UPDATE: The jury in Hulk Hogan’s trial evidently found his experts to be persuasive. After only six hours of deliberation, the jury awarded Hogan $115 million in damages and an additional $25 million in punitive damages. Readers might be interested in Peter Horan’s firsthand account of what it was like to serve as an expert witness for Gawker during the Hogan trial.
As the ExpertPages blog noted in June 2015, a blogger professed to be shocked by the fees that Hulk Hogan was paying an expert witness who assisted in his invasion of privacy lawsuit against Gawker. Now that the case has finally come to trial, Hogan can decide whether his expert is worth the money.
The Hulk Hogan Trial
Terry Bollea, known professionally as Hulk Hogan, sued Gawker under Florida law for invasion of privacy. Gawker, a website that brands itself as a “one-stop guide to media and pop culture,” specializes in celebrity gossip.
The lawsuit contends that Gawker violated Hogan’s privacy rights in 2012 by posting a video made in 2006 that shows Hogan having a sexual encounter with Heather Cole, the wife of his former friend Bubba “the Love Sponge” Clem. The video was recorded without Hogan’s knowledge or consent. Hogan’s lawsuit also alleges that Gawker earned profits to which it was not entitled by exploiting his public image.
Hogan’s invasion of privacy claim is based on a Florida law that prohibits the publication of “private facts.” Gawker contends that Hogan’s frequent public references to his sex life and his confession of infidelity in his autobiography have transformed conduct that is ordinarily private into a matter of public interest. Gawker argues that the video was part of a legitimate news story in light of public discussions of the sex tape that had been ongoing for months before Gawker posted it. Gawker maintains that it had a First Amendment right to report and to comment upon information that had captured the public’s attention.
Hogan’s lawsuit tests the line between an individual’s right to privacy and the media’s right to report the news. Given Hogan’s status as a public figure who, for many years, has welcomed publicity, the First Amendment plainly protects news reports and commentary concerning the contents of the video. Less clear is whether Gawker had the right to post the video itself.
The trial judge ruled that Gawker had no First Amendment right to post the sex tape, a decision that an appellate court will likely review if Hogan prevails. In the meantime, further investigation is needed to determine whether the tape revealed “private facts” or whether Gawker reported and commented upon newsworthy facts that were already in the public realm. Gawker contends that it merely “joined a conversation” that was already ongoing, while Hogan argues that the conversation did not include a video of his sexual activity until Gawker revealed it to the world.
Hogan’s Economic Experts
Hogan rested his case at the end of the first week of trial. He relied upon two experts to establish his economic damages. Shanti Shunn, a digital marketing strategist, testified that the sex tape was viewed 4.5 million times, not counting another 99,000 views on You Tube. About 2.5 million of those views occurred on the Gawker website.
Shunn testified that the Gawker site experienced a substantial spike in views immediately after posting the video. He admitted on cross-examination that he could not say whether the page views represented unique visitors or a lesser number of visitors who viewed the video multiple times.
Jeff Anderson, a director of valuation and analytics at a consulting firm that specializes in intellectual property, also testified that Gawker experienced a significant increase in web traffic after posting the video. He estimated that Gawker’s value increased by $15 million as a result of the additional traffic. Gawker is expected to challenge Anderson’s estimate of the company’s value when it presents its defense.
Hogan’s Liability Expert
The blogger who professed surprise that an expert could charge $250 per hour ($350 per hour for trial testimony) was referring to Mike Foley, a journalism professor at the University of Florida. Hogan’s attorneys relied on Foley to establish that the sex video was not newsworthy.
Foley testified that while Hogan’s conduct could be considered newsworthy, the video is “gratuitous” and should not have been posted to the website. He also testified that Gawker violated the Society of Professional Journalists’ Code of Ethics by posting it. The Code, however, includes a disclaimer that draws a distinction between ethics and newsworthiness. The disclaimer was apparently added to the Code in an effort to prevent the Code from being used as evidence against journalists in cases like Hogan’s.
Gawker’s attorney attacked Foley on two fronts during cross-examination. First, Foley conceded that publishers make difficult judgments about newsworthiness every day, and that what seems newsworthy (or, for that matter, offensive) to one person might be viewed in a different light by others. The cross-examination explored the newsworthiness of a variety of sex-related stories, from Magic Johnson’s HIV to the 1991 Vanity Fair cover that featured the photograph of a nude (and pregnant) Demi Moore.
The second line of attack focused on Foley’s credentials. Gawker’s attorney pointed out that Foley has not been a reporter for 43 years and hasn’t worked in a newsroom for 24 years. The cross-examination was designed to establish that Foley is out of touch with modern journalism, particularly internet journalism, which did not exist when Foley was a reporter. Whether the jury will believe that an academic cannot keep abreast of journalistic developments without practicing journalism remains to be seen.
Was Foley worth the fee that so shocked the blogger? Reviews are mixed. CNN reported that “Foley appeared flustered,” paused for long periods before answering questions, and struggled with his answers. The Hollywood Reporter suggested that “blistering” questions exposed the “faultiness” of Foley’s judgments. But media outlets may have reason to root for the media during their trial coverage. Hogan’s attorney said he was pleased with the testimony, but he can hardly be expected to say otherwise. In the end, the jury’s opinion will be the only one that matters.