Hulk Hogan v. Gawker Media: The Jury Will Serve As Referee

Pinellas County, FL, is about to become the site of one of this summer’s hottest legal bouts. And while it’s typical for potential jurors to want to be excused from jury duty, this is one case where many prospects will – privately at least – be clamoring to be seated.

The adversaries in this legal battle are Terry Gene Bollea, a.k.a. Hulk Hogan, and Gawker Media, a New York-based digital media company specializing in celebrity gossip including one popular website, Defamer, which given the looming legal battle may prove an unfortunate moniker. The trial is set for July 6th.

Bollea is seeking $100 million from Gawker Media, which posted excerpts of a 2006 sex tape in which Bollea romps around the bedroom of his friend Bubba the Love Sponge Clem (yes, that’s the “Love Sponge’s” legal name) with Bubba’s wife, Heather.

As Capital New York reports, Bollea, a professional wrestler who has appeared in numerous films and on television, asserts that Gawker “violated the tort of ‘publication of private facts,’” in making the film available to its online visitors.

Gawker has responded that Bollea waived any privacy argument in making his sex life a matter of public interest with his explicit appearances on The Howard Stern Show.

Setting aside the circus atmosphere certain to surround a trial involving a well-known celebrity wrestler, his sex tape, and a New York media gossip sheet, serious legal scholars will be watching Bollea v. Gawker Media for its First Amendment implications.

While many public figures despise Gawker for what they view as its mean-spirited and invasive articles, the website – which has plenty of fans and followers – prides itself on its independence and ability to report without outside pressure.

Yet, if the charismatic Bollea convinces the jury to side with him, Gawker could be forced to sell itself to pay the jury award, or cease publication altogether.

Gawker maintains that far more than its independence and survival will be in the jury’s hands. Should the publisher get hit with a large penalty, Gawker contends the loss will have a chilling effect on other autonomous news sites, especially those that it says serve the public interest by posting items that the mainstream media are too intimidated to report.

Bollea and his attorneys, on the other hand, cast the case as a referendum on the privacy rights of all Americans – even celebrities. Is there no line of decency and privacy that the news media cannot cross?

Jury selection for this trial will be a challenge because the likelihood of subsurface biases is significant. Why?

Peter Sterne, writing for Capital New York about the trial, notes that Bollea is a well-known resident of Pinellas County. Most potential jurors have probably heard of him, and some, likely have crossed paths with the wrestler.

Gawker’s founder and CEO, Nick Denton, on the other hand, is a British ex-pat New Yorker, who most potential jurors likely have never heard of, much less spotted at the local supermarket or diner. Denton’s defense team may find it more difficult to seat a jury of his peers.

Sterne writes, “Some among Gawker’s leadership find it easy to imagine how Hogan’s legal team could portray the case—the all-American hero and local celebrity who’s just trying to protect his privacy versus the gay European founder of a Manhattan media gossip blog that published pornography for page views.” Rightly or wrongly, it certainly could be a strategy employed to actually play upon inherent biases of the jury pool.

The issue of bias needs to be front and center in a variety of ways. Gawker’s Denton is of Jewish descent and was born in Hampstead, UK. Bollea was born in Georgia and raised in Tampa.  He says he was saved at the age of 14 and has been a dedicated Christian ever since.  Bollea endorsed Republican Mitt Romney for president in 2012, after having supported Barack Obama in 2008.

Auguring more in Denton’s favor, Pinellas County has the highest number of Jewish residents of any Florida county outside of the southern part of the state. The county is also home to two gay beaches. Pinellas County has twice voted for Barack Obama as president; most recently by a margin of almost 26,000 votes.

When screening potential jurors, lawyers must make note of such broad demographics, as well as those characteristics of the specific plaintiff and defendant that could viscerally compromise a juror’s objectivity.

Yet, our experience as The Jury Whisperer, teaches us the conventional means of trying to size up jurors in a high profile case such as this are only of limited value.

If we were advising either legal team in Bollea v. Gawker Media, we would draw heavily on Carole Gold’s well-honed and demonstrated ability to tap into the true thoughts, feelings, and motivations of potential witnesses.

It is telling that Carole, who is a seasoned attorney, needn’t know a potential juror’s race, religion, sexual orientation, residence, or attitude toward gossip and pornography to detect any deeply ingrained, often subconscious, biases and inclinations.

As Carole tells it, she has spent decades maximizing access to that part of the brain, believed to be the pineal gland, that receives data and impressions as her first sense, rather than relying primarily upon sight, vision and hearing.

Carole’s combination of highly refined Intuition and legal experience place her at the forefront of her field. Combined with Shelley Albert’s extensive courtroom and trial record, the two principals of The Jury Whisperer make an invincible tag team.

Photo: Screen shot of a televised news conference in October 2012. Hulk Hogan, at right, and his attorneys, announced their lawsuit against Gawker Media.