GAWKER SLAYER

2

Introduction, Part I: The Gawker Slayer

What do Hulk Hogan, Halle Berry, Julia Child and Donald Trump have in common?

Me.

Despite many famous cases—and clients—I’m not a celebrity myself, nor do I aspire to be one. I’m an attorney. For 25 years, I’ve represented some very famous people and also many people you’ve never heard of. I’m also the editor and co-author of the legal treatise Entertainment Law & Litigation. I own and run a small law firm in Los Angeles. There’s really nothing flashy about my lifestyle. I’ve lived in the same starter home for nearly two decades, though I could buy a bigger one if I wanted. I still drive the family SUV that I bought more than 16 years ago, though I can afford to trade up. The parties I attend are potlucks with friends. And truth be told, the only thing I dislike more than wearing a suit is putting on a necktie.

People in certain circles who know my name—powerful people who run or represent media companies—will sometimes get a letter from me and are not happy when they do. It means they’ve been caught doing something wrong and need to make up for it. Why?

Two words: Hulk Hogan.

I was lead counsel for the former professional wrestler, 12-time world champion, and Hall of Famer. His real name is Terry Bollea, and he sued the website Gawker after its editors posted 101 seconds of surreptitiously recorded video of him, including 10 seconds of consensual sexual relations with a partner in a private bedroom. Bollea v. Gawker captured the public’s attention. It had the ingredients of a modern-day soap opera: sex, lies, videotape, an American pop-culture icon, and a powerful company that made money from publishing invasive, mean-spirited, destructive gossip disguised as news.

Gawker’s leaders were ruthless, even sadistic. They humiliated people. They seemed to get joy out of ruining lives. We didn’t just win the Hulk Hogan case; we won big. The jury’s $140 million verdict in March 2016 put Gawker where it belonged: out of business.

The case put me on the national map, so to speak. It led to even more high-profile cases against irresponsible media, like when first lady Melania Trump hired me to sue the Daily Mail for a false story that she had once worked in an illegal trade. I’ve also prevailed for her husband, President Donald Trump, against porn star Stormy Daniels in her failed defamation suit, and against former Trump campaign staffer Alva Johnson, who falsely claimed the president had forcibly kissed her. He didn’t, and I located a cellphone video that proved it.

Does this make me a hater of the media, as some reporters have claimed? Am I the Gawker Slayer who wants to rip apart the First Amendment and its guarantees of free speech and freedom of the press? Absolutely not. Nothing could be further from the truth.

One misguided journalist even said I’m viewed as the media’s Darth Vader. Not in my view. If anything, I’m the media’s Luke Skywalker. I want responsible media and journalism, and for the First Amendment and its guarantees of free speech and free press to thrive and prosper. But for that to occur, the Dark Side of media and journalism must be neutralized, or eliminated. That’s my job.

Gawker, thankfully, is gone—reduced to an ugly footnote on the story of American media. The case gave me a unique vantage point where law, media and society converge. That view has me very concerned. Gawker was a malignant lesion on a media establishment that, as a whole, is suffering from a silent, creeping cancer.

The disease takes many forms: Irresponsible journalism. Hidden editorial agendas. Advocacy disguised as factual news. Sensational and invasive content that hurts people. Propaganda—for the left, the right or other. Fake news.

This cancer has already killed the truth as many of us know it. Pulitzer Prize-winning newspapers, cable news shows that attract millions of eyeballs each night, popular websites, national magazines—all are suffering from massive failures of responsibility at every level. This hurts people like you: readers who turn to the news for facts, truth and help making sense of the crazy and complicated world we live in. This cancer also hurts the media itself. People have developed a mistrust for reporters, editors and news outlets, and often don’t believe what they read or hear. Journalism exists to help people make sense of a confusing world. But if people can’t trust what they read, they become more confused and stressed, rather than better educated and calmed, and journalism fails in its mission. The cancer also hurts the subjects of the stories: people who are lied about and whose lives are impacted greatly, sometimes forever. Many of them call on me to be their champion.

I want this cancer to be eliminated so that the patient—the American people, the American Way, American journalism and American politics—can be healthy and thrive. I have some ideas about how to do it. I would love nothing more than to put myself out of business when it comes to media cases. If journalists acted responsibly, my defamation and privacy cases would all disappear. I’m fine with that. I’d love it, in fact. I’d be happy to go work on something else—don’t worry about me. But until then, worry about the accuracy of the news being delivered to your doorstep, TV, computer, tablet, or phone.

My father drilled two lessons into my head:

1. Never give up, and

2. Find a way.

It’s time to kill the cancer in the America media and restore responsibility, accountability, accuracy, ethics and privacy to our daily news, for the benefit of everyone: the American people who rely upon the information they receive from the news, those covered in the news, and everyone who writes, edits, publishes and profits from the news itself.

People have great power to change what they don’t like. The way the news is being gathered and disseminated should upset you. It certainly upsets me. In the spirit of my father’s mantras, I will not give up working to fix it, and will continue to think creatively, and act boldly, to find ways to do that. I hope you will do the same. I want you to help me to put me out of business.

This book will outline ways we can do that. It also will share my ideas about how to make the whole world better—and hopefully entertain you with tales of my trench warfare with evil corporations, many of them in the media industry. Along the way, I will fill in the blanks created by flattering, sometimes critical, but always reductive media descriptions of me, like Gawker Slayer and the media’s Darth Vader. They don’t tell the full story of who I am, how I became me, or what I stand for. That’s why I wrote this book.

In sharing my adventures and hard-fought wisdom with you, and revealing how taking on big companies on behalf of individuals became my life’s work, I invite you to join me in the battle.

3

The World’s Biggest Cyberbully

The Hulk Hogan sex video went live on Gawker on Oct. 4, 2012.

In Gawker’s newsroom, the big board—a large screen displaying the company’s best-performing posts in real time—tracked the number of readers watching footage of Terry Bollea (known to fans as his alter ego, Hulk Hogan) in a private bedroom doing very private things.

The video had been filmed five years earlier, when Bollea was in a dark place. His 23-year marriage to his wife, Linda, was essentially over. After a four-season run, their VH1 reality show, Hogan Knows Best, had been canceled. Linda and their children, Brooke and Nick, had just left the family’s longtime home in Tampa, Florida, for California, and Linda could not have been clearer: Their marriage was over.

Bollea, by then retired from wrestling, was depressed and alone. He considered suicide. His closest friend was a local radio shock jock, Bubba the Love Sponge, who had an open marriage with his wife, Heather. Both had pressured Bollea to have sex with Heather for more than a year. Bollea always declined and snapped at Bubba to stop asking.

But in 2007, Bubba was worried about Bollea and insisted he come over. The three talked over wine, the Clems doing what they could to cheer up Bollea. In a moment of both weakness and a feeling of connection to the couple, Bollea gave in. He had a fling with Heather in her bedroom. Over the next few weeks, they were intimate on two more occasions. He had no idea that each time, a hidden camera was recording them.

By 2012, five years had passed and Bollea had gotten his life back on track. He and Linda had completed a long, bitter divorce battle in 2009, and he remarried in 2010. In March 2012, the first story of a Hulk Hogan sex tape was posted at TMZ, and then a month later TheDirty.com posted grainy still images, but no video and no identifiable nudity. Bollea and his lawyer, David Houston, were frantically trying to track down the tape and those responsible. In September 2012, a DVD containing 31 minutes of footage of Bollea and Heather Clem (who had since divorced Bubba) being intimate in her bedroom landed on the desk of A.J. Daulerio, then the editor-in-chief of Gawker.com.

Whoever wanted to humiliate or ruin Bollea with the footage (a practice known as revenge porn) sent it to Daulerio—well known as a master of exploiting people. In late 2011, Daulerio was promoted from head of the sports-themed Gawker-owned site Deadspin.com, to being the head of its flagship site, Gawker.com. In just a short time, he took Gawker.com from 700,000 visitors a month to well over 2 million. He didn’t do this with enlightening stories, balanced coverage or impactful investigations.

Daulerio was fixated on sex tapes and photos of people’s private parts. He once handed over an envelope containing $12,000—in cash—to a source in return for below-the-belt selfies that New York Jets quarterback Brett Favre allegedly had sent to a female sports reporter. Daulerio wrote the post himself and gave it the headline ‘Brett Favre Once Sent Me Cock Shots’: Not a Love Story.

Sports heroes, celebrities, average Joes, women, men—everyone was fair game to Gawker Media. Sex sells. The company’s business model was clickbait, and its success or failure depended on eyeballs, the ensuing advertising dollars, and increased popularity of the growing Gawker Media empire, which also included sites devoted to technology, video games, cars, sports and, ironically, feminism.

But their motivation went beyond eyeballs and money. As I would soon learn, Gawker was a twisted place. The very idea of changing the world or doing good inspired revulsion at its downtown Manhattan offices, where leaders cultivated an image of jaded outsiders with nothing to lose, tearing down people’s reputations and lives, one asshat and douchebag (two of the site’s favorite insults) at a time.

Go back to that interview Gawker Media’s founder and CEO, Nick Denton, did with The Washington Post in 2011, when he boasted, We don’t seek to do good…. We may inadvertently do good. We may inadvertently commit journalism. That is not the institutional intention. That was Gawker.

Gawker editors portrayed themselves as antihero crusaders who were channeling the rage of the creative underclass to take down the wealthy and powerful. But in reality, Gawker was a place where resentful, underpaid young bloggers working in sweatshop-like conditions (hundreds of its writers were interns who received little or no pay at all, nor school credit for that matter) could channel their own personal rage, target anyone (and everyone), and spread it to many thousands, or even millions, simply by pushing a button.

Gawker’s depravity wasn’t just directed outward at the people it covered. It was baked into the company’s culture.

Former Gawker editor Emily Gould revealed that after she quit the company, Denton himself wrote vicious stories about her for the site. He posted about my ‘bed-hopping’ in the guise of making some kind of point about literary culture. I was, while this was happening, unemployed, not protected by any kind of institutional power, she wrote in an essay for TheCut.com in February 2020.

At one point Gould clicked on Gawker and saw an image of herself drunkenly fellating a plastic tube. It had been taken while she worked at Gawker, after she and other staffers who had attended a party together were goofing off on a Soho street. Nick had somehow found the video, sent it to an employee with instructions to post it, and then the staffer did, probably because Nick was his boss, Gould wrote. (Denton denied to The Cut that he had directed the staffer to post the video.) In 2008, I didn’t know how to contextualize what I was experiencing. Now, we have a term for this: ‘revenge porn.’

When Gawker.com launched in 2003, it mainly focused on skewering NYC’s media and cultural elite. But under Denton’s—and, later, Daulerio’s—leadership, it grew into an all-purpose purveyor of smut, snark and shame. In a 2010 internal memo to staff, Denton explained the company’s mission this way: The staples of old yellow journalism are the staples of the new yellow journalism: sex; crime; and even better, sex crime.

Sometimes it was simply gross, like the time the site documented, with photos, a used condom hanging on the handrail of a New York City subway car. Gawker at its best was juvenile and crass. Gawker at its worst was cruel, vindictive, invasive and vicious. And no one was safe.

They outed gay people in the most insensitive ways. They had a regular feature where they mercilessly taunted subjects of local wedding announcements, mocking the bride and grooms’ last names, alma maters and parents’ careers. Gawker once devoted an entire post to attacking a preschooler—seriously—because his blogger dad had written a story about the little boy’s taste in gourmet cheese that offended the sensibilities of Gawker writer Josh Stein. (When is it okay to hate a 4-year-old? Stein’s post began.)

Simply put, Gawker was the world’s biggest cyberbully.

When the Hulk Hogan video arrived in the mail from a so-called anonymous sender (though Daulerio spoke by phone with New York talent agent Tony Burton of the Don Buchwald agency, who arranged the DVD shipment), there was no moral struggle or legal ambiguity for Daulerio and his team. They didn’t question whether Bollea knew he was being recorded, or how the video’s release might affect him and his family, or why the person shipping it was trying to destroy Bollea’s life—and likely engaging in revenge porn.

Daulerio and company simply sat at their editing machine and spliced a 1-minute, 41-second highlight reel (Daulerio’s words to Tony Burton) from the original 31 minutes. Daulerio wrote the accompanying commentary: salacious, graphic descriptions of oral sex and intercourse, along with a demeaning recap of mundane pillow talk that was never meant to leave that Tampa bedroom. Daulerio told readers the full 31-minute sex tape was a goddamn masterpiece.

On Oct. 5, 2012, the day after it went up, Bollea’s personal attorney, David Houston, sent a letter to Gawker demanding that the video come down. Any attempt to hide behind the veil of the ‘newsworthiness privilege’ will fail, he wrote. The next day, with the video still up, he personally emailed Denton, imploring him to do the right thing and remove the video. I’m sure you understand as a human being, he wrote, telling Denton that if the video was taken off the site, Bollea would consider the matter closed. Yes, you heard that right: Gawker would still be alive today if it had simply removed the video—no payment, no apology, nothing more required.

But the video remained. A few days later, Cameron Stracher, a lawyer for Gawker and Denton, sent a letter saying the posting of the video was legal (though it wasn’t) and would remain on Gawker.com for all the world to watch. Imagine if Stracher had simply told his client: Take the video down; you’ve gotten what you wanted—you exposed Bollea, attracted lots of eyeballs and revenues, promoted the Gawker brand; let’s avoid a legal fight. But such advice or instruction does not appear to have been communicated. And if it was, Denton ignored it.

I got involved the week Stracher sent his letter refusing to remove the video. We should sue Gawker for $100 million, I told Houston, and do a press conference on the courthouse steps. We filed the lawsuit days later and did just that.

At the time, I had been practicing law for about 16 years. I had filed more than 30 lawsuits for major celebrities as of then, but this was my first press conference. Why was this case different?

We needed to send a strong message. Articles were pouring out saying—falsely—that Bollea was involved in the release of the video and was doing so for publicity or money, or both. It was essential for people to know the truth: Bollea was being severely victimized and had no role in the video’s creation, release or promotion. He wanted the video off the internet and destroyed. We also wanted to send the strongest possible message to Gawker to take the video down immediately, because Houston’s two emails to Gawker and Denton hadn’t worked. I wanted to pull out a sledgehammer and hit Gawker as hard as I could. Our demand to Gawker, Denton and Daulerio was $100 million—a very high number, no doubt, but one that we believed was both justified and achievable.

Press conference on Oct. 15, 2012, at the U.S. Courthouse in Tampa, Florida, to announce the filing of the $100 million lawsuit against Gawker. Terry Bollea (aka Hulk Hogan) and his personal attorney, David Houston, are standing behind me.

That day on the courthouse steps marked the start of a four-year journey that exposed Gawker for the cyberbully it was and ultimately achieved full retribution: landing Gawker Media in bankruptcy court and seeing its assets sold to the highest bidder.

Our lawsuit included claims against Gawker of invasion of privacy, name and image infringement, and infliction of emotional distress. Six months into the case, the Florida state court judge ordered the video removed from Gawker.com, and the company complied.

We then sent more than 60 takedown demands to porn sites, blogs and others who had lifted the video, attaching the court order, and they all complied. Months later, the Florida Court of Appeal reversed that order, but Gawker kept the video down pending the outcome at trial. (We received a permanent injunction against the video at trial.) During the six months the video was up, it was viewed well over 7 million times, 2.5 million at Gawker.com and the remainder at the various porn sites.

The trial began in St. Petersburg, Florida, on March 7, 2016. This book was published on the fifth anniversary of the trial. One of the most infamous moments came during Daulerio’s videotaped deposition, which we played for the jury. The exchange is still cringeworthy:

Q: Can you imagine a situation where a celebrity sex tape would not be newsworthy?

Daulerio: If they were a child.

Q: Under what age?

Daulerio: Four.

When Gawker presented its defense, Daulerio took the stand and tried to explain that he was only joking when he gave that testimony—but no one was laughing in the video. He also gave the same answer (Was she under 4?) to a different question regarding the newsworthiness of a possible Miley Cyrus sex video.

Either he really believed that child pornography was acceptable news content, or he was treating his deposition, and also Gawker’s First Amendment defense, and ultimately the entire lawsuit, as a joke. The jury was not impressed.

Gawker’s trial presentation was miscalculated. It attempted to portray Daulerio as a bold and brilliant journalist; Denton as a publisher of important, non-tabloid news; and the Bollea footage as necessary to telling the story of the sex tape’s existence. But both in his deposition and on the stand, Daulerio admitted the opposite. He testified that each of the 10 reasons Gawker’s counsel gave for the supposed newsworthiness of posting an uncensored, secretly recorded sex video were not true. He admitted that Bollea’s penis was not newsworthy, as one example. He also testified that all of those 10 reasons were not even considered by Daulerio at the time he posted the video.

An important moment at the two-week trial was when Gawker.com’s managing editor, Emma Carmichael, testified. She acknowledged that, as the site’s managing editor (its No. 2 editorial position), she and Gawker had made no effort to find out whether Bollea knew he was being recorded, or whether the tape could have constituted revenge porn, which is illegal and criminal. She was calm and stone-faced as I asked, You were aware that Mr. Bollea was likely to feel distressed, hurt, upset, and embarrassed, and yet Gawker.com posted the sex video of him anyway, correct?

Yes, Carmichael responded.

Do you believe it was a good thing that Gawker.com posted a video of my client fully naked and having sex? I asked.

Yes, I’m comfortable with the story that we published, she said.

And if you had it to do over again, you would do the same thing? I asked.

If history were to repeat itself, yes, I would republish the story, Carmichael replied.

Her callous detachment was mind-bending. The jury later cited her testimony (as well as Denton’s and Daulerio’s) as a reason for its unprecedented verdict.

When it came time for the verdict to be read, my heart was in my throat.

It was March 18, 2016. For three and a half years, I had felt like we were swimming upstream. Gawker always had more attorneys working the case than we did; they buried us in paper, citing the many, many U.S. Supreme Court and appellate court decisions siding with the First Amendment in other circumstances. Two early decisions in the case (in Gawker’s favor) showed us that simply by litigating against a news organization, we were automatically the clear underdogs.

The room was dead silent as the court clerk read the entire 10-page verdict form, word for word. There were 14 questions. We needed 13 yesses, and one very important no (to question No. 2). The clerk read the form: Yes. No. Yes. Yes. Yes. Yes.… By that point, I started to break down. The jury had answered every question exactly as we had asked them to.

Bollea was sobbing loudly. I was sobbing too, but quietly. Tears streamed down my face and soaked my collar. I couldn’t stop. The clerk continued: Question No. 7: Yes. Yes. Yes. Yes…. After all the ups and downs, hard work, and so much time away from my wife and children, this was the payoff: justice being served, and privacy in America being enforced. These were tears of joy. Our heroic jurors were ruling for privacy over exploitation, in a big way.

We filed out of the courtroom and went into a private room in the courthouse. That’s when Bollea asked us, What was the verdict? He hadn’t heard that the jury had just awarded him $110 million. (They would award another $30 million the following week at a separate hearing on punitive damages.) We told him, and he was floored.

I was too. The jury gave us more money than we’d asked for, but the joy wasn’t just about the money. The permanent injunction preventing the video from ever being posted again: That was a tremendous victory as well. I knew there would be an appeal; this verdict was hardly the end. There were battles still to fight. But for the moment, we were going to savor our euphoria over the trial victory, and then get to work to do everything in our power to make it stick. There was so much on the line: a man’s reputation and mental health; a large monetary verdict; and to me, the grand prize―ensuring every American the right to privacy.

Our jury of four women and two men resoundingly determined that what happened to Terry Bollea, aka Hulk Hogan, was a massive violation and should never happen to another human being. Gawker could not wrap itself in the First Amendment and destroy people’s lives. Just the opposite: It had to be punished for its intentional harmful conduct.

Terry Bollea, my associate Seema Tilak, David Houston and me in a photo taken late in the trial.

I should mention here that the work of others at my firm, particularly Dilan Esper and former associates Sarah Luppen, Matthew Blackett and Seema Tilak, as well as the exceptional talents of our co-counsel in Tampa, Kenneth Turkel and Shane Vogt, and other attorneys and staff at their firm, as well as David Houston, Esq., and trial consultant Michael Boucher, all made our successful result possible.

Once a judgment is issued, the plaintiff (now called a judgment creditor) can collect on the debtor’s assets: its bank accounts, property, and so on. The only way to stop collections is to post a bond of the amount of the judgment, plus interest for two years