Bob: This is a special podcast edition of On the Media. I'm Bob Garfield. Almost every detail of the legal battle between the American wrestler Hulk Hogan and the website Gawker is salacious. The battle focuses on a nearly two-minute excerpt of a sex tape made in 2007 that Gawker published in 2012. It features Hogan, real name Terry Bollea, in flagrante delicto with the then wife of his friend, a shock jock whose legal name is, of course, Bubba the Love Sponge Clem. Hogan claims he didn't know Bubba had wired his bedroom with cameras. Documents unsealed this week show Bubba said Hogan certainly did know. Hold that thought. If you're prepared to accept this soap opera as a First Amendment test, that dispute matters. Meanwhile, here was Hogan on ABC's The View, explaining his grievance in terms of cyber bullying. 

Hogan: I made people aware that this shouldn't happen to normal people, you know. And, and, especially any kids that are on social media, the kids take pictures of them at high school. Gawker's the ultimate bully and I just didn't want it to happen to you or anybody here.

Bob: Maybe that was his motive in filing suit, although the case began as a claim of copyright infringement. Hogan had asserted that his naked image belonged to him, not Gawker. But that legal strategy was unavailing, so he asked a Florida court to find Gawker liable for invasion of privacy and emotional distress. And, the jury delivered, to the tune of $115 million in compensatory damages plus $25 million more in punitive damages. Gawker says it will appeal, both on First Amendment grounds, and based on suppressed evidence that Hulk Hogan was not shy about his private parts but about his private thoughts. Heather Dietrick is President and General Counsel of`Gawker Media. Heather, welcome to On the Media.

Heather Dietrick: Thank you, glad to be here.

Bob: It probably wasn't a huge surprise to you that the jury in St. Petersburg, Florida would decide in Hulk Hogan's favor. You actually said so in public before the verdict even came down. The numbers were a bit startling, though. 

Dietrick: It's certainly a huge number and has a chilling effect. It wasn't entirely surprising given that we weren't able to tell the jury our full story. 

Bob: Yeah, chilling effect, we will come to that because that gets to the First Amendment claims. What exactly would the public interest be in you showing this particular tape? It doesn't add any extra information, it's just lurid, grainy video. What did it add to the public understanding of anything?

Dietrick: Sure, the tape did a couple of things. Number one, it definitively proved that it was indeed Heather Clem that Hogan appeared with in the tape. There was public discussion about who was in that video. Hogan himself was out in the media saying he had never slept with Heather Clem, that he wouldn't do that to his buddy, that he adhered to some kind of man code before the tape was released. He later said he had sex with so many brunettes he couldn't remember who this one was. So the tape clarifies that. Number two, it reveals that Bubba blessed the encounter. Before our publication you had media outlets reporting to the contrary, that Bubba was catching his wife in some kind of affair. So we showed a few seconds of the tape to say, "hey, wait a second." Bubba comes into this video while the two have started, he says, "hey, you two do your thing." Third, it shows something about the public's fascination with celebrity sex tapes and how, in fact, when we watch them, they end up being pretty ordinary, pretty mundane. Which was a good part of what the commentary was about. And lastly, it's visual proof that audiences today demand. You know, we used just a couple seconds of sex to show that he was in fact with his best friend's wife, with his best friend's blessing, and then mostly conversation between the two to reinforce the point that our author was making.

Bob: You know, I must ask you, Heather, it is Gawker's contention that if a public figure makes claims about his or her sexual behavior as a part of building their media persona that they are at pains to prove it if called upon to do so?

Dietrick: No, not at all. That's simply one of the many facts that shows that this topic was in the public domain. That people were talking about it. He's out there talking about this tape, and then dozens and dozens of media outlets are reporting on the existence of the tape, surmising what the circumstances are, what's going on, who's in it. All of those taken together show that this is topic of public concern, that the media is free to report on, free to add new documentary evidence to. 

Bob: Is the definition of newsworthy, What people are curious about?

Dietrick: Um, it's certainly a big component of it. If people are talking about a subject, even if it's not a very high-brow intellectual topic, but it's something that, you know, much of the country is watching and engaging in and other outlets are talking about it too, that's sort of one of the easier tests for newsworthiness. 

Bob: I can't begin to express to you, Heather, how dispirited I am to be even having this conversation. Not withstanding the First Amendment implications, but there are journalists all over the world risking their lives to expose political crimes, corruption, incompetence and malfeasance, and here we are talking about the newsworthiness of a professional wrestler's sex tape. Before we even get to the nitty gritty of this, is there any part of you as the general counsel for a media organization that is embarrassed that this is what you're going to court to defend? Does it makes you think about the essential Gawker-ness of Gawker?

Dietrick: Embarrassed, not at all. The First Amendment is made on these tougher cases. I wouldn't pretend that this is the loftiest story at all. We do all types of stories. We've had a significant hand in revealing that Hillary Clinton had a secret email account. We were the ones to make a FOIA request and be denied and then sue the government for those emails, and successfully reveal quite a bit about what she had in there. We do all sorts of reporting. This was a story from years ago that people were fascinated with. It's not everyone's cup of tea. It doesn't have to be. The First Amendment protects all sorts speech, including some that some people find a little bit icky. But, frankly, these are tough cases that define the law.

Bob: Alright, well I feel better I've gotten that off my chest. Now, I can proceed on the First Amendment question. A legal scholar named Erwin Chemerinsky has said that this case doesn't necessarily have very far flung First Amendment implications. It just simply says that it is an invasion of privacy to make publicly available a tape of a person, I'm quoting here, "having sex without that person's consent. I don't think it goes any farther than that." Is he wrong?

Dietrick: I do think he's wrong. I think it has far reaching effects. You can take the sex tape out of it. What you basically have is a public figure embroiled about a topic that the public cares about, joining in that conversation himself, and when it takes a turn that he doesn't like, asking the government to exercise a line item veto over that story and say, "hey, I didn't like this word here, I didn't like that sentence here, I don't like that bit of video there." That's just not the country that we live in. The jury heard the incorrect statement from the other side that they never cared about this story. But the truth of the matter is they sued us to have the story taken down and the video taken down, and fought to do that for quite a while, and I think it's very dangerous precedent. 

Bob: We should say that at the moment there is no legal precedent in place here. This is a lower state court decision on matters of fact, and as on matters of law, it is to be reconsidered presumably in an appeals court where legal precedents are born.

Dietrick: That's correct, and the appellate court has already ruled in this case that our publication was a matter of public concern and protected by the First Amendment. They did that after the trial court judge ordered us to take the video and the text down in the very early days of the case. 

Bob: You are going to appeal on this, partly on the basis of impeaching Hulk Hogan's entire claim of emotional distress. You believe that you have documents proving that his motives in filing this lawsuit had nothing to do with emotional distress. What was he up to here?

Dietrick: Documents unsealed by the appellate court reveal that if he was worried about anything, it was about the existence of another tape where he was saying racist and homophobic comments. We weren't able to show that in front of the jury, but our argument is that that's wholly relevant to damages. This thing he was really concerned about was the release of that tape and that's not too surprising when you put that together with the deep detail in which he's spoken about his sex life, all sorts of lurid, graphic details in his career. 

Bob: It's been in some ways a tough year for Gawker. The company had to explain another post it did about an executive at another publishing company, texts of him trying to hire an escort. It was egg on your face because nobody could figure out how this person was sufficiently public and how this private behavior was anybody's idea of newsworthy. Your publication had to apologize. Do you think this was in the minds of the jury in St. Petersburg? That this decision was not so much a compensation to Hulk Hogan, but a rebuke of Gawker-style gossip media?

Dietrick: The jury didn't know too much about us before sitting down in that box, so all they heard was what plaintiff put on. It didn't mention that story, but they used our Fifth Avenue address like a four-letter word. Made a clear distinction between the local folks and sort of these deviant and foreign bloggers from New York. I would say that was probably effective, given the numbers that we saw them put up.

Bob: The New York values dog whistle.

Dietrick: Uh, to some extent. They were certainly highlighting the fact that we are a New York company. You know, not everything we do is to their tastes and, to a large part, I think plaintiff's attorneys made this a trial about taste. And, that of course is not what the First Amendment is about. You know, you can publish about a lot of different things that are distasteful to different people. Not every publication is going to be everyone's cup of tea, but that doesn't mean that it's not protected in this country.

Bob: What happens if you get another Hulk Hogan sex tape today in which he does or says something else outrageous? Do you run an article about it, today, pending a decision from an appeals court?

Dietrick: I think like all of the decisions we make, they're really context dependent. You know, when the celebrity nudes were released, we didn't run those. Didn't find anything newsworthy about them. I think when we ran the couple seconds of sex in this tape we were in a different era. The use of the tape was lawful then, and lawful now, but we're always responding to our readers. That was sort of peak celebrity sex tape era on the internet. That's partly the point that our journalist was making. That there was this real public fascination in this country with those tapes. We're in a different era now, and so the exact circumstances of the tape and the climate in which we're writing would determine that decision. 

Bob: Alright, Heather. Many thanks.

Dietrick: Thank you.

Bob: Heather Dietrick is President and General Counsel of Gawker Media. This has been a special podcast edition of On the Media from WNYC Studios. I'm Bob Garfield.