The Most Interesting In-House Job In The World?

Meet Heather Dietrick, president and general counsel of Gawker Media, who's now spearheading Gawker's defense in the Hulk Hogan sex video lawsuit.

How’s this for an in-house lawyer’s job description? You advise journalists on the legality of using crowdfunding to raise $200,000 to buy a video of Toronto mayor Rob Ford smoking crack — in your first month on the job. Over subsequent months, you confront interesting issues involving the First Amendment, freedom of speech, privacy, and intellectual property. Your latest challenge: defending your company as it steps into the ring with Terry Bollea, better known as professional wrestler Hulk Hogan, who’s suing your client for the body-slamming sum of $100 million. The Hulkster claims that his right to privacy was violated when one of your company’s websites posted portions of his sex tape online.

Welcome to the world of Heather Dietrick, president and general counsel of Gawker Media. Who says in-house life is boring?

I met Dietrick last year when I moderated a great panel sponsored by our friends at Betterment about what it’s like to work as the general counsel of a startup company. She regaled the audience with entertaining tales about the legal issues she faces as the top lawyer at Gawker Media, publisher of more than half-a-dozen wildly popular, addictive websites that collectively attract around 64 million readers a month.

I thought to myself at the time that Heather Dietrick would be a superb profile subject someday. Then last month, Nick Denton — the founder and CEO of Gawker Media (and my former boss, for the few months I worked at Wonkette before I launched Above the Law nine years ago) — contacted me with a pitch: with Gawker all over the news because of the Hulk Hogan case, which is about to go to trial, why not write about Dietrick and her supervision of the suit?

Great idea. So last week, I sat down with Dietrick at Gawker’s offices on Elizabeth Street, a few blocks away from Above the Law’s offices. We chatted about her career path, her legal portfolio at Gawker, and, of course, the Hulk Hogan litigation. (Also in the room, but as an unobtrusive presence, was public relations and crisis management guru Davidson Goldin; he has been working with Gawker on press related to Hulkamania.)

Dietrick has been at Gawker for a little more than two years. She had the wonderfully well-rounded résumé you’d expect from the GC of a company like Gawker: she previously worked in-house at Hearst, clerked in the Eastern District of New York, and practiced intellectual-property and media law at two firms (Goodwin Procter and Heller Ehrman). She holds both a JD and an MBA from the University of Michigan — and it’s good that she has some business background, because in a company reorganization last December, Denton promoted Dietrick to serve as president as well as GC of Gawker. She now divides her time between legal and non-legal matters.

When Dietrick arrived at Gawker, she was the only attorney. Now the company’s legal team consists of three lawyers — Dietrick, one colleague who handles litigation matters, one colleague who handles transactional matters — and a paralegal. Gawker Media has around 260 full-time employees, so the legal team is still fairly lean — especially considering the many legal issues generated by running a slew of widely read websites that don’t mind generating controversy.

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Dietrick spends most of her time on media-law issues, including defamation and intellectual-property issues. Gawker does use outside counsel for what she described as “heavy lifting,” but many of the standard issues Gawker’s lawyers handle themselves.

One case where Gawker is definitely using outside counsel: the Hulk Hogan lawsuit, currently scheduled for trial before Judge Pamela Campbell down in St. Petersburg, Florida, starting on July 6 and running for two weeks. To handle Hulkamania, Gawker has turned to a team led by Seth Berlin and Alia Smith of Levine Sullivan Koch & Schulz, one of the nation’s top media law firms, and Gregg D. Thomas of Thomas & LoCicero, a prominent Florida lawyer who’s serving as local counsel.

Despite the involvement of many talented outside lawyers in the Hulk Hogan litigation, Dietrick is spearheading the defense and taking a very hands-on role. She’s spending almost all of her time on the case these days, and she will be in St. Petersburg for the duration of the trial. Why isn’t Dietrick taking the GC role of sitting back and letting outside counsel run the show? The high stakes are certainly part of it. The New York Times has called the Hogan lawsuit “Gawker’s moment of truth”, and Capital New York has dubbed it Gawker’s “fight of its life.”

Hulk Hogan is seeking $100 million in damages. Plaintiffs make over-the-top demands for damages all the time, and as a professional wrestler, Hogan is not one for understatement. But the worst-case scenario, a jury awarding Hogan the full $100 million, would cripple Gawker. As Denton quipped to the Times, “We don’t keep $100 million in the bank, no.” As a result, according to Peter Sterne of Capital New York, “[a] loss, and an award of even a fraction of the $100 million Hogan’s attorneys are seeking, could empty the company’s coffers, forcing Denton to either sell the company outright or to hand much of its equity over to deep-pocketed investors.” (And don’t think that insurance can bail out Gawker; as Dietrick told the Times and confirmed to me, Gawker has exceeded the cap on its insurance in the Hogan case and must now pay out of pocket.)

When I spoke with her last week, though, Dietrick did not seem stressed. Sporting an elegant black blouse and impressively full, white A-line skirt, which she smoothed over her crossed legs from time to time during our conversation, she seemed calm and confident.

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“This case has been aggressively fought on both sides,” she said, “but we have very strong arguments — as recognized by the federal and state appellate courts that have already ruled in our favor in this case.”

In prior proceedings, a federal judge denied Hogan’s motion for a preliminary injunction to force removal of the sex tape from Gawker. A state judge later issued such an injunction but got reversed on appeal. Most recently, a federal judge ordered the FBI to turn over to Gawker certain evidence related to the bureau’s investigation into Hulk Hogan’s sex tape — evidence that Gawker claims could be important to its defense in the Hogan trial.

But now Gawker is before a jury, not judges — a state-court jury in Pinellas County, Florida, where Hulk Hogan is seen by some as a hometown hero. Does this prospect faze Dietrick?

“There’s always risk in going before a jury,” Dietrick said, “but the jurors don’t need to be First Amendment scholars to see the correctness of our position.”

What is Gawker’s position? Under Florida law, an invasion of privacy claim won’t succeed if the published matter is “newsworthy.” The Florida Supreme Court has declared that this “newsworthiness” defense presents a “formidable obstacle” for a plaintiff claiming a privacy violation. Gawker argues that, as the Times puts it, “Mr. Bollea — or Hulk Hogan — has made his sexual proclivities a matter of public interest by talking about them in ‘exceedingly graphic’ terms on his reality TV show, in his two memoirs and elsewhere, including Howard Stern’s radio show.”

“The newsworthiness claim here is a matter of common sense,” Dietrick said. “Hogan’s sex life was covered in dozens of news reports, from TMZ to the New Zealand Herald to the Christian Post. Hogan himself was out there constantly talking about his sex life. There was a lot of speculation surrounding the sex tape itself, including claims that it was a ‘sting operation’ by Bubba [the Love Sponge Clem, husband of Hogan’s partner on the sex tape, Heather Clem]. Our coverage tried to clarify an ongoing news story.”

I raised to Dietrick a point made by my former colleague Kashmir Hill in a story at Fusion: why couldn’t Gawker have written about the video without actually publishing the video? As argued by Professor Danielle Citron, author of Hate Crimes in Cyberspace (affiliate link), “Journalists can write that it was made, but the video itself isn’t newsworthy. We don’t need to see the video. It’s a sacred invasion of privacy and humiliating and exposing.”

“Video evidence is important and compelling,” Dietrick said. “Take the Rob Ford case. John Cook saw the video and wrote about it, then Ford denied. Once the video surfaced, it couldn’t be denied.”

What about screenshots — wouldn’t those have sufficed here?

“Screenshots were posted by other outlets, but people still didn’t know what was going on,” she responded. “It’s a grainy video. You wouldn’t know without watching the video that Bubba comes in and basically blesses the whole encounter.” Indeed, as explained by Capital New York, “Once screenshots of the video were published in early 2012, many speculated online that Bubba had set up the cameras in order to catch Hogan and Clem cheating. Gawker’s publication of excerpts of the sex tape, which revealed that Bubba had encouraged Hogan and Clem to have sex, refuted both of these false narratives.”

Subjects of media coverage, including celebrities like Hulk Hogan, don’t get to dictate how exactly they are covered, according to Dietrick: “Hulk Hogan was putting himself out there, constantly talking about his sex life. He can’t be doing that and then, when someone calls him out, pull out a red pen and say, ‘Take out this part, cross out that part.’ That’s not how reporting works. Celebrities are free to market themselves, and media outlets are free to call them out.” Dietrick added that Gawker also exercised editorial discretion by whittling down the 30-minute video to about 90 seconds of highlights; it didn’t post the video in its entirety.

Let’s concede that watching the video itself is important for getting to the truth about Hulk Hogan’s sex life. Why do we care about Hulk Hogan’s sex life in the first place? Why is that newsworthy or a matter of public concern?

“This is not the Pentagon Papers,” Dietrick acknowledged. “But the First Amendment allows for many stories. They don’t all have to be government secrets. In this case, Hulk Hogan created the story, denying that he would have sex with Heather Clem because it would violate the ‘Bro Code’ with Bubba. The video showed that to be untrue — and also gave the lie to Hulk Hogan’s image as a wholesome all-American icon.”

Dietrick is ready and looking forward to the trial, the first time Gawker has gone to trial in its 12-year history. “I’m confident in our case,” she said, “and I’m looking forward to having the issues sorted out by the jury.”

I asked her: isn’t she worried that a Florida hometown jury might regard Gawker — an irreverent, New York-based website founded by a gay European — with a skeptical eye?

“The jury might look at Hulk Hogan with a skeptical eye,” Dietrick said. With his frequent and frank talk about his sex life, he’s not exactly a saint. It’s also worth noting — even though this wouldn’t get before the jury — that Hogan is something of a serial litigant. As noted by Slate:

Hogan is easily aggrieved. When a woman accused him of sexual battery, he sued her; when his ex-wife Linda alleged domestic abuse in her memoir, he sued her; when a series of back surgeries stopped Hogan from inking a last-hurrah wrestling contract, he sued the surgeon; when his auto insurance failed to cover the cost of his tipsy teenage son recklessly driving his sports car into a tree, causing permanent brain damage to a passenger, Hogan sued his insurance company; when that didn’t work, he sued Linda, too, for not forcing him to be better insured; when Hogan’s lawyers sent the bill for their services, he sued them as well.

For her part, Dietrick is ready to enter the legal ring with the Hulkster.

“I believe in this story,” she said. “At Gawker, we stand by our stories when we believe in them. That’s fundamental to what journalists do. There are lots of stories based on information that someone doesn’t want out there but that it’s important to have it out there.” According to Dietrick, who describes herself on the Gawker website as “a fast walker and a fierce defender of the First Amendment,” this mission is what makes Gawker so great.

I asked Heather Dietrick about the best and worst parts of being the general counsel of Gawker. The worst: the long hours, which are more like Biglaw hours than in-house hours.

And isn’t it stressful? “It’s invigorating,” she said with a chuckle.

The best? Dietrick didn’t hesitate: “Getting to work with so many people devoted to putting true stories out there.”

UPDATE (7/2/2015, 11:30 a.m.): The trial will no longer be going forward on July 6. Gawker just prevailed in the appeals court and secured a petition for mandamus removing the case from the July 6 trial docket.

UPDATE (7/2/2015, 2:00 p.m.): From Heather Dietrick on the change in trial date: “The delay of the trial provides us the important opportunity to find out more about the three Hulk Hogan video recordings obtained by the FBI that appear highly relevant to the facts of the case. We have the right to know the full story and are concerned because one of the tapes produced by the FBI today is incomplete while there is a serious irregularity in another tape.”

(Disclosure: Above the Law Redline, the ATL spinoff aimed at bringing law to a broader audience, is powered by Gawker’s Kinja platform.)

Gawker in the fight of its life with Hulk Hogan sex-tape suit [Capital New York]
Gawker’s Moment of Truth [New York Times]

Earlier: Journo SHOCKED At Cost Of Relatively Cheap Expert Witness