The appellate court ruled that the order constituted a “prior restraint” -- that is, an order that censors content before there's been a trial. Courts almost always say that prior restraints violate publishers' free speech rights. The ruling, issued on Friday, reverses a trial judge's order requiring Gawker to remove the video, which featured Hogan and his friend's ex-wife, Heather Clem.
The dispute between Hogan (whose real name is Terry Bollea) and Gawker dates to October of 2012, when Gawker posted a one-minute excerpt of the sex tape.
Soon after the post went live, Hogan sued in federal court, where he argued that the clip violated his privacy. U.S. District Court Judge James Whittemore in Florida sided with Gawker and refused to order the site to take down the excerpt. Whittemore ruled that the clip was of legitimate public interest, especially given that Hogan was a public figure who not only starred in a TV reality show, but also discussed his personal life in his memoir.
At that point, Hogan withdrew his case from federal court and sued Gawker in state court -- which initially proved to be a friendlier forum. The case came before Pinellas County, Fla. Circuit Judge Pamela Campbell, who clearly disagreed with Gawker's decision to publish. The judge not only ordered Gawker to remove the tape excerpt, but also told the site to take down the 1,400-word write-up by A.J. Daulerio.
Gawker deleted the clip, but refused to remove Daulerio's commentary. The media company also appealed and, in May, won a temporary stay of Campbell's order.
On Friday, the appellate court unequivocally ruled that Campbell's order was unconstitutional. “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,” the three-judge appellate panel wrote.
In its ruling, the court noted that Gawker's post dealt with a matter of public interest -- and that Hogan himself didn't seem all that concerned about protecting his privacy. The judges mention in the opinion that Hogan called TMZ Live to discuss the sex tape, appeared on the Howard Stern Show to say that he had an affair with Clem, and “was certainly not shy” about disclosing details of a separate affair in his autobiography.
“Prior to the publication at issue in this appeal, there were numerous reports by various media outlets regarding the existence and dissemination of the sex tape, some including still shots therefrom,” the court wrote. “Despite Mr. Bollea's public persona, we do not suggest that every aspect of his private life is a subject of public concern... However, the mere fact that the publication contains arguably inappropriate and otherwise sexually explicit content does not remove it from the realm of legitimate public interest.”