In the motion, Gawker claimed, "Plaintiff fails to state a claim upon which relief can be granted because (a) defendantsâ€™ conduct involves speech about a matter of public concern and is therefore shielded from liability by the First Amendment; and (b) plaintiff fails as a matter of law to establish the elements of each of his causes of action."
They also repeated their claim that Hogan could not claim his privacy was violated since he was a "well known celebrity" cheating on his then-wife with the then-wife of his then-best friend, with his friend's permission, outside of Hogan's home. They also noted that since Hogan has written and discussed his infidelities publicly, including his second autobiography, it was a matter of public concern and he had no expectation of privacy in the matter.
Gawker's motion would not cover Heather Clem's status as defendant. Hogan has merged his separate lawsuits into one and noted that Clem was responsible for filming him and for either disseminating the tape herself or via a third party.