The dispute between Hulk Hogan and Gawker over a sex tape is getting steamy.
Last week, a Florida judge granted Hogan's request for a temporary restraining order. Gawker was not only ordered to pull down a one-minute excerpt of a 30-minute sex tape, but also to take down all excerpts, clips, photos and transcripts.
In reaction, Gawker took down the sex tape but refused to remove a 1,400-word narrative of the video written by former Gawker editor A.J. Daulerio. In addition, Gawker linked to another website that was hosting the sex tape. In a post that explained the move, Gawker blasted the judge. "The Constitution does unambiguously accord us the right to publish true things about public figures," wrote Gawker editor John Cook.
Gawker has appealed the ruling, and on Monday morning, it got a Florida appeals court to issue an emergency stay of the temporary injunction. The two sides will soon be at the District Court of Appeal for the Second Circuit in Florda arguing the First Amendment issues at hand.
In the meantime, Hogan (born Terry Bollea) is advancing with a motion to show cause why Gawker shouldn't be held in civil contempt for openly disobeying Judge Pamela Campbell's instruction "to remove the written narrative describing the private sexual encounter." The Hollywood Reporter has obtained a copy of the motion.
Represented by attorney Charles Harder and local counsel Kenneth Turkel, the filing states:
"Gawker Media argues in [the post] that it has the right to continue to publish the narrative description of Plaintiff’s private sexual activities because such discourse is protected by the First Amendment. Not only is this contention incorrect on the merits (Plaintiff established in his Motion for Temporary Injunction that Gawker Media’s post was unprotected expression), but it is well-established that even if the terms of an injunction are inconsistent with the First Amendment, a party has no right to disobey it but must challenge the injunction through legal channels."
The motion also argues that Gawker's decision to simultaneously remove the video while linking to another website's version of the sex tape is also against judge's orders.
"The Order prohibits 'posting, publishing, exhibiting, or broadcasting' the footage," says the court filing. "Linking to the footage falls within this definition."
Hogan's attorneys also cite a 2001 2nd Circuit appellate decision in Universal City Studios, Inc. v. Corley, as backing up the contention that the TRO contemplates the need to stop linking of the sex tape. That decision dealing with the constitutionality of an injunction barring links stated, "If obscene materials are posted on one web site and other sites post hyperlinks to the first site, the materials are available for instantaneous worldwide distribution before any preventive measures can be effectively taken."
At a coming contempt hearing, Hogan plans to seek monetary sanctions, attorney's fees and further relief.
Gawker has its own legal strategy. In its now granted motion for a stay, the website said the lower court's order was in error because Hogan's arguments were "collaterally estopped" by earlier decisions by a federal judge, that it constitutes a "prior restraint" in violation of the First Amendment, that ignores legal precedent, that it was "entered by a judge who expressly stated she did not watch the Excerpts at issue and did not plan to do so," that it was entered against a number of parties who had not been served, that Hogan failed to post a bond and more.
The ruling was also attacked because it "enjoins the dissemination of a publication -- the Gawker Story -- that Hogan himself has repeatedly attached to public filings, including seen times in this case."
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