Originally published at Death and Taxes, ed. Brian Abrams, 21 March 2016.
Grateful thanks to the Internet Archive for preserving this work.
As the six-member jury deliberated Friday afternoon in the Hulk Hogan/Gawker Media trial in warm, muggy St. Petersburg, the Second District Court of Appeals in nearby Lakeland released an enormous trove of documents that had been improperly sealed in the case by trial court judge Pamela Campbell.
Gawker’s lawyers had fought furiously to make sure the jury and media could see these documents — and Hogan’s lawyers fought just as furiously to suppress them — but Hogan’s lawyers won out with the Florida judge, as they have at nearly every point in the proceedings. The jury never saw any of these materials before they handed out their $115 million award of damages against Gawker, just hours after the documents were unsealed, and silence reigned for once in the disorderly, cable-strewn press room, as every reporter attempted to mind-meld with the contents on their laptops.
After a necessarily cursory review of this mountain of new evidence, a few things stand out very sharply. Most significantly, Hogan’s real fear all along wasn’t exposure of his private sexual conduct; it was that the racial slurs he made in one of the sex tapes would be exposed. This fear was well-grounded, for the moment his shockingly racist rant was made public last summer, Hogan was instantaneously disgraced and his professional reputation incinerated. His name was stripped from every corner of the WWE website, presumably resulting in a substantial loss of income.
Those following the case closely had had their suspicions about what these documents might contain, and they were right: They include evidence, gathered by the FBI, as part of an investigation into an alleged extortion of Hogan with respect to the sex tapes. An attorney named Keith Davidson, representing the possessor of the tapes, contacted David Houston, Hogan’s personal lawyer, to arrange their sale to Hogan. Houston then contacted the FBI, who set up a sting, complete with a dummy check and a signed contract covering the sale of the tapes.
A letter to Houston dated September 3, 2013 from A. Lee Bentley III, Acting United States Attorney, describes the return of some of this evidence to the Hogan camp, including various documents, such as “check 1127 for $150,000 to Keith Davidson from David Houston” and “three DVD recordings in a silver/black case.” Unfortunately for Hogan, the U.S. Attorney added that the DVDs would be held pending the outcome of the Hogan/Gawker trial, and that they would be handed over to “whichever party is found to be the rightful possessor.”
During the trial, Gawker’s lawyers argued that if Hogan had really experienced the severe “emotional distress” he claimed, he would surely have sued one of the media outlets that broke the story in the months before Gawker published their commentary and video excerpt — a reasonable supposition. Because the potential exposure of his racism appears to have precipitated the lawsuit, rather than the exposure of his bare posterior, it seems altogether likely that the $60 million granted by the jury for Hogan’s “emotional distress” over the exposure of his sex life might well be, mm, revisited, shall we say, by the appellate court when the time comes.
Secondly, it turns out there were at least three Hogan/Heather Clem sex tapes, which Clem referred to (Appendix II, page 608) as the ultimate “fuck you” to her ex-husband. She has certainly lied under oath, either to the FBI or in the video deposition shown to the jury last week; either way, she is an excellent liar. Her ex-husband, Bubba Clem, appears to have recovered the DVDs (or copies of them) from her and stored them in his office, whence they were boosted at some point before October of 2012, shopped to Hogan, and leaked to TMZ, TheDirty.com, Gawker and other outlets. Reporter David Bixenspan unearthed the original, eye-popping Tampa Police Department report of the theft, and wrote a most thoughtful analysis thereof back in November.
According to that police report, Florida radio personality Matt “Spiceboy” Loyd stole the DVDs from Bubba Clem, attempted to sell them to Hogan through the offices of attorney Davidson, and leaked one of the tapes to Gawker as a sort of warning shot across the Hogan bows. These three tapes were the subject of a sting operation, carried out by the FBI at the behest of Hogan’s personal lawyer; a payment of $300,000 was arranged, a sham check cut in the name of Keith Davidson, a contract was drawn up — and, at the end of the meeting, the FBI swooped in and made arrests.
But the mystery remains of why nobody has been charged in the alleged theft of the DVDs, despite the deep involvement of the federales. I (a layperson, to be sure) am at a loss as to why this failure to prosecute would be. Heather Clem’s potential involvement arises as a possibility. If she caused the tapes to be made, and can assert legitimate ownership in them, would that preclude law enforcement from charging her? Or was it merely that the tapes had been discussed and aired in public for so long that there would be too much reasonable doubt as to the identity of a specific leaker?
Heather Clem’s involvement seems to me to be indicated, if only because it would explain why such a long time elapsed between the taping of the Hogan/Clem tryst and its exposure in the media. Local newspapers reported that the Clems’ divorce was made final in February of 2012, and that owing to a prenuptial agreement, Heather Clem’s divorce settlement was modest. Though she reported monthly expenses of $16,000, Bubba Clem eventually settled just $1,150 per month with her in alimony, set to expire this year, plus a lump sum of $20,000. A pittance, to someone who’s become accustomed to a luxurious lifestyle.
I’d heard this theory of Heather Clem’s participation before — the “Gone Girl” theory of Heather Clem, if you like — but was entirely taken in by the simplicity and softness of her video deposition at trial. I find these exotic marital arrangements totally bamboozling, and have no insight into what might constitute an unbreakable rift in such a marriage. But clearly there is bad blood between the former spouses, as their still-frequent sparring on Twitter clearly indicates.
The final and most striking conclusion to be drawn from the unsealed documents is that it’s certain that a really breathtaking number of lies were told in that St. Petersburg courtroom. I mean, either there, or to the FBI. Many of the witnesses in the Hogan/Gawker trial gave evidence to the FBI that directly contradicts their sworn testimonies in St. Petersburg. It is very, very hard to sort through the lies, between the media reports and all the conflicting testimony. Hogan knew, or did not know, that there were cameras in the Clems’ bedroom, where the tape was made. Heather Clem quite clearly knew that there was a tape; definitely, she lied in her sworn deposition in the Gawker case about that, since she describes to her husband, in the unsealed documents, the “squirming” faces he will see her making in the film she allegedly knew nothing about.
There is also FBI evidence suggesting that making the tapes was her idea. Bubba Clem has spouted so much conflicting information that I tried for an hour to sort it all out, and finally had to give up. All three of them knew the tape was being made; Hogan did not know; Heather has been wronged; Heather is an evil woman whom he’s embarrassed to have married. Does any of it really matter at this point?
Late in the afternoon Wednesday, a few reporters buttonholed David Houston, Hogan’s personal attorney, who gave us a fire-and-brimstone speech about how shameless Gawker is, and how Gawker was trying to “pull the New York wool” over the eyes of the jury. He characterized Gawker as “desperate” and expressed confidence that the trial would be going Hogan’s way. He also admitted the possibility that the order to unseal documents might alter the Hogan team’s strategy. “It’s a work in progress,” he said.
Houston’s assured manner was somewhat at odds with what we learned hours later, namely, that the Hogan side had filed an emergency motion to prevent the documents from being unsealed. Since the emergency motion would be considered by the same panel of three judges who ordered to unseal the documents in the first place, reporters deemed it likely that the motion would be dismissed. We stood a good chance of getting hold of the documents directly from the Second Court of Appeals, since the Pinellas County court did not appear to want to play ball, despite having been ordered to do so. In the event, we wouldn’t get hold of them until late Friday afternoon.
Bubba Clem is the only person on earth who might conceivably be construed as having invaded Hogan’s privacy by filming him having sex. He does not exactly have a sterling reputation so far as telling the truth is concerned. Then again, nobody on the Hogan side does. On balance, I’m tempted to believe what Clem conclusively stated during his October 16, 2012, morning show on WHPT-FM/102.5: Hogan knew he was being filmed. “There were three people in that room,” Clem told his listeners, “and they all knew what time it was.”
[photos: Tampa Bay Times]