Gawker Media, LLC v. Terry Gene Bollea, Professionally Known, Inc.

129 So.3d 1196

GAWKER MEDIA, LLC a/k/a Gawker Media, Appellant,

v.Terry Gene BOLLEA, professionally known as Hulk Hogan; Heather Clem; Gawker Media Group, Inc. a/k/a Gawker Media; Gawker Entertainment, LLC; Gawker Technology, LLC; Gawker Sales, LLC; Nick Denton; A.J. Daulerio; Kate Bennert; and Blogwire Hungary Szellemi Alkotast Hasznosito KFT a/k/a Gawker Media, Appellees.

No. 2D13–1951.

District Court of Appeal of Florida, Second District.

Jan. 17, 2014.

Gregg D. Thomas and Rachel E. Fugate of Thomas & LoCicero PL, Tampa; and Seth D. Berlin and Paul J. Safier of Levine Sullivan Koch & Schulz, LLP, Washington, DC, for Appellant.

Charles J. Harder of Harder Mirell & Abrams LLP; Kenneth G. Turkel and Christina K. Ramirez of Bajo Cuva Cohen & Turkel, P.A.; and David R. Houston of Law Office of David R. Houston, Reno, Nevada, for Appellee Terry Gene Bollea.

No appearance for remaining Appellees.

BLACK, Judge.

Terry Bollea sought to enjoin Gawker Media, LLC, from publishing and otherwise distributing the written report about his extramarital affair that includes video excerpts from the sexual encounter. The circuit court granted Mr. Bollea's motion for temporary injunction, though it did not articulate the reasons for doing so. On appeal, Gawker Media challenges the circuit court's order, asserting that Mr. Bollea is collaterally estopped from seeking the same relief previously sought and decisively denied in federal court, and should the doctrine of collateral estoppel be inapplicable, that such relief is an unconstitutional prior restraint. Because the temporary injunction is an unconstitutional prior restraint under the First Amendment, we reverse.

I. Background

In 2006, Mr. Bollea engaged in extramarital sexual relations with a woman in her home. Allegedly without Mr. Bollea's consent or knowledge, the sexual encounter was videotaped. On or about October 4, 2012, Gawker Media posted a written report about the extramarital affair on its website, including excerpts of the videotaped sexual encounter (“Sex Tape”). Mr. Bollea maintains that he never consented to the Sex Tape's release or publication. Gawker Media maintains that it was not responsible for creating the Sex Tape and that it received a copy of the Sex Tape from an anonymous source for no compensation.

On October 15, 2012, Mr. Bollea initiated an action in federal court by filing a multicount complaint against Gawker Media and others, asserting claims for invasion of privacy, publication of private facts, violation of the right of publicity, and infliction of emotional distress. See Bollea v. Gawker Media, LLC, No. 8:12–cv–02348–T–27TBM, 2012 WL 5509624, at *2 (M.D.Fla. Nov. 14, 2012)( Bollea I ). Additionally, on October 16, 2012, Mr. Bollea filed a motion for preliminary injunction, seeking to enjoin the named defendants from publishing any portion of or any content from the Sex Tape. Following a hearing, the federal court issued an order on November 14, 2012, denying the motion for preliminary injunction. See id. at *3–5. The court found that the requested preliminary injunction would be an unconstitutional prior restraint under the First Amendment and that notwithstanding the First Amendment issue, Mr. Bollea otherwise failed to demonstrate that he was entitled to a preliminary injunction under the applicable injunction standard. Id. at *3–4.

On December 28, 2012, Mr. Bollea voluntarily dismissed the federal action. That same day, Mr. Bollea filed an amended complaint in state circuit court, asserting essentially the same claims that he asserted in federal court. Thereafter and as he did in federal court, Mr. Bollea filed a motion for temporary injunction seeking to enjoin Gawker Media and others not participating in this appeal ¹ from publishing and otherwise distributing the video excerpts from the sexual encounter and complementary written report. Following a hearing, the circuit court issued an order on April 25, 2012, granting the motion for temporary injunction. The court did not make any findings at the hearing or in its written order to support its decision.² On May 15, 2013, this court stayed the order granting the motion for temporary injunction pending the resolution of this appeal.

II. Applicable Standards

“The primary purpose of a temporary injunction is to preserve the status quo while the merits of the underlying dispute are litigated.” Manatee Cnty. v. 1187 Upper James of Fla., LLC, 104 So.3d 1118, 1121 (Fla. 2d DCA 2012). In the context of the media, “the status quo ... is to publish news promptly that editors decide to publish. A restraining order disturbs the status quo and impinges on the exercise of editorial discretion.” In re Providence Journal Co., 820 F.2d 1342, 1351 (1st Cir.1986), modified on other grounds on reh'g by820 F.2d 1354 (1st Cir.), cert. dismissed, United States v. Providence Journal Co., 485 U.S. 693, 108 S.Ct. 1502, 99 L.Ed.2d 785 (1988). A temporary injunction is an “extraordinary remedy” that should be granted “sparingly and only after the moving party has alleged and proved facts entitling [him] to relief.” Liberty Fin. Mortg. Corp. v. Clampitt, 667 So.2d 880, 881 (Fla. 2d DCA 1996) (citations omitted).

A temporary injunction aimed at speech, as it is here, “is a classic example of prior restraint on speech triggering First Amendment concerns,” Vrasic v. Leibel, 106 So.3d 485, 486 (Fla. 4th DCA 2013), and as such, it is prohibited in all but the most exceptional cases, Near v. Minn. ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Since “prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights,” the moving party bears the “heavy burden” of establishing that there are no less extreme measures available to “mitigate the effects of the unrestrained ... public[ation]” and that the restraint will indeedeffectively accomplish its purpose. Neb. Press Ass'n v. Stuart, 427 U.S. 539, 558–59, 562, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). Furthermore, “[w]here ... a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment.” Neb. Press Ass'n v. Stuart, 423 U.S. 1327, 1329 (Blackmun, Circuit Justice, 1975).³

We generally review orders granting temporary injunctions for an abuse of discretion. Forrest v. Citi Residential Lending, Inc., 73 So.3d 269, 275 (Fla. 2d DCA 2011). However, “[w]e apply a de novo standard of review to the determination of whether a temporary injunction constitutes an unconstitutional prior restraint on free speech.” Id. (citation omitted). And though an injunction order generally comes to this court clothed with a presumption of correctness, orders restraining “protected speech must be considered presumptively invalid” and will only be permitted if there are no less restrictive means available. Romero v. Erik G. Abrahamson, P.A., 113 So.3d 870, 872 (Fla. 2d DCA 2012); accord N.Y. Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).

III. First Amendment

It is not clear from the hearing transcript, and certainly not from the order, why the circuit court granted the motion for temporary injunction. Based upon the few interjections the court made during the hearing, it appears that the court believed Mr. Bollea's right to privacy was insurmountable and that publishing the content at issue was otherwise impermissible because it was founded upon illegal actions.

A. Privacy

“[W]here matters of purely private significance are at issue, First Amendment protections are often less rigorous.” Snyder v. Phelps, –––U.S. ––––, ––––, 131 S.Ct. 1207, 1215, 179 L.Ed.2d 172 (2011) (citing Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988)). On the other hand, “ ‘[s]peech on “matters of public concern” ... is “at the heart of the First Amendment's protection.” ’ ” Id. (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758–59, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) (plurality opinion)).

Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public. The arguably inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.

Id. at 1216 (citations omitted) (internal quotation marks omitted).

Mr. Bollea, better known by his ring name Hulk Hogan, enjoyed the spotlight as a professional wrestler, and he and his family were depicted in a reality television show detailing their personal lives. Mr. Bollea openly discussed an affair he had while married to Linda Bollea in his published autobiography ⁴ and otherwise discussed his family, marriage, and sex life through various media outlets. Further, 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. Despite Mr. Bollea's public persona, we do not suggest that every aspect of his private life is a subject of public concern. See generally Post–Newsweek Stations Orlando, Inc. v. Guetzloe, 968 So.2d 608, 612 (Fla. 5th DCA 2007) (noting that appellant's status as a public figure does not mean that every aspect of his private life is of public concern but nonetheless holding that enjoining the broadcaster from publicly airing appellant's personal records and those of his family operated as an unconstitutional prior restraint under the First Amendment). 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. See Snyder, ...