From a moral and legal perspective, adultery is never a good idea. This is especially the case when the "other woman" is your best friend's wife.

Back in 2006, a prehistoric era on the Internet timeline, ex-wrestler Hulk Hogan, aka Terry Bollea, exercised the poor judgment of cuckholding his best friend, the radio personality known as Bubba-the-Love-Sponge Clem. Apparently, the encounter was covertly recorded by Clem's wife, Heather.  Fast forward to 2012, and the sex tape wound-up in the hands of Gawker.

The snarky website posted a 40-second excerpt of the tryst, claiming an anonymous source and disavowing payment for the video. Hulk, of course, took issue and sued, enjoining Gawker to remove the post; he is seeking $100 million in damages from the site.

The lawsuit, Terry Bollea vs Gawker, has bounced between federal court and the Pinellas County Circuit Court, with appeals in both courts, over the past three years. Now, however, the case threatens to undo the otherwise financially healthy alternative media site as it heads to a jury trial next month in St. Petersburg, Florida.

Initially, the complaint alleged invasion of privacy, intentional infliction of emotional distress, publication of private facts, misappropriation of Hulk's publicity rights, and in an amended complaint, infringement of copyright.

Hulk's lawyers got started in federal court where his several requests for a preliminary injunction to take down the video were denied by the federal judge assigned to the case. In an obvious attempt to defeat diversity jurisdiction -the only way into federal court without raising a federal question- Hogan dismissed his federal suit with an appeal pending before the 11th Circuit, and re-filed in state court, belatedly naming Heather, his former lover and best friend's wife, as a defendant. As a Floridian, her presence in the lawsuit defeats the diversity jurisdiction of the federal court.

This procedural maneuver worked to the extent that a county circuit judge granted Hogan's request for a preliminary injunction [although reversed by a Florida appeals court], denied Gawker's motion for summary disposition, and where the case now heads to trial in the Hulkster's own back yard. In reversing the trial court's injunction, the Florida appeals court relied on the rationale set forth in the federal judge's opinion denying that same request.

The case is interesting not for its salaciousness -although this post will certainly get more clicks than average due to the content- but because it pits the post-modern concept of privacy against the ever-more intrusive lens of the digital media.

Although Gawker's founder, Nick Denton, has publicly decried that a significant damage award will rent his company asunder, we here at the Law Blogger like his chances; if not at trial, certainly on appeal. The trial will feature folks living in and around Hulk Hogan's neighborhood, making fact findings in a case pitting the local hero against a media outlet from New York City.

On the other hand, Gawker did not get the scoop on this sex tape; it's existence was much commented about in the celebrity media. Also, while Hulk cries "privacy", he's published a book with references to his affairs and sexploits, and has made numerous public statements about these topics while basking in the public spotlight.  Again, we like Gawker's chances.

Most of these media cases settle privately for an undisclosed settlement. In this case, the Hulkster is too pissed to settle; he's a wrestler scorned so, get some cover and get ready for the rumble.

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