Earlier in the week, I reported on the opening two days of the trial between Hulk Hogan and Gawker.com over the latter's publication of excerpts from a secretly recorded tape of the wrestling legend having sex with Heather Cole, when she was the wife of Bubba The Love Sponge. The focus was on jury selection, which was a highly amusing process that was finally completed on Friday, day four of the legal proceedings, with the trial proper starting on Monday morning.
You may be wondering why it took so long to pick the jury. As ABC's chief legal analyst Dan Abrams explained, this is an unusual case where both sides largely agree on the facts of what happened, but disagree on the interpretation of the law. So the jury composition is critical here, with Hogan's side primarily wanting jurors who would be offended at the publication of pornographic material without the parties consent, whilst Gawker would want jurors more concerned about freedom of the press.
Day three started with Gawker issuing the following statement to the press, explaining their defence:
"We are defending the First Amendment against Hulk Hogan’s effort to create a world where celebrities can promote themselves around any topic, in this case sex, and then veto how the media covers their lives. This tape shows Hulk Hogan having sex with his best friend’s wife, and in fact the tape was made by his best friend Bubba who also appears in the video. Hulk Hogan bragged about his sex life for years, denied this particular sexual encounter, and now thinks his own choices are worth $100 million somehow."
As David Bixenspan explained earlier in the week, Hogan's lawyers are attempting to justify the $100 million in damages they are asking for by arguing that for each person who viewed his sex clips he should be compensated the "standard price to access and view" a celebrity sex video. With the video apparently being viewed 4.46 million times and Vivid Video’s celebrity sex website costing $4.95 to access the material that adds up to a significant chunk of the damages being asked for.
The remainder of the day saw jury selection continue, which had its moments of hilarity again, despite being a typically boring process:
The woman says she wouldn't have recognized Hogan on the street, and that she didn't know if he was a boxer or wrestler. #hulkvsgawk— Tom Kludt (@TomKludt) March 3, 2016
Attorney asks somewhat seriously if anyone was upset when Hogan slammed Andre the Giant or when he became "Hollywood Hogan" #hulkvsgawk— Tom Kludt (@TomKludt) March 3, 2016
Very limited knowledge about Gawker among the 91 jurors. Only five said they were familiar with the site. #hulkvsgawk— Tom Kludt (@TomKludt) March 3, 2016
Female juror on Hogan sex tape: "Do I want to look at it? No. Am I willing to, as a citizen? Yes." #hulkvsgawk— Tom Kludt (@TomKludt) March 3, 2016
Male juror: "Unfortunately I had no excuse to not be here." Big laughs from everyone. It's been a very cheery jury selection. #hulkvsgawk— Tom Kludt (@TomKludt) March 3, 2016
Hogan attorney: "NSFW. How many of you are familiar with that acronym?" #hulkvsgawk— Tom Kludt (@TomKludt) March 3, 2016
None of the jurors are familiar with Denton or Daulerio. Gawker attorney jokes that they need to "talk to their PR people." #hulkvsgawk— Tom Kludt (@TomKludt) March 3, 2016
Day 4 was more of the same, as Gawker tried to suss out which potential jurors would be the least conducive to their arguments, until the jury was finally selected, which will be composed of four women and two men, with three alternates (two women and one man):
Attorney asks juror if he could follow the law, even if he disagreed with it. "Probably not," says most honest juror ever. #hulkhogan— Anna Phillips (@annamphillips) March 4, 2016
Juror: "I’m not sure how a sex tape is any of my concern. I just don’t understand how that’s freedom of speech." #hulkvsgawk— Anna Phillips (@annamphillips) March 4, 2016
Gawker attorney, invoking Bill Cosby case, asks jurors if news outlets should take down a story if Cosby objects. #hulkvsgawk— Tom Kludt (@TomKludt) March 4, 2016
Gawker atty: "Should the celebrities have the power in our society to decide what is and is not publishable?" No one says yes. #hulkvsgawk— Anna Phillips (@annamphillips) March 4, 2016
And the jury has been chosen. 6 jurors, 3 alternates. Opening statements start Monday. #hulkvgawk— Anna Phillips (@annamphillips) March 4, 2016
According to David Bixenspan, the jurors selected "All said they had little to no knowledge of the case, and they had a wide range of views on the role of the press."
Day 4 finished with a procedural pre-trial hearing. The key news from this was:
- Gawker's attorneys argued that evidence related to the Erin Andrews case (where a stalker filmed her naked through peepholes and posted the videos online) should not be used in this trial. The judge agreed with Gawker on this issue, partly because her father works in the local area and partly because of potential "confusion on the legal issues."
- It was revealed that Bubba The Love Sponge was refusing to testify in the case. It is likely that Bubba will still be called to the stand by Gawker, but his criminal defence attorney Mark O'Brien claimed that his client would invoke his Fifth Amendment privilege against self-incrimination. Gawker's attorneys argued that this suggested Bubba had perjured himself when he was deposed earlier in the case, which Hogan's side disputed. It should be noted that Hulk Hogan reportedly settled his related lawsuit with his former friend for a mere $5,000 in return for cooperation in his case against Gawker.