Well, yeah, it’s Friday, and the most overpowering issue to be dealt with may be tamping down the urge to hit that door to flee for the weekend. But here’s something legal and a little strong — or at least the visual may stick in the head in not exactly pleasant fashion: How much exactly do we all need to see one-time champion wrestler, sometime reality TV dad and sixty-something Floridian Terry Gene Bollea romping around the bedroom, sans even that teeny-tiny Speedo he pranced around in when he was a ring star known as Hulk Hogan? Grab a strong cup of java, brace for a little eeew factor and let’s confront that, while Hulk Hogan may be strong, he’s not mighty enough to win a pre-publication restraint on the First Amendment right to free speech: a Florida appellate court has lifted a temporary injunction Bollea had won to prevent that all-important press outlet gawker.com (slogan: Today’s gossip is tomorrow’s news) for posting about him in yet another celebrity sex tape. Counselors, are these kerfuffles about these kinds of vids becoming their own closet industry?
So the online world seems especially abuzz about this tawdry tale. If curiosity absolutely impels — and the legal discussion at hand ought to be prevail — well, you’ll have to search for the video Hogan goods yourself since the litigation-shy seem to be rolling the stuff back under the covers. (If desperate, there is a TMZ reenactment for giggles). Still the disputed tape was up long enough that it got Bollea nea Hogan sufficiently exercised that he jumped off the top rope and brought a case to federal court to quash the online posting, alleging copyright infringement, invasion of privacy, publication of private facts, misappropriation of publicity rights, and infliction of emotional distress. The judge wearing a tasteful black robe on behalf of the United States issued a preliminary ruling that Gawker’s publication was in “conjunction with the news reporting function” and that the facts support a “colorable fair use defense.”
So off went our ring champeen to a Florida state court, where he happened to find himself before AM Campbell, a jurist who may know something about the press: That’s because she represented the parents of Terry Schivo, the young woman in a persistent vegetative state who became the subject of a national healthcare controversy. Judge Campbell told gawker to yank its stuff about Hogan, leading the site to huff online and to seek a reversal of the Florida circuit court TRO.
Judge Anthony Black, joined by two colleagues on the Florida Court of Appeal for the Second District, lifted the lower court order, finding it to be an “unconstitutional prior restraint under the First Amendment” Gawker, the appellate court said, was not trying to make a profit on Hogan’s sex tape but simply to publish on a matter of “public concern.” Black wrote that Hogan was a public figure and had himself openly discussed his affair and sex life in his biography, as well as broadcasting details of his life and marriage on his cable-channel reality show, Hogan Knows Best.
Extending this publicity grabbing case, of course, Hogan, who hasn’t been much in the entertainment press, has appealed. A civil case also is pending.
His court time, of course, is just part of a swelling legal corpus involving celebs who just can’t seem to find the darn off button when they find it necessary to roll film or tape while frolicking with partners under the sheets. The history is long and the media can’t seem to turn away from this train-wreck legal topic, especially with high-minded coverage about broader societal concerns. Hit that search engine and the screen fills fast with pages of bold-face name personages caught, trousers down, in instance after instance and seeking legal relief from online onslaughts about their suddenly public private romps. Let’s see how soon before it becomes a must-see CLE seminar for the Entertainment Law bar on how to assist clients with this particular woe.