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ESPN is no Gawker, but the sports giant is now facing the prospect of a trial in Florida that has shades of the litigation brought by Hulk Hogan over an invasion of privacy.
New York Giants defensive end Jason Pierre-Paul is suing ESPN and star reporter Adam Schefter over a tweet that revealed an amputated right finger as a result of a July 4 celebration last year. The NFL star asserts he suffered great damage when Schefter showed his four million followers a copy of Pierre-Paul’s medical chart. But despite ESPN’s First Amendment arguments, a judge on Thursday rejected ESPN’s attempt to dismiss, according to a statement from Pierre-Paul’s attorney.
ESPN, represented by the same lawyers that represented Gawker, argued that courts “have consistently recognized that a journalist is entitled to include visual evidence corroborating a report on a matter of public concern.”
“[Pierre-Paul’s] lawsuit proceeds on the theory that while it was legitimate for Mr. Schefter to report the details of Plaintiff’s medical treatment in the form of words contained in a news report, it was unlawful for him to definitively corroborate his reporting by also providing two photos of a small portion of a page of hospital records that contained essentially the same words,” stated a motion to dismiss. “Put another way, Plaintiff’s theory is that it is fine to quote from a document, but it is unlawful to attach a photo of similar words as they appear in the document. That proposition is meritless, as a matter of both law and common sense.”
Pierre-Paul’s lawyers, of course, had a different perspective, highlighting the fact that Schefter allegedly improperly obtained Plaintiff’s medical records and warning the judge of the societal repercussions for rejecting their claim.
“If the hospitalization of a public figure constituted authorization for the publication of that person’s medical records, then the right to privacy would be non-existent,” Pierre-Paul’s attorneys wrote in opposition to the motion to dismiss. “Indeed, public figures would hesitate to seek medical treatment, or be less likely to share certain information with health care professionals, out of fear that hospital personnel would sell their medical records to those who want to profit from the publication thereof (as ESPN did here), thereby negatively impacting their health. That is not the purpose of the First Amendment.”
The judge ruled from the bench, according to local news reports. If the judge later provides a fuller explanation of reasoning behind Thursday’s decision with a written opinion, that will be added to this story.
Until then, besides the difference in a sex tape and a medical chart, there’s another key factor in Hogan’s battle with Gawker and Pierre-Paul’s battle with ESPN.
ESPN attempted to strike the lawsuit as an impingement of its First Amendment rights under an anti-SLAPP statute that was recently enacted by Florida’s legislators. This wasn’t available to Gawker when it was sued. A question that could arise is the possibility of an interlocutory appeal before any trial. If that were to happen, it’s possible that a Florida appeals court could weigh in on the line between privacy and free speech even before Gawker gets its own attempt to overturn a $140 million judgment.
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