ST. PETERSBURG — He was supposed to be Gawker's star witness, but now he won't be taking the stand at all.
On Wednesday, Tampa radio personality Bubba the Love Sponge Clem — his legal name — wriggled out of a courthouse appearance by exercising his Fifth Amendment right against self-incrimination. In doing so, he ensured he would not have to testify in the trial of a lawsuit that revolves around a sex tape he made in 2007, featuring his then-wife Heather Clem and the former wrestler Hulk Hogan.
Hogan, whose real name is Terry Bollea, sued Gawker in 2012 after the website published a one-minute and 41-second excerpt of the video, which Clem recorded using his home security system. Bollea is demanding $100 million in damages.
Originally a target of the lawsuit, Clem went on the radio and blasted Bollea, claiming the former wrestler knew all along that he was being filmed. But within a matter of weeks, the two had reached a settlement.
In return for the modest sum of $5,000 and Clem's promise to aid him in his case against Gawker, Bollea dropped the suit. Clem quickly changed his story. When he sat for a deposition, he said under oath that he had filmed his former best friend covertly.
According to Gawker's attorneys, Clem changed his tune again, at one point telling FBI investigators that he, his then-wife, and Bollea all knew the sexual encounter was being filmed.
This flip-flopping made Clem an ideal witness for Gawker. At one point earlier this week, Gawker attorney Michael Berry referred to the DJ as a "pathological ... untrustworthy person."
But despite Gawker's objections, Clem's move to quash Gawker's subpoena was successful. His attorney argued that if he was made to take the stand and address his multiple conflicting statements, he could be sued for perjury. He could also potentially face prosecution for making the sex tape, as recording someone without their consent is illegal in Florida.
"The plaintiff has decided to go after us while settling with the one person who knows the truth," Berry said. "It's a rigged game at this point."
In addition to questioning Clem about his statements to the FBI, Gawker's attorneys had hoped to ask him whether he conspired with Bollea to release the sex tape. They contend that by 2012, Bollea was worried about running out of money, and may have been motivated to shop around the video for cash.
On Wednesday, jurors were shown parts of Heather Clem's deposition in which she said that her ex-husband had filmed her sexual liaisons with other men besides Bollea. She said that in those instances, she knew she was being filmed, and was aware there was a camera trained on her and Clem's bed. But she maintained she had no idea her encounter with Bollea was being videotaped.
Keep up with Tampa Bay’s top headlines
Subscribe to our free DayStarter newsletter
You’re all signed up!
Want more of our free, weekly newsletters in your inbox? Let’s get started.Explore all your options
Gawkers' attorneys hoped to be able to tell jurors that they had tried to subpoena Clem.
"They must be sitting there scratching their heads," wondering why the sex tape's creator hasn't taken the stand, said Gawker attorney Michael Sullivan.
But here again they met with resistance.
On Wednesday, Pinellas-Pasco Circuit Judge Pamela Campbell ruled that jurors could only be told that Clem was "unavailable" to testify.
Bollea attorney David Houston said his side had never planned to call on Clem as a witness.
"Our goal in this particular instance was not to have anything to do really with Mr. Clem," Houston said.
Heading into the final days of the trial, he said he was confident Bollea would prevail:
"They have not, in the parlance of Joe Louis, laid a glove on us."
Contact Anna M. Phillips at email@example.com or (813) 226-3354. Follow @annamphillips.