All told, today felt like the first big win for Gawker so far in the civil trial of Terry “Hulk Hogan” Bollea’s lawsuit against them. The day started with cross examination of journalistic ethics expert Michael Foley, who began testifying yesterday. Gawker defense counsel Michael Sullivan had his best performance so far, brilliantly setting up Foley to get up exactly the answers he wanted, with Foley seemingly being none the wiser until very late in his testimony.
Sullivan completely neutering Foley’s “Cheerios Test” argument. The test is “Would this upset someone eating breakfast?” Foley hasn’t worked in a newsroom in decades, so he has no online journalism experience. Sullivan used that in his favor on his way to establishing that, besides only being an ethical guideline and not law, the Cheerios Test could vary based on readers’ expectations from a specific publication.
https://www.youtube.com/watch?v=Mn7dN2xkgbM
Later, he asked if Foley’s own St. Petersburg Times violated the Cheerios Test with various stories, including one about the famous Vanity Fair cover photo of a nude, pregnant Demi Moore. The end result was getting Foley to say he ran the cover photo in the paper because…people were talking about it. Which is, basically, Gawker’s defense against Bollea/Hogan. Â On redirect, Hogan’s lawyers tried to classify Sullivan’s line of questioning as equating things like Moore’s consensual photo shoot to Bubba Clem filming Hogan without his consent, but that’s not what they were doing.
In addition the Society of Professional Journalists were not happy with their code of ethics and the law being muddied. The SPJ ethics committee chairman, Andrew Seaman, told CNN that “The SPJ Code of Ethics is not relevant to whether an act is or is not legal. The words ‘ethical’ and ‘legal’ are not synonyms.”
Most of the rest of the day consisted of playbacks of deposition testimony explaining Gawker’s business model and how traffic equals money. Things got a little more interesting when they played testimony from the deposition of Kevin Blatt, a sex tape broker. He had written an offer letter for the video of Hulk Hogan/Terry Bollea and Heather Cole that was solely designed to get publicity for his client, Sex.com. The testimony they played largely undermined a key part of Hogan’s case for a large award of damages, as Blatt explained that male celebrity sex videos aren’t nearly as valuable as those with female celebrities, though it could have value to an ad-supported pornographic website. The only really compelling aspect in favor of Hogan/Bollea was that it was made clear that he was, under no circumstances, interested in selling the video.
Meanwhile, an article by legal analyst Dan Abrams (you know him best as ABC’s legal correspondent on his website LawNewz.com got a bit of attention tonight when CNN’s Tom Kludt tweeted about it. Essentially, Abrams was fleshing out the theory behind a rumor he heard that Hogan has a benefactor of some kind funding his lawsuit to try to take down Gawker. Kludt, while not confirming the story, did say he heard the rumor himself:
Interestingly enough, I heard the same rumor months ago but I never found out much more. #hulkvsgawk https://t.co/LE2KkXiRl2
— Tom Kludt (@TomKludt) March 11, 2016
It comes down these elements:
- These types of cases are always settled, and going to trial risked exposure/embarrassment for Hogan, which has already happened in a number of ways. Gawker must have offered some good settlements, and Hogan holding out for a a big payday, the justice of a jury decision, or both, is not a great idea.
- It’s the type of case unlikely to be taken on a  contingency basis (percentage instead of upfront or ongoing fees), and the post-divorce/Graziano family settlement version of Hogan/Bollea most likely does not have the financial liquidity to fund the case himself.
Is there anything to it, thought? That remains to be seen. The trial, meanwhile, continues in the morning before adjourning for the weekend.
