Recently, wrestling’s biggest legends bear the dubious distinction of bringing high-profile defamation suits, which potentially threaten the hallmarks of the First Amendment. Jesse “the Body” Ventura and “the Immortal” Hulk Hogan both find themselves as plaintiffs on appeal or in remand in these suits. This is just the current example in a line of cases, where celebrities twist the law to take revenge on their media tormentors.
Ventura initially received a sizable jury verdict against Chris Kyle for defaming the former governor in Kyle’s memoir “American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History.”1 In the book, Kyle recalls an encounter with another former Navy SEAL, identified as “Scruff Face.” Allegedly, Ventura disparaged the Iraq War and stated that the SEALs, “deserved to lose a few.” Kyle admitted “Scruff Face” was Ventura during the publicity tour for the book, including a memorable appearance on “The O’Reilly Factor.” While Ventura adamantly disputes the tale, testimony at trial was split right down the middle, because each side was able to produce credible witnesses. The jury awarded Ventura $500K under defamation and $1.35 million under unjust enrichment.
Despite the jury’s verdict, a judge vacated the award on appeal and remanded the case due to prejudicial questioning that focused on the notion of insurance covering any damage caused by Kyle’s estate. The improper association between the publishers and the insurance policy effectively prejudiced the jury in their deliberations. Additionally, the appellate court overturned the $1.35 million unjust enrichment claim holding that other adequate legal remedies were available, citing the initial defamation award. Furthermore, an unjust enrichment claim was inadequate, because Kyle and Ventura were never party to a contract or quasi-contract.
While some commentators hail this result as a sign of courts protecting the First Amendment,2 that inference reads more into the opinion, then presented. The appellate court solely focused on the factual prejudice to the jury, not the First Amendment. In fact, a dissenting judge argued that the questioning did not even prejudice the jury. Commentators may claim that the Eighth Circuit attempted to find a covert way to make the defamation claim go away, but this cynical view overlooks the fact that the counsel’s questioning undoubtedly prejudiced the jury.
Drawing a connection between this case and the Gawker, Hulk Hogan dispute is appropriate but misleading. The Ventura opinion will have little to no effect on the appeal in the Hulk Hogan dispute. While there are concerns about protecting the freedom of the press, an opinion focusing on prejudicial jury error will not likely change the current arena of defamation cases.
In the Gawker case, Hulk Hogan sued Gawker for releasing a sex tape that featured Hogan and Heather Clem, the wife of Bubba the Love Sponge, a Florida radio host and friend of Hogan.3 Apparently, Bubba blessed the affair, yet Hogan did not know the encounter was being filmed. Hogan initiated a suit, seeking $100 million in damages.
Within the trial, a confusing distinction between the character of Hulk Hogan and the underlying man of Terry Bollea complicated the proceedings. Gawker argued that Hogan was not sufficiently harmed by the video, because he had a history of discussing his sexual exploits in the public media. Yet Hogan argued those statements were made by the wrestling character, not Terry himself.
Both of these cases involve parsing the First Amendment boundaries of newsworthiness. These suits appear to curtail the freedoms of the press, while succumbing to the public pressure placed on media outlets. It was shocking to discover that the jury awarded Hogan $115 million in compensatory damages in addition to punitive damages.4 This award is more than the $100 million Hogan sought. Immediately, Gawker CEO Nick Denton protested the verdict and outlined a plan to appeal. Denton argued that key evidence and witnesses were withheld from the proceedings, affecting the jury’s outcome.
The Gawker case demonstrates the divide between juries and judges that may assist Gawker during its appeal process. Gawker’s legal justifications heavily relied on the argument that the sex tape was a newsworthy matter of public concern, protected by the First Amendment. Even though this argument is supported by Florida case law, it is unlikely to sway a jury. To make practical matters more complicated, the Silicon Valley billionaire, Peter Thiel, has provided Hogan with an unlimited bankroll for legal fees. Thiel was previously outed as gay by Gawker, explaining his contested feelings toward the media company.
Furthermore, the appellate court seems to side with the new outlet already favoring them in past disputes. Hogan initially received a temporary injunction from a Florida state court, but the appellate court issued a stay, preventing the injunction from going into effect. Gawker asked the lower court to dismiss the case, yet the presiding judge refused. The appellate court dismissed a writ asking for the case to be dismissed on First Amendment grounds. By dismissing, rather than denying the writ, the appellate court implied that they agreed with Gawker’s legal argument but did not have the jurisdiction to dismiss the case.
Thus, scholars believe that the Florida courts are undercutting the freedoms of the press. Many argue that Gawker should be protected by the First Amendment, because the unsavory tape related to Hulk’s public figure status, repeatedly discussing his sex life.
Past cases demonstrate that newsworthiness may still not allow Gawker to walk away without any liability. In the past, Bret Michaels sued Internet Entertainment Group for distributing a sex tape that featured Bret Michaels and Pamela Anderson.5 The court held that the existence of the tape was newsworthy, but due to the copyright in the film, IEG could only discuss or write about the tape and couldn’t show it.
Back to Ventura, he will likely ask for a rehearing and be denied. As a result, the two sides will probably engage in settlement discussions. Even though both sides remained distant to one another, the high legal fees will incentivize a settlement. From the publisher’s viewpoint, it does not want to send a signal of deep pockets for defamation suits. Additionally, on the other side, Ventura is notorious for sticking to his principles and not back down, similar to his refusal to take airplanes due to the TSA.