Has Gawker Won Lawsuit to Post Parts of Hulk Hogan Sex Tape?

PINELLAS COUNTY, Fla.—Florida's Second District Court of Appeal issued a ruling yesterday striking down a lower court's injunction against Gawker Media's intention to post excerpts from a sex tape starring Terry Bollea—better known to the world as former wrestler "Hulk Hogan"—and Heather Clem, ex-wife of radio personality Bubba the Love Sponge. However, the decision as released carries the statement at the top, "NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED," so exactly what that means for Gawker is unclear.

The Hogan/Clem tape has been in contention since Bollea filed a lawsuit in October, 2012, claiming invasion of privacy, publication of private facts, violation of the right of publicity, and infliction of emotional distress—and seeking an injunction to require Gawker to remove the excerpts from the tape that it had posted online earlier that month. However, after a federal court denied the injunction, Bollea dismissed the federal suit on December 28 of 2012, and filed a nearly identical state court action that same day, also seeking an injunction against the tape's release. That temporary injunction was granted in April of last year by Pinellas-Pasco Circuit Judge Pamela Campbell, who gave no insight into her reasoning for the decision. It was that injunction that the Court of Appeal overturned.

The Court of Appeals, which noted that "orders restraining 'protected speech must be considered presumptively invalid' and will only be permitted if there are no less restrictive means available," found that although Bollea had claimed a privacy interest in the tape not being made public, he nonetheless made reference to the tape in several on-camera interviews with various media outlets (including TMZ), some of which included still shots from the tape.

"Here, the written report and video excerpts are linked to a matter of public concern—Mr. Bollea's extramarital affair and the video evidence of such—as there was ongoing public discussion about the affair and the Sex Tape, including by Mr. Bollea himself," the unanimous court stated. "Therefore, Mr. Bollea failed to meet the heavy burden to overcome the presumption that the temporary injunction is invalid as an unconstitutional prior restraint under the First Amendment. As such, it was within Gawker Media's editorial discretion to publish the written report and video excerpts."

Bollea had also argued that since he was not aware that the tape was being shot as he was having sex with Clem, it was "created in violation of the law." However, since Gawker had not created the tape, but merely come into possession of a copy of it, "The Supreme Court in Bartnicki [v. Vopper] held that if a publisher lawfully obtains the information in question, the speech is protected by the First Amendment provided it is a matter of public concern, even if the source recorded it unlawfully," the court found. "As the speech in question here is indeed a matter of legitimate public concern, the holding in Bartnicki applies."

Finally the state appeals court essentially agreed with Gawker that even though Bollea's motion for a preliminary injunction had been denied in his now-defunct federal lawsuit, the Florida court was not prevented by collateral estoppel (also known as issue preclusion) from ruling on the case, based on a number of factors that won't be detailed here.

So, those who'd like a peek at some of Hulk Hogan's bedroom activities may soon be able to see them on Gawker.com—unless Bollea files an appeal and the court that hears that appeal overturns the current ruling.

The Florida Second District Court of Appeal decision can be found here.