Hulk Hogan’s Lasting Effect on Publishing and Privacy Isn’t What You Think

By Amy Gajda, a former journalist and the Jeffrey D. Forchelli Professor of Law at Brooklyn Law School. Among other publications, she is the author of Seek and Hide: The Tangled History of the Right to Privacy (Viking 2022), a book named by The New York Times as one of the year’s 100 Most Notable. She came to Brooklyn after teaching for more than a decade at Tulane University Law School in New Orleans, and, before that, she held a joint appointment on the journalism and law faculties at the University of Illinois. While there, she won seven Associated Press awards for her legal commentary.

Wrestling icon Hulk Hogan died on July 24, 2025. Within hours of the news, one journalist posted that she would dance on his grave.

That’s because, especially for those in the journalism profession, Hulk Hogan is best known as the professional wrestler who brought down the then-popular Gawker website. The story goes like this: In 2012, Gawker editors got their hands on a sex tape featuring Hulk Hogan completely nude and engaging in sexual activity, and they decided that they had the First Amendment right to share the tape with the public. They titled their story “Even for a Minute Watching Hulk Hogan Have Sex in a Canopy Bed is Not Safe For Work but Watch it Anyway,” and they added subtitles to the graphic sex video. Four years later, a jury effectively disagreed that the First Amendment protected that publication decision and awarded Hogan, whose real name is Terry Bollea, $140 million dollars for invasion of privacy. Gawker later settled for $31 million and went out of business. Once the trial was over, everyone learned that conservative billionaire Peter Thiel had funded the litigation, apparently motivated in part because Gawker had outed the billionaire tech investor as gay several years before.

But as true as all that is, there’s a different side to this First Amendment story. In this story, Gawker wins, but then there’s a plot twist. In the end, despite Gawker’s victory, it’s pretty clear why it ultimately settled instead of fighting up the chain of courts.

First, a quick description of something relevant to the story: what lawyers call stare decisis. Stare decisis means that published decisions by courts become law in the United States and future courts in the same jurisdiction must follow them as binding precedent if the procedural posture and the underlying facts are similar. The decisions also serve as persuasive precedent in other jurisdictions, meaning that judges can rely on earlier decisions from outside their jurisdiction if they’d like. In that way, the law remains somewhat uniform across the entire United States, either in a binding sense or in a persuasive sense, and it helps prevent judges from going rogue.

This national law ultimately becomes part of the Restatement, a highly influential treatise of sorts put together by judges, lawyers, and law professors who have read many of those court decisions and, therefore, know a lot about a particular legal area (like me; I’m an advisor on what will be the newest Restatement on privacy and defamation now underway). The current Restatement, written in 1977, says quite clearly that even celebrities have the right to privacy in their sex lives. That’s because since very nearly the beginning of the United States, courts have decided that deeply personal information about a person — nudity, sex, and medical information are the big three — cannot be published without the person’s permission. The only way around that is if, for some reason, the nudity, sex, or medical information is of public concern or newsworthy. “There may be some intimate details of her life, such as sexual relations, which even the actress is entitled to keep to herself,” is how the current Restatement puts it. “The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern.”

The publication of a sex tape, therefore, has a decidedly uphill First Amendment climb for the publisher, even when it features a celebrity—and even Supreme Court justices have agreed with that assessment. Eleven years before Gawker published Hulk Hogan’s sex tape, two justices concurred in the Bartnicki v. Vopper opinion that found that a radio station would not be liable for airing a newsworthy cell phone conversation because the conversation discussed the use of violence in union negotiations and was therefore newsworthy. Justices Breyer and O’Connor wrote additionally to contrast that sort of important news item with something that they said had no legitimate news value: a celebrity sex tape. “[T]he subject matter of the [cell phone] conversation at issue here is far removed from that in situations where the media publicizes truly private matters,” they wrote, adding that the “broadcast of [a] videotape recording of sexual relations between famous actress and rock star [was] not a matter of legitimate public concern.” 

The three additional justices who dissented in Bartnicki effectively agreed with that assessment in their own opinion; they would have found the cell phone conversation at issue protected on privacy grounds despite its news value, and they suggested that absolving the surreptitious recording of such things would make people hesitate to converse with others. “[T]he incidental restriction on alleged First Amendment freedoms [by criminalizing the broadcast of a cell phone call] is no greater than essential to further the interest of protecting the privacy of individual communications,” those three justices wrote. “Indeed, demand for illegally obtained private information would only increase if it could be disclosed without repercussion,” they warned, adding that, otherwise, people would be “placed in the uncomfortable position of not knowing who might have access to our personal and business e-mails, our medical and financial records, or our cordless and cellular telephone conversations.”

If those three justices found a surreptitiously taped phone call about public violence protected because of an individual’s privacy-in-communication interests, it seems likely that they would have found a surreptitiously-recorded sex tape protected on those same interests. What that means is that, back in 2001, it’s highly likely that at least five of nine justices would have sided with Hulk Hogan had he brought his privacy claim against Gawker before them. 

But I said that this would be a story of Hulk Hogan’s privacy loss and Gawker’s First Amendment victory, and that gets us back to the Hulk Hogan litigation itself. There are two other court opinions that tell a different story than what’s usually known about Hogan’s case. Back in 2012, one month after Gawker published the sex tape on its website, Hulk Hogan argued that Gawker should be forced to take the video down. That sort of forced removal is generally unconstitutional as a prior restraint but, as part of the prior restraint analysis, courts must figure out the viability of the plaintiff’s underlying claim. If the underlying claim is a winning one, then a court can order that the item be unpublished until trial. If the underlying claim is a loser, then the court will allow the information to remain online. 

And that’s where Gawker won. Not once, but twice. 

In the first key opinion, a federal district court in Tampa, Florida, decided that Hulk Hogan had “failed to satisfy his heavy burden to overcome the presumption that the requested preliminary injunction would be an unconstitutional prior restraint under the First Amendment.” The court explained that it found the sex tape to be “a subject of general interest and concern to the community” based on discussions about sex and infidelity on Hulk Hogan’s reality television show, in his autobiography, and on the Howard Stern radio show. “As such,” the court wrote, without distinguishing between mere words and graphic video, Gawker’s “decision to post excerpts of the Video online is appropriately left to editorial discretion, particularly when viewed in connection with a request for a prior restraint.”

Once the case shifted to Florida state court and a trial court judge granted the preliminary injunction, a state appeals court overturned the judge’s decision, reasoning like the federal court two years before: “[T]he mere fact that the publication contains arguably inappropriate and otherwise sexually explicit content does not remove it from the realm of legitimate public interest,” that second court wrote. There was ongoing discussion among people about Hulk Hogan’s extramarital affair, that court reasoned, and about the sex tape itself. “As such,” the appeals court wrote, again without reference to the tape’s explicitness, “it was within Gawker Media’s editorial discretion to publish the written report and video excerpts.” 

Because those were decisions about a preliminary injunction alone, and because those judges may have not seen the tape because it was not yet part of the record, and because discovery had not yet happened in the case, the two decisions in Gawker’s favor did not serve as binding precedent once the case was returned to the trial court. The case continued and a jury eventually decided in favor of Hulk Hogan’s privacy and against Gawker’s First Amendment publication right despite what the two prior courts had written about its news value. 

But even though that jury decision may have won in the court of public opinion, it had and has no effect whatsoever outside of the Hulk Hogan-Gawker outcome. What matters instead is what was written on the page by those judges in the two earlier published decisions—and they suggest, at least in a preliminary injunction sense, that in cases in which there is a showing of newsworthiness, a website should win a First Amendment-based challenge to a celebrity’s claim for privacy in a sex tape. That’s what’s now binding or potentially persuasive precedent for all other courts across the United States and will remain so quite literally forever, or at least until the two decisions are overturned.

Indeed, since then, approximately two dozen courts have cited the two cases that favored Gawker, mainly for the point that a preliminary injunction is an extraordinary remedy. None of the citing cases involve the publication of graphic sexual information or nudity, but one like that could come along someday, and under the principle of stare decisis, that court could rely on the Gawker case and decide that a sex tape’s news value is more important than an individual’s privacy.

You’re probably wondering why Gawker didn’t appeal the jury’s decision.

Now comes the twist: As it turned out, Gawker itself in a sense ultimately agreed with the Supreme Court justices and the Restatement that the sex tape’s graphic nature was not of public concern. At trial, Hulk Hogan’s lawyers asked a key question of the Gawker reporter who authored the sex tape story: Was Hulk Hogan’s graphic nudity newsworthy? The reporter’s answer was, no, it wasn’t. “There was no news value to showing them having sex?,” the lawyer asked. “No, not necessarily,” the reporter answered. And then this exchange: “It didn’t matter that it was … morbid and sensation-prying, did it?” The reporter’s response: “No, it didn’t.” In effect, then, the reporter agreed that the sex tape was, in the Restatement’s words, “a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern.”

Those answers then—that graphic nudity and sex even when an actor otherwise talks about his sex life or writes about it in an autobiography is in violation of longstanding law as defined by the Restatement—effectively sealed the result in the Hulk Hogan case. After all, as those two court decisions explained, if Hulk Hogan’s nudity was in fact newsworthy, as the courts seemed to say that it was, Gawker would win. If it wasn’t newsworthy, then Gawker would lose. When the reporter himself testified that such nudity and sex were not of public concern and were morbid and sensational prying even on these facts, there was no other possible outcome legally, no matter how many additional editors would attempt to clean up the reporter’s assessment.

So that’s where things stand today, a month after Hulk Hogan’s death: Legally, in my opinion, and journalistically, in the reporter’s opinion, Gawker was wrong to have published what it published because the graphic sex tape was not newsworthy and was morbid and sensational prying for its own sake. But despite the gleeful dancing on his grave by some, Hulk Hogan’s win will not be what judges will read and be bound by or swayed by years from now. Instead, they’ll be led by the idea that, on the right facts, the First Amendment can protect even the publication of a sex tape featuring a celebrity and that such a tape can be of public concern.

That assessment may be wrong given the law of privacy in general, but in those jurisdictions, for now at least, stare decisis says it must be right.

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