Ventura in the ring.

Photographer: Craig Lassig/AFP/Getty Images

Jesse Ventura's First Amendment Lesson

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Unless you followed professional wrestling in the 1980s, you might be tempted to confuse Hulk Hogan with Jesse “The Body” Ventura. To make matters even more confusing, both have been involved in high-profile defamation suits.

But while a Florida court’s $140 million verdict for Hogan against Gawker still stands, Ventura hasn’t fared so well in his lawsuit against the estate of Chris Kyle, the former SEAL who wrote the book “American Sniper” and was depicted in the movie of the same name. On Monday, a federal appeals court overturned the jury’s judgment in Ventura’s favor.

The different outcomes in the two cases underscores that appellate courts should be protecting the First Amendment, not caving in to public pressure on media outlets.

In the spectacle of professional wrestling, Hogan was a “face,” or good guy; Ventura was a “heel.” Another trick to tell the two apart is to remember that before wrestling, Ventura was a Navy special forces operator, also known as a SEAL; and afterwards, he served a term as governor of Minnesota. Hogan had no such distinguished public service on either side of his wrestling career.

In his book “American Sniper,” Kyle told the story of a SEAL gathering at a bar in Coronado, California, in October 2006 after the funeral of a fellow SEAL. Kyle described an altercation he had with a former operator he nicknamed “Scruff Face,” who he said was criticizing U.S. involvement in the Iraq war. “Scruff says he hates America,” Kyle wrote.

As Kyle told it in his book, he confronted Scruff and a fight ensued. While publicizing his book on Bill O’Reilly’s Fox News show in 2014, Kyle said that Scruff was actually Ventura. The claim attracted media attention, as did the book. Eventually it sold some 1.5 million copies and became a movie.

Ventura didn’t take the insult lying down. Alleging that Kyle had made up the whole incident, Ventura sued Kyle in federal district court on three theories grounded in Minnesota state law: defamation, misappropriation and unjust enrichment.

After Kyle was tragically murdered by a troubled Marine Corps veteran in 2013, the suit went on, now against Kyle’s estate.

The jury heard testimony from Ventura’s friends that the incident never happened, and from Kyle’s friends that it did. Clearly unsure how to resolve the case, the jury took a long time deliberating and eventually decided 8-2 for Ventura on the defamation claim and awarded him $500,000. It also found that Kyle had been unjustly enriched and recommended some $1.35 million in damages. It rejected Ventura’s misappropriation claim.

Kyle’s estate appealed, supported in friend-of-the-court briefs by 33 media companies and a group of First Amendment scholars. The U.S. Court of Appeals for the Eighth Circuit vacated the defamation judgment and sent it back to the court to hear it again. And it overturned the unjust enrichment claim entirely.

In rejecting the defamation claim, the court focused not on the First Amendment, but on insurance questions that might have influenced the jury by suggesting who would ultimately have to pay for an award.

The appeals court said in a 2-1 decision that the insurance questions were improper because no evidence had been admitted to prove that the book publisher had an insurance policy that would cover the costs. One judge dissented, arguing very plausibly that the brief mentions of the possible insurance policy wouldn’t have prejudiced the jury.

But what the dissent effectively demonstrates is that the 8th Circuit was trying to find a way to overturn the defamation verdict in the hopes that it would make the case go away. To be sure, Ventura can sue again on his defamation theory in the district court. But he will now realize that the appeals court is against him, and it would probably be a waste of money for him to try again.

The contrast couldn’t be stronger between the Eighth Circuit’s decision and the Florida state court that decided in favor of Hulk Hogan in his suit against Gawker -- not to mention the intermediate state appellate court that upheld some aspects of the Gawker trial last month. The Florida courts have so far failed to realize that Gawker should be protected by the First Amendment because the sex tape it posted, as unsavory as it may be, was relevant to Hogan’s status as a public figure who had discussed his sex life repeatedly on Howard Stern’s radio show.

Eventually, the Gawker verdict is likely to be overturned. But in the meantime, Gawker has filed for bankruptcy. The courts’ delay in correctly applying the law is having a direct impact on free speech. The revelation that billionaire Peter Thiel helped pay for Hogan’s suit out of hostility to Gawker matters less than the fact that the Florida courts, not Thiel, are undercutting the freedom of the press.

The 8th Circuit is showing what the Florida judges should be doing: using all legal means available to protect freedom of expression. In this sense, the Ventura appeal should be a model for the Hogan appeals yet to come.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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