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Radio personality Bubba Clem, known best as Bubba the Love Sponge, will not testify in the lawsuit case between Gawker Media and wrestling star Hulk Hogan.
Instead, Bubba was represented by an attorney, who told the judge that the shock jock was going to exercise his Fifth Amendment right not to self-incriminate.
The Judge informed the 9-person jury of the update on Day 9 of the trail.
Hogan, whose real name is Terry Bollea, is suing the website Gawker for publishing a sex video of him.
The FBI investigated after the video was leaked to the website.
On Thursday morning, the lawyers for Gawker Media showed video deposition of Terry Bollea in 2014, in which he was questioned about his Hulk Hogan character.
Lawyers had Bollea explain that his character is not consistent. For instance, Bollea explained, when he filmed a commercial for a website called Hostmania, he was playing a different version of his Hulk Hogan character.
"It's not consistent with Terry Bollea at all," explained Bollea of the character he played in the commercial in which he imitates Miley Cyrus's "Wrecking Ball" music video. "It's consistent with the Hulk Hogan of Hostmania," explains Bollea.
"It's kind of like a middle ground," said Bollea. "It's an in-between character."
Gawker's lawyers may use this testimony to show that there's no way Gawker could know when Bollea is in character and when he isn't when he publicly and graphically described his sex life in a reality TV show and on the radio with people like Howard Stern and Bubba the Love Sponge.
The judge later told jurors they should hear closing arguments Friday.
On Wednesday, the jury watched deposition video of Heather Cole, the ex-wife of Bubba.
During that deposition, Cole said she did know that her then-husband took video of her sexual encounters with other men, but claimed to be unaware that her sexual encounter with Terry Bollea was caught on camera.
She also testified that she didn't think Bollea knew he was being taped.
"To the best of my knowledge I can think of three times" said Cole about how many times she had with Bollea, saying the sexual relationship began about 1 year after she wed Bubba.
Cole says she was made aware of the sex video "several weeks" after the third time she had sex with Hogan, and said she was made to believe, during her divorce process with Bubba, that the video had been destroyed.
Also on Wednesday, day eight of the ongoing trial in St. Petersburg, Gawker brought in Peter Horan a "damages expert" who told the court that he thought Gawker made a minimal about of money off the sex tape, because the media company made an editorial decision not to put ads on that web page.
Earlier in the trial, the 62-year-old Hogan said during testimony he was "humiliated" when the video of him having sex with his then-best friend's wife was released.
Also on Wednesday morning, a Judge of the District Court of Appeals for the State of Florida in Lakeland ordered that previous orders to keep documents related to the FBI investigation sealed are "quashed" and should be made public.
Bollea's lawyers have consistently fought to keep the documents private. An employee of the court said the original sex tape is not among the sealed documents, but legal experts speculate that there may be motions to keep certain depositions private, including conversations between Clem or Bollea and the FBI that might reveal the extent to which each was involved, if at all, in the making the sex tape.
Salacious details aside, this is the trial's core issue: Did Gawker have the right to post one minute and forty one seconds of the sex tape?
Hogan and his lawyers say no, that Gawker invaded his privacy, which is why he's suing for $100 million, saying the posting of the video caused him severe emotional distress. If Gawker loses, the scrappy media empire could be in serious financial trouble.
Hogan attained pro wrestling stardom in the 1980s and 1990s, winning multiple championships. He also became a celebrity outside his "Hulkamania" fan base, appearing in numerous movies and television shows, including a reality show about his life on VH1, "Hogan Knows Best."
During cross-examination, an attorney for Gawker questioned Hogan about inconsistencies in his testimony and media interviews. Hogan testified that he didn't watch the video when he discovered its existence; during a media interview he said he did. And Hogan said he didn't know he was being videoed when he had sex with Heather Clem. But in media interviews in 2012, Hogan said he asked Bubba Clem if he was being filmed.
"I was probably in the Hulk Hogan mode," Hogan said in court, defending the inconsistencies. "It gives you artistic ability, to be a character."
Gawker filed a public records request for more information about that investigation. The judge in the case ordered it released, but then sealed the case’s record when that information was put into the civil suit’s public record.
That prompted several companies – including the Associated Press and Scripps Media, which owns ABC Action News – to ask the judge to unseal the records.
"There is a fine line that is really at issue here, that is the difference between what a public figure makes public and what a public figure has the right to keep private," explains Thomas M. Cooley Law School Professor Jeff Swartz to ABC Action News. "That is, how far does the public have the right to delve into a public figure's private life?"
Swartz is a former Miami-Dade County Circuit Court judge and former prominent attorney. He says Gawker Media has filed several motions to try to stain Bollea's character and decrease the amount of damages, even if Gawker were to lose the case.
"[Bollea] is claiming the fact that I talk about my sex life doesn’t mean you have the right to disclose what I do in the privacy of bedroom. That is, what I choose to let you know, I choose to let you know. What I don’t want you to know, you don’t have the right to know," adds Swartz.
