Gawker founder Nick Denton (photo by John Pendygraft-Pool/Getty Images)
It is obvious that freedom of the press is under attack. The President of the United States screams “fake news” at every opportunity, and print and broadcast news outlets are increasingly beholden to corporate interests. But one of the biggest threats to journalism in the past few years came from an unlikely source – wrestler Terry “Hulk Hogan” Bollea.
Hogan (to whom I will refer as “Hogan” instead of “Bollea”) successfully sued Gawker after the prominent website published an excerpt from a video of Hogan having sex with the wife of radio personality Bubba “The Love Sponge” Clem. The litigation – financed by billionaire entrepreneur Peter Thiel – bankrupted Gawker and shocked journalists everywhere. The new documentary film Nobody Speak: Trials of the Free Press — from director Brian Knappenberger, available on Netflix, and unfortunately not a sequel to the 1995 No Doubt single “Don’t Speak” — explores the Gawker litigation in detail, evaluating the potential for a chilling effect on journalistic speech. While the documentary is definitely harrowing, I wish it had dug deeper into some of the issues it raises.
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Roughly the first hour of Nobody Speak focuses on the Gawker litigation, beginning with background information on Gawker, its founder Nick Denton, Hogan, and Thiel. It then reviews the highlights from the case, including clips of testimony by Hogan, Denton, and former Gawker editor-in-chief A.J. Daulerio, who wrote the post in question. Nobody Speak then pivots to describe the purchase of the Las Vegas Review-Journal by casino magnate Sheldon Adelson, and the subsequent attempt by the newspaper’s reporters to uncover who exactly had bought their paper. Finally, Nobody Speak briefly examines media and censorship in the age of Trump.
The film does a tremendous job illustrating some of the absurdities of the Gawker trial, such as Hogan’s (successful) argument that Hogan and Bollea are different people, so the fact that Hogan previously bragged about his penis size was irrelevant to whether or not it was newsworthy for Gawker to publish a sex tape involving Bollea. Furthermore, Judge Pamela Campbell made comments at the outset of the trial about the state of online journalism that Gawker and its attorneys thought were inappropriate.
Attorneys will be interested in the depiction of some of the legal strategies that Hogan’s legal team, backed by Thiel, used to prevail. Hogan voluntarily dismissed a cause of action for negligent infliction of emotional distress, and without a negligence-based claim, Gawker’s insurance company dropped its defense, thereby exposing Denton and Daulerio personally. Hogan also settled with Bubba The Love Sponge for a nominal amount, leading to the judge ruling that the jury could not hear another Hogan sex tape in which Hogan used racial epithets.
However, the Gawker portion of Nobody Speak is the rare instance in which I think that a film could have been longer instead of shorter. While the film includes noted First Amendment attorney Floyd Abrams’s description of the First Amendment in the most basic terms – that “even the most disagreeable speech . . . is protected by the First Amendment” – I wish that Nobody Speak delved a little deeper into First Amendment law, such as the “actual malice” standard or the Pentagon Papers case.
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The film also missed an opportunity by not delving deeper into the consequences of the fact that Denton and Daulerio were found to be personally liable for compensatory and punitive damages. The documentary’s cold open consists of a shaken Daulerio describing how he has a hold on his bank account for over $230 million. But the film never really returns to Daulerio’s downfall. And aside from Denton briefly mentioning that he is on the verge of bankruptcy, the film does not really explore how the trial has affected Denton’s life. To me, one of the scariest aspects of the Gawker trial is how journalists’ speech might be chilled in the future due to the possibility of life-altering judgments against them. To not explore this concern in greater detail was a missed opportunity.
The Adelson portion of the film is very strong. Knappenberger effectively depicts the downside of a businessman like Adelson owning the very newspaper that frequently reports on him. In one harrowing portion, prior to Adelson owning the paper, Las Vegas Review-Journal columnist John Smith was sued by Adelson, and Adelson offered to pay for Smith’s daughter’s medical bills if Smith admitted in court that he intentionally meant to hurt Adelson. Smith did not take the offer, and unsurprisingly no longer works at the Review-Journal.
Nobody Speak also tells the story of the enterprising reporters at the Review-Journal who put the pieces together to discover that Adelson — hidden by a web of corporate entities — was behind the purchase of the paper. The vast majority of those reporters no longer work at the Review-Journal. However, while Jeff Bezos’s acquisition of The Washington Post is briefly mentioned, Nobody Speak neglects to discuss the broader implications of corporate ownership of media and the potential conflicts of interest, beyond Adelson. This also represented a missed opportunity — in an otherwise engaging film about a subject of critical importance today.
Harry Graff is a litigation associate at a firm, but he spends days wishing that he was writing about film, television, literature, and pop culture instead of writing briefs. If there is a law-related movie, television show, book, or any other form of media that you would like Harry Graff to discuss, he can be reached at [email protected]. Be sure to follow Harry Graff on Twitter at @harrygraff19.