Gawker Media, LLC v. Bollea - 129 So. 3d 1196 (Fla. Dist. Ct. App. 2014)

Rule:

If a publisher lawfully obtains the information in question, the speech is protected by the First Amendment, U.S. Const. amend. I, provided it is a matter of public concern, even if the source recorded it unlawfully.

Facts:

In 2006, Terry Bollea engaged in extramarital sexual relations with a woman in her home. Allegedly without Bollea’s consent or knowledge, the sexual encounter was videotaped. In 2012, Gawker Media, LLC posted a written report about the extramarital affair on its website, including excerpts of the videotaped sexual encounter ("Sex Tape"). Bollea maintained that he never consented to the Sex Tape's release or publication. Gawker Media maintained that it was not responsible for creating the Sex Tape and that it received a copy of the Sex Tape from an anonymous source for no compensation. Subsequently, Bollea initiated an action in federal court by filing a multicount complaint against Gawker Media and others, asserting claims for invasion of privacy, publication of private facts, violation of the right of publicity, and infliction of emotional distress. Additionally, Bollea filed a motion for preliminary injunction, seeking to enjoin the named defendants from publishing any portion of or any content from the Sex Tape. The federal court issued an order denying the motion for preliminary injunction, finding that the requested preliminary injunction would be an unconstitutional prior restraint under the First Amendment and that notwithstanding the First Amendment issue, Bollea otherwise failed to demonstrate that he was entitled to a preliminary injunction under the applicable injunction standard. Bollea voluntarily dismissed the federal action. That same day, Bollea filed an amended complaint in state circuit court, asserting essentially the same claims that he asserted in federal court. Thereafter, Bollea filed a motion for temporary injunction seeking to enjoin Gawker Media and others from publishing and otherwise distributing the video excerpts from the sexual encounter and complementary written report. The circuit court granted the motion for temporary injunction. Gawker Media challenged the circuit court's order, asserting that Bollea was collaterally estopped from seeking the same relief previously sought and decisively denied in federal court, and should the doctrine of collateral estoppel be inapplicable, that such relief was an unconstitutional prior restraint.

Issue:

Was the temporary injunction an unconstitutional prior restraint under the First Amendment? 

Answer:

Yes.

Conclusion:

The court reversed the judgment of the circuit court, holding that the temporary injunction was an unconstitutional prior restraint under the First Amendment, U.S. Const. amend. I. As a result of the public controversy surrounding the affair and the sex tape, exacerbated in part by Bollea himself, the report and the related video excerpts addressed matters of public concern. Moreover, Gawker Media did not attempt to sell the sex tape or any of the material creating the controversy, but reported on Bollea’s extramarital affair and complementary thereto posted excerpts from the video. According to the court, the sex tape was protected by the First Amendment, even if it was created illegally under §§ 810.145(2)(a) and 934.03, Fla. Stat. (2006), as Gawker Media was not responsible for its creation and did not obtain it unlawfully.