Terry Bollea sought to enjoin Gawker Media, LLC, from publishing and otherwise distributing the written report about his extramarital affair that includes video excerpts from the sexual encounter. The circuit court granted Mr. Bollea's motion for temporary injunction, though it did not articulate the reasons for doing so. On appeal, Gawker Media challenges the circuit court's order, asserting that Mr. Bollea is 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 is an unconstitutional prior restraint. Because the temporary injunction is an unconstitutional prior restraint under the First Amendment, we reverse.
In 2006, Mr. Bollea engaged in extramarital sexual relations with a woman in her home. Allegedly without Mr. Bollea's consent or knowledge, the sexual encounter was videotaped. On or about October 4, 2012, Gawker Media posted a written report about the extramarital affair on its website, including excerpts of the videotaped sexual encounter ("Sex Tape"). Mr. Bollea maintains that he never consented to the Sex Tape's release or publication. Gawker Media maintains 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.
On October 15, 2012, Mr. 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. See Bollea v. Gawker Media, LLC, No. 8:12-cv-02348-T-27TBM, 2012 WL 5509624, at *2 (M.D.Fla. Nov. 14, 2012) (Bollea I). Additionally, on October 16, 2012, Mr. 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. Following a hearing, the federal court issued an order on November 14, 2012, denying the motion for preliminary injunction. See id. at *3-5. The court found that the requested preliminary injunction would be an unconstitutional prior restraint under the First Amendment and that notwithstanding the First Amendment issue, Mr. Bollea otherwise failed to demonstrate that he was entitled to a preliminary injunction under the applicable injunction standard. Id. at *3-4.
II. Applicable Standards
"The primary purpose of a temporary injunction is to preserve the status quo while the merits of the underlying dispute are litigated." Manatee Cnty. v. 1187 Upper James of Fla., LLC, 104 So.3d 1118, 1121 (Fla. 2d DCA 2012). In the context of the media, "the status quo ... is to publish news promptly that editors decide to publish. A restraining order disturbs the status quo and impinges on the exercise of editorial discretion." In re Providence Journal Co., 820 F.2d 1342, 1351 (1st Cir.1986), modified on other grounds on reh'g by 820 F.2d 1354 (1st Cir.), cert. dismissed, United States v. Providence Journal Co., 485 U.S. 693, 108 S.Ct. 1502, 99 L.Ed.2d 785 (1988). A temporary injunction is an "extraordinary remedy" that should be granted "sparingly and only after the moving party has alleged and proved facts entitling [him] to relief." Liberty Fin. Mortg. Corp. v. Clampitt, 667 So.2d 880, 881 (Fla. 2d DCA 1996) (citations omitted).
A temporary injunction aimed at speech, as it is here, "is a classic example of prior restraint on speech triggering First Amendment concerns," Vrasic v. Leibel, 106 So.3d 485, 486 (Fla. 4th DCA 2013), and as such, it is prohibited in all but the most exceptional cases, Near v. Minn. ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Since "prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights," the moving party bears the "heavy burden" of establishing that there are no less extreme measures available to "mitigate the effects of the unrestrained ... public[ation]" and that the restraint will indeed
We generally review orders granting temporary injunctions for an abuse of discretion. Forrest v. Citi Residential Lending, Inc., 73 So.3d 269, 275 (Fla. 2d DCA 2011). However, "[w]e apply a de novo standard of review to the determination of whether a temporary injunction constitutes an unconstitutional prior restraint on free speech." Id. (citation omitted). And though an injunction order generally comes to this court clothed with a presumption of correctness, orders restraining "protected speech must be considered presumptively invalid" and will only be permitted if there are no less restrictive means available. Romero v. Erik G. Abrahamson, P.A., 113 So.3d 870, 872 (Fla. 2d DCA 2012); accord N.Y. Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).
III. First Amendment
It is not clear from the hearing transcript, and certainly not from the order, why the circuit court granted the motion for temporary injunction. Based upon the few interjections the court made during the hearing, it appears that the court believed Mr. Bollea's right to privacy was insurmountable and that publishing the content at issue was otherwise impermissible because it was founded upon illegal actions.
"[W]here matters of purely private significance are at issue, First Amendment protections are often less rigorous." Snyder v. Phelps, ___ U.S. ___, ___, 131 S.Ct. 1207, 1215, 179 L.Ed.2d 172 (2011) (citing Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988)). On the other hand, "`[s]peech on "matters of public concern" ... is "at the heart of the First Amendment's protection."'" Id. (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758-59, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) (plurality opinion)).
Id. at 1216 (citations omitted) (internal quotation marks omitted).
Mr. Bollea, better known by his ring name Hulk Hogan, enjoyed the spotlight as a professional wrestler, and he and his family were depicted in a reality television show detailing their personal lives. Mr. Bollea openly discussed an affair he had while married to Linda Bollea in his published autobiography
In support of his contention that the report and video excerpts do not qualify as matters of public concern, Mr. Bollea relies on Michaels v. Internet Entertainment Group, Inc., 5 F.Supp.2d 823 (C.D.Cal. 1998) (Michaels I), in which the court enjoined the commercial distribution of an entire sex tape that infringed the plaintiffs' copyrights. However, the court in Michaels I found the use of the sex tape to be purely commercial in nature. Specifically, the copyrighted tape was sold via the internet to paying subscribers, and the internet company displayed short segments of the tape as a means of advertisement to increase the number of subscriptions. Id. at 835. In contrast, Gawker Media has not attempted to sell the Sex Tape or any of the material creating the instant controversy, for that matter.
The court in Michaels I pointed out that although "[t]he plaintiffs are entitled to an injunction against uses of their names or likenesses to sell the [sex tape,] [t]he injunction may not reach the use of their names or likenesses to report or comment on matters of public interest." Id. at 838. In accord with this conclusion, the court held in the companion case that the publication of a news report and brief excerpts of the sex tape was not an invasion of privacy and was protected speech. Michaels II, 1998 WL 882848, at *7, *10 (distinguishing the dissemination of an entire sex tape with the use of excerpts from the tape); see also Bollea v. Gawker Media, LLC, 913 F.Supp.2d 1325, 1331 n. 6 (M.D.Fla.2012) (Bollea II) ("[Gawker Media] did not simply post the entire [Sex Tape] — or substantial portions thereof, but rather posted a carefully edited excerpt consisting of less than two minutes of the thirty[-]minute video of which less than ten seconds depicted explicit sexual activity."). Here, the written report and video excerpts are linked to a matter of public concern — Mr. Bollea's extramarital affair and the video evidence of such — as there was ongoing public discussion about the affair and the Sex Tape, including by Mr. Bollea himself. Therefore, Mr. Bollea failed to meet the heavy burden to overcome the presumption that the temporary injunction is invalid as an unconstitutional prior restraint under the First Amendment. As such, it was within Gawker Media's editorial discretion to publish the written report and video excerpts. See Providence Journal, 820 F.2d at 1351; see also Doe v. Sarasota-Bradenton Fla. Television Co., 436 So.2d 328, 331 (Fla. 2d DCA 1983) (noting that it is the primary function of the publisher to determine what is newsworthy and that the court should generally not substitute its judgment for that of the publisher).
B. Unlawful Interception
It appears that the circuit court may have been convinced by Mr.
IV. Collateral Estoppel
Gawker Media asserts that the circuit court's order granting Mr. Bollea's motion for temporary injunction is barred by the doctrine of collateral estoppel because the same issue was decisively adjudicated in the Middle District of Florida on Mr. Bollea's motion for preliminary injunction. Collateral estoppel, referred to as issue preclusion in the federal courts, is a judicial doctrine that prevents relitigation of an issue that has been previously adjudicated. Sea Quest Int'l, Inc. v. Trident Shipworks, Inc., 958 So.2d 1115, 1120 (Fla. 2d DCA 2007). Since the pertinent prior decision was issued by the federal court, the federal rules of preclusion apply. See id. at 1119. Thus, this court must follow the "analysis the federal courts would apply with respect to issue preclusion," the effect of which is to "assume hypothetically" that Mr. Bollea refiled his motion in federal court. See Amador v. Fla. Bd. of Regents ex rel. Fla. Int'l Univ., 830 So.2d 120,122 (Fla. 3d DCA 2002).
Whether or not collateral estoppel applies depends on whether the federal court's order denying Mr. Bollea's motion for a preliminary injunction constitutes judicial finality. See Christo v. Padgett, 223 F.3d 1324, 1339 (11th Cir.2000) ("It is widely recognized that the finality requirement is less stringent for issue preclusion than for claim preclusion."); see also Miller Brewing Co. v. Jos. Schlitz Brewing Co., 605 F.2d 990, 995 (7th Cir.1979) (stating that an interlocutory decision "will be given preclusive effect if it is necessarily based upon a determination that constitutes an insuperable obstacle to the plaintiff's success on the merits"). "`[F]or purposes of issue preclusion ..., "final judgment" includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect.'" Christo, 223 F.3d at 1339 n. 47 (quoting Restatement (Second)
Id. (quoting Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1359 (11th Cir.1998)). Gawker Media contends that all four prongs have been satisfied and that the federal court's prior ruling is a final judgment on the merits of the issues presented by the preliminary injunction itself.
This court has not addressed this exact collateral estoppel issue, nor has the Eleventh Circuit Court of Appeals.
The circuit court's order granting Mr. Bollea's motion for temporary injunction is reversed because it acts as an unconstitutional prior restraint under the First Amendment.
DAVIS, C.J., and ALTENBERND, J., Concur.