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Hulk Hogan vs. Gawker Trial (Day 6): What ya gonna do when moral outrage runs wild on you?

Moral outrage was the theme of the day as Hulk Hogan's lawyer Shane Vogt aggressively played his righteously-indignant hand against A.J. Daulerio and a juror asked Emma Carmichael whether she ever had intimate relations with her superiors.

By Keith Harris
Hulk Hogan: Hoping moral outrage is the key to victory.
Hulk Hogan: Hoping moral outrage is the key to victory.
Pool/Getty Images

The day started with another pre-trial hearing where Gawker opposed Bubba The Love Sponge's attempt to quash his subpoena, which Bubba's lawyer was attempting to block by pleading the Fifth Amendment (protection from self-incrimination). Gawker even argued that the case against them should be dismissed if Bubba couldn't testify because they would be deprived of evidence that was necessary to establish important facts central to their defence. However, no decision was reached on this matter before the trial recommenced.

Gawker's top lawyer Michael Sullivan then proceeded with his defence by calling his first witness to the stand A.J. Daulerio, who wrote the article that led to this lawsuit, which was a necessity after he had been shown sarcastically suggesting that the age limit on when celebrity sex tapes are not newsworthy was four years old in an earlier videotaped deposition.

Before we got to the point where Daulerio rolled back those remarks, he talked about being a fan of the World Wrestling Federation from the early 1980s to 1992, calling Hulk Hogan "one of the best professional wrestlers of all time", how he had rooted for "Rowdy" Roddy Piper at the first WrestleMania and that he even had once owned a Hogan action figure. Yes, Daulerio was once a little Hulkamaniac!

Sullivan then laid the groundwork to demonstrate that Daulerio had known that multiple sites had already reported on the existence of Hogan's sex tape and one had even posted still photos from it before he wrote his piece, hence proving its newsworthiness. They also emphasised how Gawker hadn't even paid for the tape, which was sent anonymously. Tony Burton (a talent agent for Mike Calta, radio competitor of Bubba The Love Sponge), who was a fan of Daulerio's work, facilitated their acquisition of the material by getting Gawker's mailing address for someone he claims was an anonymous caller to his client's show.

Daulerio confirmed that upon first watching the tape he had indeed found it amusing because "I grew up watching Hulk Hogan and this was not a situation I expected to ever watch him in." However, Sullivan then walked Daulerio through his attempts to act responsibly after deciding he was going to write about what he had just seen. Daulerio argued that if he had wanted to focus on the sex from the tape, he would have made a "substantially" different highlight reel to include with his article. The first edit was three minutes long, he had it shortened to one minute 41 seconds with only nine seconds of graphic material. Daulerio had subtitles added to his video, because he wanted to focus on the conversation between the parties involved rather than the sex. He decided not to blur or pixellate the nudity in the video because it was already of poor quality. He also talked with Gawker's business department to remove advertisements from the article as it was NSFW, so the company didn't (directly) profit off of it. Daulerio did receive a $2,000 bonus at the end of October 2012 for exceeding traffic goals for the month, but claimed that wasn't the motivation for the Hogan story.

Sullivan then went through the article with Daulerio paragraph by paragraph to get him to explain what he had written and why. For example, the clickbait headline "Even for a minute, watching Hulk Hogan have sex in a canopy is not safe for work but watch it anyway" was a somewhat facetious observation about human behaviour.

Daulerio claimed that he was pleasantly surprised by the popularity of his Hogan story, which makes sense as this was at a time when mainstream sites hadn't yet realised how successful wrestling related exclusives could be. Part of that success Daulerio explained was Hogan going on a media tour criticising its publication and then suing Gawker, raising the question of who was to blame for the video going viral.

Now, was Daulerio's time to address the pink elephant in the room. When asked whether he was being serious when he said he'd be willing to publish a sex tape of a 5 year old, Daulerio responded with the correct answer this time: "Not in the slightest." Daulerio agreed with Sullivan that the opposing attorney knew he was being sarcastic.

Daulerio gave a rather weak explanation for why he had not investigated the source of the sex tape, namely it was of no real interest to him given the nature of the story he was writing. He didn't give Hogan the opportunity to respond because he had already commented on the sex tape in question to TMZ. Defending his decision to post the article, Daulerio admitted that publishing information that the subject isn't going to like "comes off as pretty callous", but argued that's a journalist's job, whilst adding that privacy for public figures is "limited". Sullivan's questioning of Daulerio closed with the latter remarking that as Bubba The Love Sponge's voice was on the sex tape, "there didn’t appear to be that much privacy."

Then it was time for Hogan's lawyer Shane Vogt to cross-examine Daulerio, who behaved like a shark smelling blood, although he may have "overplayed his righteously-indignant hand" early on. Vogt insinuated that Daulerio had committed perjury by being sarcastic in deposition (or was doing so now) and asked morally outraged questions like:

  • "Do you think that's a funny topic to joke about, child pornography?"
  • "It's a smirk, because you don't think the First Amendment is that serious, do you?"

    • That was until an objection led to Vogt toning down his line of questioning. The tactic clearly worked to some degree in rattling Daulerio, however, as he came across underprepared and nervy at times afterwards, sometimes going back to his bad habits of flippancy and sarcasm. In particular, Vogt caught Daulerio contradicting himself compared with his previous testimony on whether he had known that Hogan was being secretly taped at the time of publication. He was also forced to admit that Hogan's penis wasn't newsworthy.

    After lunch, Gawker did their utmost to convince Judge Pamela Campbell that Bubba The Love Sponge should be forced to testify, going so far as to call him a "pathologically untrustworthy person" and that they believed that Hogan "in all candor, has a reputation for dishonesty as well." However, the judge remained unswayed by their arguments and granted Bubba's request to quash his subpoena. Shortly thereafter she did agree to a compromise where Bubba would be questioned "for the record", but outside the presence of the jury, after Gawker complaints "that it’s a rigged game at this point."

    Daulerio's redirect when they formally reconvened didn't last long and just covered old ground. One juror asked: "Why didn’t you write an article on celebrity sex tapes using tapes that were already available?" His terse noncommittal answer: "No reason" didn't seem to win anybody over.

    Emma Carmichael was Gawker's second witness, who was the website's managing editor in October 2012 and is now the current editor-in-chief of Jezebel, another Gawker Media property, who worked with Daulerio on the Hogan story. Carmichael came across a lot more likeable and cool under questioning than Daulerio. She largely backed up his version of events under direct examination, although she did admit to personally considering how Hogan would feel about the video they published.

    Hogan's lawyer Charles Harder then cross-examined Carmichael, starting by emphasising how young and inexperienced she was to be the number two in command of such a major website in 2012 (she was 23 at the time and worked her way up from being an unpaid intern about 18 months prior) without any formal training. Harder introduced as evidence an email that all Gawker.com editors received including Carmichael that informed them in March 2012, over six months prior to their litigious article, that the Hulk Hogan sex tape being shopped around was filmed without his permission and it was nothing less than an outrageous invasion of his privacy. More damning email exchanges between Carmichael and Daulerio were presented where they discussed posting a second Hogan sex video on Gawker.com a week after The Hulkster had sued the website. Harder criticised Carmichael for failing to investigate whether Hogan had been the victim of "revenge porn" and tried to paint her as a hypocrite by discussing an article posted at Jezebel since she has been in charge critical of Tumblr for failing to take down such pictures.

    In Sullivan's redirect, Carmichael defended herself from the last Harder attack by arguing that revenge porn was not "big in the public consciousness" in 2012 and it had a narrower definition at the time, whilst today it covers "a much bigger realm".

    The lowlight of the day was Harder's early line of questioning leading to a juror asking Carmichael "Did you in the past or do you have an intimate relationship with Mr. Daulerio or Mr. Denton?" A firm no was the answer. The insinuation was that Carmichael had slept her way to the top, not understanding that Denton is openly gay or that it's fairly common in online journalism for someone to work their way up from the bottom. Frankly I'm surprised that the judge didn't rule this an inappropriate question to ask the witness, as it's not at all relevant to the case.

    The day closed with Sullivan starting to question his third witness, Nick Denton. Denton came off as remarkably relaxed talking for an hour about his early career, his decision to create Gawker and his journalistic ethos. He did a great job of humanising himself after his website had been vilified for over a week by Hogan's lawyers. We'll see if he comes unstuck under cross-examination on day 7.

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