Hulk Hogan sex tape redux: Another court holds Gawker had First Amendment right to publish video excerpts

As we discussed here on internetcases back in November 2012, someone surreptitiously filmed Hulk Hogan engaged in sex acts with someone other than his wife. When Gawker posted an article and video excerpts about that, Hulk sued in federal court for invasion of privacy. The federal court denied the preliminary injunction, holding that to bar Gawker from publishing the information would be an unconstitutional prior restraint on speech.

hulk_hogan_tapeA few weeks after the federal court denied his motion for preliminary injunction, Hulk voluntarily dismissed the federal case and filed a new case in state court. Unlike the federal court, the state court granted a preliminary injunction against Gawker publishing the information and the video excerpts. Gawker sought review with the Court of Appeal of Florida. On appeal, the court reversed the lower court’s order granting the preliminary injunction.

The state appellate court’s decision closely tracked the federal court’s reasoning from 2012. The court observed that where matters of purely private significance are at issue, First Amendment protections are often less rigorous. But speech on matters of public concern is “at the heart of the First Amendment’s protection.”

The court found that the sex tape excerpts and information that Gawker published were matters of public concern. Much of this was from Hulk’s own doing — he injected himself into the public spotlight not only as a professional wrestler, but also through books detailing his sexual indiscretions, radio interviews, and other public pronouncements about his “conquests.”

In arguing that Gawker’s speech was not of public concern, Hulk looked to Michaels v. Internet Entertainment Group, Inc., 5 F.Supp.2d 823 (C.D.Cal.1998), a case that dealt with the infamous sex tape that Bret Michaels and Pamela Anderson made. In that case, the court found defendant’s redistribution of the video was not protected by the First Amendment, in part because the distribution was purely commercial. The court didn’t buy it.

But wasn’t Gawker’s use commercial as well? The court drew a distinction:

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 [Hulk] Sex Tape purely for commercial purposes.

So the court found that despite his brawn, Hulk failed to carry his “heavy burden” of overcoming the presumption that a preliminary injunction would violate the First Amendment in this situation.

Gawker Media, LLC v. Bollea, 2014 WL 185217 (Fla.App. 2 Dist., January 17, 2014)

Evan Brown is a Chicago attorney helping businesses and individuals identify and manage issues dealing with technology development, copyright, trademarks, software licensing and many other matters involving the internet and new media. Call him at (630) 362-7237 or email

Company sued by university can continue emailing that it will not hire students

University of Illinois v. Micron Technology, Inc., No. 11-2288 (C.D.Ill, Order dated April 11, 2013)

The University of Illinois sued Micron for patent infringement. Micron sent an email to several professors that read in part:

Because Micron remains a defendant in a patent infringement lawsuit that [the University] filed against Micron in Federal court in Illinois on December 5, 2011, effective immediately, Micron will no longer recruit [University] students for open positions at any of Micron’s world-wide facilities.

The University asked the court for a preliminary injunction barring future harassing communications from Micron to any University employee. The court denied the motion, holding that:

  • the term “harassing” was vague and therefore the requested injunction would violate Rule 65(d)’s requirement that the injunction describe in reasonable detail the acts to be restrained
  • the prior restraint of speech would likely violate Micron’s First Amendment rights
  • the sought after preliminary injunction did not pertain to the injury alleged in the complaint

Though the court sided in favor of Micron on the question of whether to enter an injunction, it questioned the company’s motives. It found Micron’s decision to be “without tact,” and was “very concerned” that Micron was trying to interfere with the litigation. But there was not sufficient evidence for the court to draw such a conclusion.

Court won’t ban Gawker from posting Hulk Hogan sex tape

Bollea v. Gawker Media, LLC, 2012 WL 5509624 (M.D.Fla. November 14, 2012)

A few years ago someone surreptitiously filmed Hulk Hogan cavorting in bed with a woman not his wife. Gawker got a copy through an anonymous source and posted a minute of excerpts on (I’m not linking to it but it’s easily accessible. Just be warned, it’s extremely NSFW.)

Hulk sued in federal court alleging various invasion of privacy claims. He sought a preliminary injunction against Gawker continuing to make the video available. The court denied the motion, finding such an injunction to be an unconstitutional prior restraint on Gawker’s free speech right.

Gawker conceded that Hulk had a right of privacy in the contents of the tape, but argued that Gawker’s First Amendment rights outweighed the privacy interest.

The court found that Hulk failed to satisfy his heavy burden to overcome the presumption that a preliminary injunction would be an unconstitutional prior restraint under the First Amendment. Hulk’s public persona, including the publicity he and his family derived from his reality show, his own book describing an affair he had during his marriage, prior reports by other parties of the existence and content of the tape, and Hulk’s own public discussion of issues relating to his marriage, sex life, and the tape all demonstrated, in the court’s view, that the tape was a subject of general interest and concern to the community.

And he failed to show that he would suffer irreparable harm from the publication. The court’s decision on this point was based in part on the fact that mere embarassment was not enough to satisfy the irreparable harm standard. Moreover, the court found this to be a case where the “cat is out of the bag,” so it was not apparent that a preliminary injunction would do anything to help.

Eighth Circuit rules against students’ free speech claim over offensive website

S.J.W. v. Lee’s Summit R-7 School District, No. 12-1727 (8th Cir. October 17, 2012)

Plaintiffs (twin brothers) created a blog that contained offensive, racist and sexually explicit content targeting their high school classmates by name. The school district suspended the brothers for 180 days. Plaintiffs got a preliminary injunction against the suspension, and the school district sought review with the Eighth Circuit. On appeal, the court reversed, and ordered that the suspension should not have been halted by the injunction.

students talking

The court held that under the Tinker analysis (Tinker is the leading case from the Supreme Court dealing with student free speech), the blog posts could reasonably have been expected to reach the school or impact the environment. Paired with the considerable disturbance and disruption at school because of the content, the court found that the lower court improperly held that the plaintiffs would have a successful First Amendment argument.

Moreover, the appellate court held that the plaintiffs had not shown irreparable harm from their suspension. They were able to enroll at another local accredited school, and the harm to their future music careers from not being able to try out for band was merely speculative.

Photo courtesy Flickr user davitydave under this Creative Commons license.

1 2 3 4 5 6 7