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Day four of Hulk Hogan vs. Gawker started off this morning in Tampa, Florida with the cross-examination of Michael Foley, a University of Florida Professor of Journalism. Foley is a paid expert witness for the Hogan side. You can read about his testimony yesterday by clicking here. Elite subscribers, click here.
As you might imagine, Gawker's lawyers were grilling Foley on his comments yesterday regarding what was correct from an ethics point of view in journalism, bringing up that outlets show ISIS beheading victims and other similar stories, allowing their readers to determine whether to view that material or not, just as Gawker did with the Hogan sex video. They appeared to be trying to paint Foley as out of touch with today's journalistic world since he hasn't worked for a newspaper since the early 1990s. They also tried to paint the idea that Gawker was presenting commentary on the Hogan tape. Foley argued that there needs to be rules in place in regard to what is presented to the audience. Gawker responded that there are different audiences and that today with NSFW warnings, it's a different situation. The entire point here was old media vs. new media and what is right in 2016 - and that Gawker didn't cross any lines they shouldn't have, journalistically.
Gawker argued that critics of film and theater don't need to contact performers they are writing about. Gawker also argued that when it comes to commentary, rules are different, arguing that satirical writer Dave Barry doesn't need to reach out for comment to everyone he writes about, which Foley did concede but said the opinions have to be rooted in fact. Foley agreed that the video itself was news but that Hogan and Heather Clem had sex was not.
Foley was asked whether Hogan's previous public comments about his sexual exploits opened the door and said that he didn't believe the comments were relevant to the Hogan sex tape story. He was then grilled about his decision years ago to publish a story about actor Demi Moore posing nude. Foley said that was her decision because she posed nude by choice while Hogan didn't have that choice. Gawker's attorney asked whether Magic Johnson opened the door to discussion of his sexual history because of his HIV diagnosis. Foley argued that again, that was a public choice to go public with his health status.
There was a lot of talk about the "Cheerios" test (i.e. whether content is appropriate for readers reading over a newspaper breakfast) and whether Gawker failed that test.
In an interesting exchange, Foley noted that he couldn't imagine a reputable news outlet showing the Hogan video. Gawker countered that ABC News showed a clip from the sex tape but nothing sexual in nature. Foley says that while they showed part of the tape, he wouldn't have. He avoided answering the question of whether that fell under standard journalistic protocol. They then brought up an article in the Tampa Bay Times, which Foley used to work for, publishing an article about strip clubs in the area with a description and photo of women who were stripping. Foley argued that they were paid to perform and dance (while Hogan, obviously, was not in a position where he was performing or being paid to perform) so there would be no privacy issue there. Gawker argued that today, The Times could publish the video. Foley countered that they "could" but that didn't mean the outlet would.
Foley was also grilled about whether certain outlets practiced journalism. He said The National Enquirer does in "many cases." He declared he had never read Hustler. He was asked whether these publications were protected by First Amendment, which Hogan's team objected to. Foley later stated that they do, unless the outlet publishes something that would break the law, using child pornography as an example.
The trial has taken a break for lunch.
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