St. Petersburg, Fla. — On two separate screens, a giant one on the wall to the left of me and a normal-sized TV at the front of the courtroom, I am watching a video of a video of Hulk Hogan wearing a yellow open-backed tank top and black thong.
"This should be good," says Hogan—not the doo-ragged, silver-cross-wearing real-life one sitting a few rows ahead of me with his attorneys, but the one on camera staring at us as a recording plays behind him.
When the clip is over, the video version of Hogan tells us that he is a bit embarrassed by it, but also calls it "fun." He says that he felt okay filming it in the presence of "men’s men" as opposed to women. He adds that it is supposed to be a parody of a Miley Cyrus music video that received "30 million views" on YouTube. "We were trying to capitalize on that," he says.
Those of you who have been in the market for low-cost web hosting in the last three years might have recognized the video-within-a-video as an advertisement Hulk cut in 2013 for Hostamania, a Florida-based outfit. For the rest of us, by which I mean the 15 or so journalists and observers spread out over six rows of benches on the fourth floor of the Pinellas County Courthouse where we are witnessing the ninth day of court proceedings in Bollea v. Gawker, it is bizarre to say the least. It is also par for the course in a trial whose two most characteristic moments so far have been Hogan answering questions about the size of his penis and Gawker’s former editor-in-chief declaring that he would draw the line at posting a sexually explicit video of a four-year-old.
You might also think that the operative words in my description of the Cyrus parody are "open-backed tank top" and "thong," but as far as the plaintiff and his attorneys are concerned, they are "Hulk Hogan." In fact, if I understand them correctly, neither the guy in the video listening to himself nor the guy I see buttoning his jacket over his t-shirt when he stands up is even Hulk Hogan. That there is a difference between Hulk Hogan the celebrity pro wrestler and Terry G. Bollea, the man recorded while enjoying carnal relations with the then-wife of his friend Todd Alan Clem, alias Bubba the Love Sponge, is the crux of his attorneys’ argument in their case against Gawker.
In theory, I am willing to admit that there might be something to the line of reasoning. But the contours are blurry. When Hogan/Bollea says in his deposition that his wrestling character is a fundamentally decent guy, with a "wholesome" image, I find it hard to square with the argument he makes on-screen a few minutes later that lewd remarks about his sex life are only part of a "skit." His sincerity, if not the legal heft behind him, looks pretty dubious when you consider the fact that the Hogan ≠ Bollea argument has been made before—against the Florida-based wrestler himself in 2002 when he unsuccessfully sued World Championship Wrestling for defamation and invasion of privacy following insults made by Vince Russo, a WCW employee, during a pay-per-view event. The Georgia Court of Appeals ruled that the remarks, obviously hyperbolic and made in the context of a performance, had an impact only in the fictionalized universe of professional wrestling, and did not reflect negatively upon Bollea himself.
Other than the ongoing dispute about the metaphysics of duality, though, not much is going on today. It’s clear that Gawker has made some mistakes putting together its exhibits for the jury and that Judge Pamela Campbell is not happy about it. I get the sense the trial is winding down when I ask a Daily Mail reporter sitting in front of me what he’s noticing.
"Nothing," he says blithely.
Behind us a man wearing a lime green and grey-striped rugby shirt and not-quite-waist-length dreadlocks is frantically snapping pictures. He can’t get a good shot of Hulk. The other media people here are either chatting quietly with the Gawker folks, towards whom they seem to have some kind of professional sympathy, or sitting silently at their laptops. No one’s cellphone seems to be turned off, and I keep hearing the iPhone text message sound from the row to my left. The mood is mostly boredom.
We watch a few more video clips, all from depositions taped in the last three years, at the request of Gawker’s attorneys. In one, Hogan/Bollea is asked whether he gives the public the impression that he is a "person of faith." In another, he rubs his doo-rag pensively when he is asked to define the word "celebrity." "I seen her twice at the racetrack," he says when asked about his early meetings with Heather Clem. When he tries to explain that Hulk or not-Hulk is less a binary than a continuum, he cites his old reality television series Hogan Knows Best and his appearance in the commercial as examples of someone who is neither his wrestling persona nor the Bollea whose privacy was violated by the release of the dirty movie.
It is hard to take sides here. For me the Hogan team’s argument about identity has all the force of someone’s casual observation that Gene Simmons is not really a fire-breathing demon. On the other hand, the Gawker people seem petulant and unprofessional, though it is hard not to admire their blasé outlook in the face of being dumped with a settlement that could spell the end of their Cayman Islands-incorporated media company. From a strictly legal perspective, the outlook is bleak no matter what: either the First Amendment protects our right to publish smut taken from nature in a forum where teenagers can see it or the tradition of the right to privacy that began in the English common law system with what distinguished authors have called "a recognition of man's spiritual nature, of his feelings and his intellect" exists to facilitate adultery.
At around 11:40, when Judge Campbell dismisses the jury, she sounds apologetic. She tells the rest of us to be back at 1:30 to hash out procedural arguments.
During the break I go outside expecting to find legions of Hogan fans here to cheer on their man. I find one. Pat, a local in a black t-shirt with tattoos of dragons and roses up and down both arms, is disappointed.
"Before today I was for Hogan," he says.
What changed?
"I think it would have been better if he didn’t wear the bandana," he says. "In there he reminds me of the Hulk. There’s this whole thing about being Hulk Hogan versus Terry, but to me if you’re going to be this All-American ‘Eat Your Vitamins’ guy, you have to show that in your personal life as well as in your public life."
He now thinks it’s possible that Hogan/Bollea and Love Sponge/Clem leaked the video themselves hoping to make money, and seized upon the Gawker post when they failed to profit from it. "It would be interesting to know where the videotape was postmarked from," he says. I agree.
Back in the courtroom after lunch, three reporters are sitting behind the Gawker defense team, chatting and glad-handing.
"I love your tie," one of them says. (The accessory in question is blazing pink and black and not tied correctly.) "Very festive," she adds.
One of the Gawker people is eating a banana with a defiant grin that reminds me that, in keeping with the standards maintained across the American judicial spectrum, from 1 First Street NE to Judge Joe Brown, eating and drinking are prohibited in this court room. A curly-haired reporter with big glasses having a conversation I can’t hear leers sarcastically.
Eventually we rise and one of the Gawker attorneys starts rattling off a long list of exhibits that the defense will no longer be using. This takes about 15 minutes. "You can have these 10 DVDs back and this one," Judge Campbell says when he is finished.
There is one more procedural gambit in the works today. Hogan’s counsel requests that the live stream of the proceedings running on Gawker.com be archived because the defendant has a financial interest in advertising revenue generated by the stream.
Here Campbell smiles in the direction of the Gawker table with what looks to me like a hint of wry malice. "Sounds reasonable," she says.
When the lawyers for Gawker respond by saying that they do not know whether this will be possible, the judge cuts them off and says that the motion has been granted. She is really impatient now. Then she tells the Gawker team to be there tomorrow with everything they’re supposed to have all lined up and ready to go.
"Nine-oh-five. Sharp. We’re not going to have a delay like we did today."
I’m glad I won’t be there in the morning.