A Tale of Two Tapes: Erin Andrews and Hulk Hogan

Sex, lies and videotapes have been playing out in two heavily-watched courtroom cases involving celebrities Erin Andrews and Hulk Hogan. In the Erin Andrews case, a jury has awarded her $55 million as a result of her lawsuit against a Nashville Marriott and a man who took and posted a nude video of her.Andrews was asking for $75 million in her civil suit against West End Hotel Partners, which operates the Marriott at Vanderbilt, and Michael David Barrett, who tampered with her hotel room’s peephole to record a video of her while she was in her hotel room. Barrett then posted the video online in 2009 and the video went viral.

Hogan, whose real name is Terry Bollea, is suing online magazine Gawker for publishing a portion of some salacious footage in 2012. He is using for $100 Million.The video showed Hogan having sex with Heather Clem, then the wife of Tampa-area radio host Bubba “the Love Sponge” Clem, one of Hogan’s best friends. It appears that the Clems knew the sex was being recorded but it is not clear if Hogan knew.

But other than the fact that the tapes show naked famous people, they bear no similarities under the law and Hogan is not likely to get the same result as Andrews. Andrews’ privacy was invaded when the hotel negligently allowed Michael Barrett to find out in which room she was staying so that he could set up the surveillance equipment in the room next door. She had an expectation of privacy in her room and a hotel should take reasonable steps to protect a guest’s privacy, celebrity or not. The jury found Barrett 51% responsible and the hoteliers 49% responsible, which while you can quibble over the breakdown, at least did give more responsibility to the jerk who taped and distributed the footage. Quick comment on the size of the verdict: you would shake your head in wonder if you saw the size of verdicts and settlements given to the wrongfully convicted - they pale in comparison to what this jury said this invasion of privacy was worth. Undoubtedly, this number was driven up when Marriott reps were caught viewing the video at dinner while the trial was still going on. It sent a message as to how this invasion of her privacy is so pervasive and never-ending and likely angered the jury as well.

Hogan will not fare as well in my opinion. His case is drastically different. First of all, he would have to prove that he did not consent to being videotaped. Next, Gawker did not tape him, they merely received the video and published a snippet of it on their website. Hogan is certainly a public figure under the law and arguably he has made his sexual antics a topic of public debate by his appearances ironically on the “Bubba The Love Sponge Show” and other talk-radio outlets. So I think the First Amendment will protect the media’s right to air that portion of the tape. The Supreme Court in New York Times v. United States upheld the press’ right to publish information of “great public concern” obtained from documents stolen by a third party. The Court focused on the stolen documents’ character and the consequences of public disclosure, not on the fact that the documents were stolen. Then in Bartnicki v. Vopper the Supreme Court ruled that a radio personality could not be held responsible for broadcasting illegally wire-tapped conversations about a teacher’s strike as long as the media outlet did not participate in the illegal recording. The Court said that a stranger’s illegal conduct is not enough to remove the First Amendment shield given to speech about a matter of public concern. The only real issue in the Hogan case therefore is whether this tape dealt with an issue of public concern and I think in light of today’s celebrity culture obsession that the court will rule it is of public interest. Whoever shot the video owns the intellectual property rights in the video so Hogan could not even use IP law to get Gawker to take the video down or to pay for its unlicensed use. The judge presiding over the Hogan case did not even let his lawyers compare it to the Andrews case during jury selection.

Even if Hogan were to win the case, I can’t see a jury coming anywhere near $55 Million in damages. The sleazy nature of what Hogan was engaged in makes him far less sympathetic than Erin Andres who was completely innocent in her actions and was merely getting dressed in her hotel room, something all jurors could relate to and understand. Her fame only compounded the damage in that a video of an unknown woman getting dressed in a hotel room, would not have the same attention and impact upon the unknown woman as it did in Ms. Andrews’ case due to her fame. For example, in Revenge Porn cases, victim feel much more harmed when the images or videos that are posted are accompanied by their name and address. The ability to be “identified” with the picture or clip raises the stakes tremendously for Revenge Porn victims, even if they are not famous. So I could see how a jury would understand that for someone viewed by millions on a regular basis, this invasion of privacy would have a tremendous impact.

Hogan, on the other hand, hardly cuts a similarly sympathetic figure. That, coupled with the defendant being a media company with First Amendment protection in its corner means he will likely go home with significantly less than Ms. Andrews if not 100% empty-handed.

UPDATE Well I certainly got that wrong. A jury awarded Hogan $115 Million in damages including $60 Million for emotional distress. Let’s see what Gawker does next. It will have to appeal obviously and post a hefty bond to secure the appeal but it has no choice. That verdict would have a devastating effect on its company if it stands. It will also have a chilling effect on media outlets in the future.