor precedent on the use of privacy claims to squash reporting on public ?gures. On the most basic level, this is a case about Gawker, an independent media company, ?ghting for its life. But it?s also a case about the FirstAmendment and the right of the press to publish ideas, information, and images that the public wants to read. At its core, the dispute between Gawker and Hogan is about competing visions of ?tndamental rights?a nearly unbridled right to free speech (at least theoretically) and a free press vs. the right more and more public ?gures are asserting to choose which parts of the lives they have made public can be reported on and how. Charles Harder, Hulk Hogan?s attorney, says public?s morbid curiosity does not amount to public concern (Huffington Post) ?The video is does not become a ?public concern? just because Gawker and Denton want to play it (and pro?t from it) or because it might appeal to the morbid curiosity of a segment of the population. If that were the test, then no one would have privacy, so long as certain people have an interest in watching them naked or having sex.? Charles Harder says Florida statute on Video voyeurism trumps constitutional protection for free press and free expression (CNN) ?The First Amendment has In Florida, it is a crime of video voyeurism to ?lm someone naked without their permission, or to publish that footage. Doing so is against the law and not protected by the First Amendment.? Who knew that professional wrestlers could be so sensitive? And that their antics could have potentially grave First Amendment implications? (Jane Kirtley, Silha Professor of Media Ethics and Law at University of Minnesota) Gawker generally revels in controversy and seems to especially relish acquiring contraband videotapes of celebrities misbehaving. For example, Gawker reporters made several attempts in 2013 and 2014 to purchase recordings allegedly showing Toronto mayor Rob Ford smoking crack cocaine. But in these instances, as with the Hogan tape, no one has accused Gawker of making or inducing someone else to make the illicit recordings. Under US Supreme Court precedent, if they did nothing illegal to obtain the tapes, publication would be protected by the FirstAmendment, provided the contents are a matter of public interest and concern. In this case, of course, Hogan isn?t suing for libel. He couldn?t, because there is no dispute that the tape is genuine. Truth?il speech, no matter how offensive, cannot be the basis for a defamation suit. Here Hogan is arguing that intimate facts about his private life were made public in a way that would be highly offensive to a reasonable person. Jurors are likely to identify with the plainti?, on a very visceral level. They wouldn?t want a tape of themselves to be posted online, and they could agree that Hogan shouldn?t have to put up with it, either. A ruling for Hogan could send a strong message that online sites should be very wary ofposting videos of celebrities misbehaving, even if they think the content is newsworthy. A bonus item. Rob Ford, the crack?smoking mayor of Toronto, himself exposed by a Gawker scoop in 2013, arm?wrestling with Hulk Hogan. Michael McCann of The University of New Hampshire, for Sports Illustrated Although jurors are hard to predict, Gawker appears well positioned to prevail in the trial. Gawker?s strongest argument is that the First Amendment protects media companies in the reporting of news and that courts have broadly de?ned what counts as ?newsworthy? and ?of legitimate public concern.? The First Amendment safeguards our open society and allows media to report on stories that some would prefer be kept con?dential. News stories, moreover, do not have to be about weighty topics to be accorded First Amendment protection. Stories about celebrities and?yes?athletes are as protected by the First Amendment as are stories about international affairs and policy reforms. Along those lines, while critics of Gawker might dismiss it as a gossip website, for purposes of the law Gawker is clearly a media company engaged in the distribution and commentary of news items. This was apparent in Gawker?s 2012 post that featured the sex tape. While the embedded video of Hogan having sex surely drew Internet traf?c, the accompanying post featured a 1,400-w0rd commentary about the video and what it signi?es. Gawker is thus distinguishable from entertainment companies that have lost ?sex tape? lawsuits. In 1998, Poison lead singer Bret Michaels defeated Internet Entertainment Group Inc. in a case involving a sex tape ofMichaels and Baywatch star Pamela Anderson. Michaels won a permanent injunction in part because Internet Entertainment Group was clearly not in the news business; it was a subscription?based website for the distribution of pornography. The Michaels sex video was also shown to subscribers in its entirety. This is a key distinction for purposes of when a video counts as news under the law. Gawker edited the Hogan video from 30 minutes to less than two minutes in order to be more newsworthy. Hogan is clearly one of the world ?s most recognizable wrestlers and is one of the main reasons for WrestleMania?s popularity as a pay?per?view broadcast. In fact, he once boasted, ?I?m the man that made wrestling famous.? According to Hogan has also appeared as an actor in 134 videos and ?lms, ranging from classics like Rocky and Muppets in Space to not?so?classics like Suburban Commando and 3 Ninjas: High Noon at Mega Mountain. Hogan also licensed his name, image and likeness for the box 360 game Hulk Hogan?s Main Event. There is no doubt about Hogan?s fame among a wide spectrum of age groups and across demographic categories. While celebrities do not lose their privacy rights by virtue of their fame, they are expected to accept some downsides of their fame: The public may become interested in their personal lives. In Hogan?s defense, even the private sex scene of a well?known celebrity should not automatically be viewed as a matter of public interest. The problem for Hogan, Gawker will argue, is that he has turned his personal life into a core feature of his public persona. Hogan, along with his then-wife Linda Hogan and two children, starred in the VHJ realty television show Hogan Knows Best, which aired 43 episodes between 2005 and ?07. Like other reality TV shows, Hogan Knows Best featured family members displaying their everyday lives while at home. Hogan later claimed Hogan Knows Best featured ?soft scripted? scenes, meaning the family?s interactions were?like professional wrestlingmbased on a loose plot rather pure reality. Still, Gawker has a persuasive argument that Hogan has voluntarily made his personal conduct a matter of public interest. Dan Abrams, chief legal affairs anchor at ABC News, says hard to see how Gawker loses (GMA) Gawker didn?t take the ?lm so that?s not the legal question here. As a legal matter, Gawker has a very strong argument and that is that Hulk Hogan made his sex life news. And then, we covered his sex life. That?s news too. The problem for Gawker may be that in front of the Florida jury, the question in their mind may be was it right or wrong? They may end up becoming media critics as opposed to evaluating this legally. That?s the danger. But this has worked it?s way up through the Federal courts on separate questions and just about every time Gawker has ended up winning. Certainly in the end Gawker has won a legal matter and I think that as a legal matter they? re going to end up winning Under di?erent facts, Gawker could be in trouble. If they had tried to sell the tape, for example as a legal matter, they?re be in trouble. If Hulk Hogan had not made his sex life such a big issue in the past, they could be in trouble legally. And that?s going to be the challenge for their lawyers here. Is to try to keep the jurors focused on this question of was it newsworthy. The problem is when you hear the word newsworthy and term was it of public concern, people are going to say ?public concern? How is it of public concern that Hulk Hogan was having sex with someone?? Well, public concern as a legal matter doesn?t mean the same thing that we think of it. It doesn?t mean as a legal matter, is it going to determine the future of the republic? Is it important? That?s not the standard. The government doesn?t get to decide what?s important and what?s newsworthy. And Hulk Hogan doesn?t get to decide that. If he makes this an issue, as he did, and he?s a celebrity, as he is, then it?s very tough to figure out legally how Gawker loses the case. Charles Tobin, an entertainment and media lawyer at Holland Knight (NYT) It?s in many respects a dangerous First Amendment precedent for the court to let a case like this go to a jury. Newsworthiness should be decided by people who choose to look at Gawker or not look at Gawker, not by a jury. Entertainment lawyer Julian Chan (Fox News) ?If it was obtained illegally, it will fall on the side of If it was properly received?or even if it was obtained from someone else who stole it? as long as Gawker did not encourage them in wrongdoing, then they have a good chance to prevail.? Eugene Volokh of UCLA interviewed in Fusion Volokh thinks Hogan will win, but he hopes for a different outcome ultimately. If Gawker loses and appeals the case, Volokh would like to see the federal appeals court rule unconstitutional the tort that Hogan is suing under. ?Publication of private facts? is too broad and vague,? said Volokh. think it should be narrowed to the kinds of pictures at issue in this case.? In other words, he thinks it should be replaced with a federal law banning revenge porn. ?The law would need to be limited to disclosing naked pictures taken in a private place, or the release of video of people having sex without the consent of all the people involved? unless there?s ?nancial or political relevance,? said Volokh. think revenge porn laws will be upheld if they?re narrowly crafted.? Gawker?s lawyer says the Hulk Hogan sex tape isn?t ?revenge porn? (Heather Dietrick, President and General Counsel of Gawker Media, interviewed in Fusion) ?There are a lot of past cases where courts say the publication of something can be graphic or uncomfortable, like a sexually explicit video or photos of a medical issue, but that it?s related to a newsworthy subject,? said Dietrick. In court ?lings, for example, Gawker cites a 10th Circuit case from 2007 in which a court dismissed a woman?s invasion of privacy claims against an Oklahoma TVstation after it aired a video of her being raped by her estranged husband while she was unconscious. The woman had sued over the same thing Hogan is suing for, ?publication of private facts. ?That?s how free expression works in this country,? said Dietrick. subject of a story doesn?t get to wield how the story is told, or what evidence is used. If it?s been a topic of public interest, journalists have to decide what to bring up.? The legal process Will the first celebrity sex tape case ever go to trial break Florida?s reputation of judicial openness? (Hollywood Reporter) lawyers are also marking nearly every court document con?dential. For example, they have withheld from the public court ?le the o?ers to commercially exploit the sex tape even though tabloid outlets have already published them. Or, our personal favorite: Hogan?s opposition to Gawker?s motion to permit presentation of o?ensive language at trial. This, too, is pending a determination of con?dentiality. Hogan?s lawyers have brought motions to exclude a wide?range of possible evidence including stu?? relating to the celebrity?s media appearances (like when he went on Howard Stern?s show and talked about his sex life), allegations of adultery, information related to his character and medical history, stu? related to the VH1 reality show Hogan Knows Best, evidence in connection to the investigation of the sex tape, even his son Nick Hogan?s car accident. Hulk Hogan?s history of litigation (Amanda Hess in Slate) Hogan is easily aggrieved. When a woman accused him of sexual battery, he sued her; when his ex-wife Linda alleged domestic abuse in her memoir, he sued her; when a series of back surgeries stopped Hogan from inking a last?hurrah wrestling contract, he sued the surgeon; when his auto insurance failed to cover the cost of his tipsy teenage son recklessly driving his sports car into a tree, causing permanent brain damage to a passenger, Hogan sued his insurance company; when that didn?t work, he sued Linda, too, for not forcing him to be better insured; when Hogan?s lawyers sent the bill for their services, he sued them as well. Gawker says you can?t stage a trial like you can a wrestling match (Poynter) On Friday, Gawker Media ?led a response to the motion and several other motions ?led by Hogan?s legal team that seek to exclude pieces of evidence from the trial, accusing the team of trying to try the case ?in a ?ctional vacuum where everyone pretends that critical evidence does not exist.? Excluding the press and the public from seeing the tape, Gawker Media argues, infringes upon the company?s ?constitutional right to due process.? trial is not a scripted reality television show with a contrived ?Father Knows Best? ending,? the response reads. ?The courtroom is not a professional wrestling ring with a predetermined ?world wrestling champion.? First Look, Buzzfeed, VOX, CNN, AP and other media companies intervene to keep courtroom open (The Intercept) Despite the sex tape part, and the professional wrestling part, and the man?who?s- part, Hogan?s demand raises genuine freedom of speech and governmental openness issues. As the motion to intervene states, ?The overarching principles at stake that the public is entitled to know what takes place in the courts of the state of Florida, and the First Amendment right of I ntervenors to report what happens in the courtroom to its readers transcend this case alone.? First Look?s request has been joined by Buzzfeed, Vox, CNN, AP and other media companies. Oberlander, First Look?s general counsel for media operations, says, ?Closing a trial, or part of it, reduces the information that the public receives, and reduces transparency in how the courts function, vital information to our democracy. The public cannot and should not be excluded from the testimony about the central claim of the lawsuit.? Appeals court issues scathing opinion (Vice) This gives Gawker more time to obtain and review evidence in the case gathered by the FBI in a related investigation. The move represents a setback for the Hogan camp, which had fought hard for the July 6th date, and strengthens the impression from the other side that Judge Campbell has been more receptive to Hogan?s objectives. ?The circuit court case is ongoing, and it has darkened our door more than once,? the Second District Court of Appeals judges observed gloomily, in today?s opinion. The next act: the missing audio track Seth Berlin, attorney for Gawker Media, raises questions about irregularities in the recordings submitted by the FBI (Buzzfeed) ?There is something that is particularly of sensitive and of interest to us in the case and that is the portion that has been overdubbed,? he said, ?So we have two CDs with two different video and for a portion of it the audio is the I want to understand how it is that between that moment when the FBI took possession of those DVDs and when I saw those Tuesday, that audio got changed,? Berlin said, adding that ?it smells like bad ?sh. Three mystery DVDs (New York Observer) An o?cicial document, never reported on until now, outlines some of the evidence held by the FBI in the course of its investigation, including a case containing three DVDs, and a check for $150,000 made out to Keith Davidson, a Hollywood lawyer, from Mr. Hogan?s lawyer David Houston. One of the three DVDs is labeled with Hogan?s name, the other two are labeled ?Hootie? (allegedly a nickname Bubba the Love Sponge has used for Mr. Hogan). All three are labeled with the date 7-13?07. What?s on the We have no idea. As noted in the document, ?the government intends to retain possession of this evidence pending the outcome? of the case. Heather Dietrick to Business Insider ?This FBI ?3 tapes and documents should help answer a number of questions relevant to Hulk Hogan?s lawsuit whether there are still more sex tapes out there, who was taping and why and who all knew about it. We always want to get to the bottom of every story, and now we?re a step closer to knowing the full truth here.? DennisReynoldsGoldenGod Nick Denton 7/10/15 11:51am So Hulk Hogan?s stolen sex tap good, stolen nudes of Jennifer Lawrence, bad. How does that work? unfortunatelylostburnerZ DennisReynoldsGoldenGod 7/10/1512:00pm During a 2011 interview with Stern, Hogan said ?atly that he would never have sex with Heather Clem. ?Man law, brother,? Hogan told Stern. ?Even if they were divorced for 10 years.? In the same interview, Hogan opened up about the sexual chemistry with his wife. Hogan is certainly a very public person, having written two memoirs and starred in the reality show, ?Hogan Knows Best.? He has been particularly open about his sex life. During various appearances on both Bubba?s radio show and Howard Stern?s radio show, he has discussed: his erection, the size of his penis, where he prefers to ejaculate during sex, how he uses his mustache during sex, the way his wife pleasures him in the car, his penchant for rough sex, and more. With the sex tape, though, Gawker did expose some lies. After the video had been recorded in 2006, but before Gawker published its post in 2012, Hogan had said in an interview that he would never sleep with Clem. Once screenshots of the video were published in early 2012, many speculated online that Bubba had set up the cameras in order to catch Hogan and Clem cheating. Gawker?s publication of excerpts of the sex tape, which revealed that Bubba had encouraged Hogan and Clem to have sex, refuted both of these false narratives. Point to me the place in Jennifer Lawrence?s history Where she talks brags openly about her sex life and penchant for taking nude photos as part of her public shtick and image management. Or where she specifically lies to protect embellish said public image. 4 I?ll wait. Filing 29588636 E?Filed 07/13/2015 05:17:21 PM EXHIBIT to Plaintiff? Emergency Motion for Clari?cation and Con?rmation that Agreed Protective Order and Stipulated Protocol Govern All Documents, Records and Materials Produced in Response to FOIA Request of Gawker Media, LLC and its Attorneys and Request for Status Conference Case Document 51 Filed 07/10/15 Page 1 of 3 PagelD 888 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION GAWKER MEDIA, LLC and GREGG D. THOMAS, Plaintiffs, v. Case No. THE FEDERAL BUREAU OF INVESTIGATION and THE EXECUTIVE OFFICE OF UNITED STATES ATTORNEYS, Defendants. NOTICE OF PRODUCTION OF ADDITIONAL VIDEO FOOTAGE Defendants, the Federal Bureau of Investigation and the Executive Office of United States Attorneys hereby respectfully file this notice pursuant to the Court?s July 2, 2015 Order [Doc. No. 46]. The FBI provides notice that it will produce re?processed video footage to the Honorable Pamela A.M. Campbell of the Sixth Judicial Circuit Court in Pinellas County. As noted in Court, one of the FBl?s DVDs was corrupt and contained video footage that was a little over one minute. In addition, another video appeared to have audio that, in part, was not with the video footage. The FBI is re- processing these videos, which will be produced to the state court in the same manner as the initial production, as ordered by the Court on July 2, 2015 [Doc. No. Case Document 51 Filed 07/10/15 Page 2 of 3 PagelD 889 46]. The EOUSA also hereby gives notice that it has complied with the Court?s July 2, 2015 Order by producing to the Court unredacted versions of the pages that are withheld in full for the Court?s in camera review. By: Respectfully submitted, A. LEE BENTLEY, Ill United States Attorney 3/ E. Kenneth Steqeby E. KENNETH STEGEBY Esquire Assistant US. Attorney USAO No. 112 400 North Tampa Street, Ste. 3200 Tampa, Florida 33602 Telephone: (813) 274?6087 Facsimile: (813) 274?6198 Email: kenneth.stegeby@usdoj.gov Attorney for Defendants Case Document 51 Filed 07/10/15 Page 3 of 3 PagelD 890 CERTIFICATE OF hereby certify that on June 19, 2015, I electronically filed the foregoing with the Clerk of the Court by using the system which will send a notice of electronic filing to the following: Alia L. Smith Gregg Darrow Thomas Patrick Kabat Rachel E. Fugate Seth D. Berlin Plaintiffs? Counsel s/E. Kenneth Steqeby E. Kenneth Stegeby Assistant US. Attorney