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Hulk Hogan vs. Gawker Trial (Day 4): Does unethical = illegal?

On a relatively tame day, Hulk Hogan's expert witnesses on journalism ethics and selling sex tapes seemed to undermine his case. We found out that unethical journalism doesn't necessarily equal illegal and sex tapes can humanise the individual involved.

By Keith Harris
Pool/Getty Images

The fourth day of the Hulk Hogan vs. Gawker trial was a relatively tame affair with no stars on the stand and no outrageous quotes to spawn viral coverage of the case.

We started where we left off yesterday with Hulk Hogan's expert witness on journalism ethics, Professor Mike Foley. Foley was under cross-examination this time, however, and he had a tough time answering Michael Sullivan's (Gawker's lead attorney) pointed questions.

Sullivan painted Foley as an out-of-touch fuddy-duddy with his line of attack. Sullivan forced Foley to admit that he hadn't actually worked in a newsroom for 24 years and hadn't been a reporter for 43 years, and then started using the phrase "back in the day" whenever it was appropriate. Sullivan stressed how Facebook, YouTube and Twitter weren't even around when Foley was last involved in editorial decisions at the St. Petersburg Times. Sullivan correctly emphasised how the Society of Professional Journalists code of ethics were guidelines for good practice, but weren't law. Foley agreed with Sullivan that the First Amendment trumped that ethical code.

Sullivan brought up examples where Foley's newspaper had published nude photos, including a news story about Tampa's efforts to impose restrictions on lap dances that described a secret video of two erotic dancers "going too far". Sullivan even showed a video package about the Hogan sex tape scandal from a local ABC affiliate, who Foley had branded as reputable, which included non-pornographic excerpts of the tape. The cross-examination concluded by Foley agreeing that all publications are protected by the First Amendment unless they break the law.

The afternoon session was pretty mundane. Firstly, Foley was re-questioned by Hogan's attorney who went through all the examples Gawker had brought up and asked whether they were a fair comparison to his client’s situation. Foley naturally disagreed. This portion ended with Foley also disagreeing with A.J. Daulerio's flippant remark that if a child is above 4 years old, it’s newsworthy to publish a sex tape of them.

A video deposition of Scott Kidder, former Gawker COO, then aired, who largely explained the company's business model (reliant on clicks based advertising revenue), their bonus structure (writers being rewarded for surpassing traffic targets), and the success of the Hogan story (in 2012 it was the second most viewed story on the website):

There were more dry videotaped depositions with some non-answers mixed in from Andrew Gorenstein, Gawker Media's former president of advertising and Peter Horan, a finance expert hired by Gawker. These belaboured the point about how Gawker was primarily motivated by hits, because that's how they made money:

The final videotaped deposition was more interesting, as questioned was Kevin Blatt, an expert in the field of selling sex tapes. This seemed to undermine Hogan's case as he argued that male celebrity sex tapes traditionally are not worth as much as a female celebrity's, and that they can humanise the individual involved as "It brings them right down to where you and I are." He also recalled branding TMZ, the site Hogan is friendly with, as "the new porn". However, he did admit that Hogan's sex tape would have value to a site like Porn Hub and that he was paid $3,000 by Sex.com to send a letter to Hogan soliciting the footage. Maybe Hogan's side played this deposition because it proves Hogan wouldn't have wanted to sell his sex tape, as it didn't have much value in the marketplace, but it also seemed to hurt his case for damages.

It should be noted that Blatt had told BuzzFeed News last year that Hulk Hogan's sex tape was worth absolutely nothing because "No one wants to see the mustached, [61-year-old] wrestler have sex." He even told Hogan's lawyers this when they approached him to be an expert witness on the case:

"I don’t think that’s the answer they wanted to hear. My position has always been, and this isn’t isolated to Hulk Hogan, is that male sex tapes don’t sell. No one cares about his sex tape. There was a Colin Farrell sex tape and no one really cared. Women don’t make up the population of who buys porn."

Hogan's prosecution wraps up tomorrow with their last two witnesses. Gawker's defence will start next week.

On a final note, Hulk Hogan (not to be confused with Terry Bollea) is hoping for his biggest comeback victory ever:

We will find out if his dreams come true in a couple of weeks time.

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